author: Boggs, Judge.

text:
    A11A1881.
    ROYAL v. THE STATE.
    (723 SE2d 118)
   Boggs, Judge.

In this interlocutory appeal, Luther Royal appeals from the trial court’s order denying his motion to dismiss, special demurrer and motion to quash, and plea in bar with respect to Counts 1 through 16 (insurance fraud) and Count 19 (theft by taking) of the indictment. With regard to all specified counts, each of these motions asserted that the statute of limitation had expired because the State had actual knowledge of the crimes more than four years before indicting Royal. With regard to Count 19, Royal contended that the indictment fails to state “any factual basis to indicate how the alleged criminal acts were supposed to have been committed.” For the reasons explained below, we reject Royal’s statute of limitation argument as to all specified counts and dismiss as moot his claim with regard to Count 19 of the indictment.

1. Based upon the four-year statute of limitation applicable to the crimes with which he was charged, OCGA § 17-3-1 (c), his interpretation of the tolling period provided by OCGA § 17-3-2 (2), and the facts presented to the trial court, Royal contends that the trial court erred by denying his motion. We disagree.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issue[s] of law[ ]. As this ruling involves a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

(Citation, punctuation and footnote omitted.) State v. Campbell, 295 Ga. App. 856 (673 SE2d 336) (2009). So viewed, the record shows that Royal received total and residual disability benefits for an injury he received in June of 2002. The policy was issued by New York Life and administered by Paul Revere Insurance Company through its umbrella company, UNUM Provident (“UNUM”).

On May 3, 2006, an employee of Royal called UNUM’s fraud hotline and reported that Royal was receiving disability payments even though he “was in the office all day conducting the same level of work he has . . . always conducted.” She also reported that he took extended motorcycle trips and that “a surv[eillance] team would show significant activity.” UNUM forwarded the tip to one of its investigators, who requested a copy of Royal’s claims file from the UNUM claims representative assigned to it. He also talked with the tipster.

The investigator testified that he did not automatically believe the employee based on her word alone, but that after talking with the claims representative handling Royal’s claim, they decided to conduct surveillance. Surveillance performed on three occasions in June 2006 did not confirm the tipster’s allegations. After the surveillance failed to substantiate the tipster’s report that a crime had been committed, the investigator traveled to Georgia from Tennessee on July 5, 2006 to meet with the tipster and review any documents supporting her fraud claims. Based on documentation provided during that interview, the investigator believed he had some corroboration of the employee’s allegations, but it was not “enough at that point” to report the suspected insurance fraud to the insurance commissioner. The investigator explained that he wanted supporting documents because

[tjhere’s no way we could go on just the word of — an individual calling in telling us this. . . . [T]he company takes very seriously the relationship between the company and our insured. . . . [W]e realize that what my job leads to in many cases is what we’re doing here today in the criminal process, so we take that very seriously and we’re not going to make a harsh judgment or — or to turn somebody — throw somebody into that system when we don’t have everything that we feel has convinced us that we have a reasonable suspicion that we need to do it and meet our mandatory reporting requirements.

After the interview of another witness on August 1, 2006, the investigator talked with an investigator with the Georgia Office of Insurance. On August 10, 2006, the insurance investigator filed a formal referral of suspected insurance fraud to the Georgia Office of Insurance.

Royal contends the specified counts are barred by the four-year statute of limitation because the victim, UNUM, had actual knowledge of the crime at the time of the tip on May 3, 2006, and the State indicted him more than four years later on July 1, 2010. OCGA § 17-3-2 (2) provides that “[t]he period within which a prosecution must be commenced . . . does not include any period in which . . . [t]he person committing the crime is unknown or the crime is unknown.”

Under this statute, “[t]he crime victim’s knowledge of the crime is imputed to the State.” Campbell, supra, 295 Ga. App. at 857. See also Womack v. State, 260 Ga. 21, 22 (3) (389 SE2d 240) (1990). But, the victim must have “actual knowledge, not constructive knowledge, of the crime. [Cit.]” State v. Robins, 296 Ga. App. 437, 439 (1) (674 SE2d 615) (2009). “The tolling period is not extinguished when the injured party should have known-, rather, it ends when the injured party has actual knowledge of the crime.” (Emphasis in original.) Campbell, supra, 295 Ga. App. at 858. In other words, there must be “knowledge of the act itself. [Cit.]” Robins, supra, 296 Ga. App. at 439 (1).

In this case, the record shows that the employee calling the fraud hotline may have had actual knowledge of the crime on May 3, 2006, but the defrauded insurance company, the victim, did not acquire actual knowledge of the specific acts constituting the crime until July 5, 2006. Based on these facts, the trial court did not clearly err by finding that the victim insurance company first had actual knowledge of the crime on July 5, 2006. See Higgenbottom v. State, 290 Ga. 198, 204 (719 SE2d 482) (2011) (interview of defendant during investigative process could not be equated with actual knowledge of perpetrator’s identity); Campbell, supra, 295 Ga. App. at 858. Because the State filed its indictment against Royal less than four years later, it met its burden of proving the applicability of the tolling statute, Merritt v. State, 254 Ga. App. 788, 789 (1) (a) (564 SE2d 3) (2002), and the trial court did not err by rejecting Royal’s statute of limitation defense.

The Supreme Court’s decision in Jenkins v. State, 278 Ga. 598 (604 SE2d 789) (2004), does not require a different result because in Jenkins, the State had actual knowledge of both the crime and the defendant’s identity more than four years before indicting him. Id. at 600 (1). Specifically, the State had DNA test results identifying the defendant’s DNA on a cigarette butt, “but the frequency [of the DNA evidence], 1/1000, was relatively low.” Id. at 602 (1) (A). The district attorney did not believe this evidence was sufficient to indict the defendant and waited until an additional review of existing evidence more firmly identified the defendant before indicting him more than seven years later. Id. at 601-602 (1) (A). The Supreme Court affirmed the trial court’s grant of the defendant’s motion to dismiss the indictment, reasoning that

[t]he tolling exception to the statute of limitations cannot be based upon the subjective opinion of the district attorney as to whether there was enough evidence to file charges against a particular person. Otherwise, there would be tolling of the statute of limitations for routine investigation into a crime; the State could build a case against a non-murder suspect for five or ten years and then file charges when it believes that it has obtained sufficient evidence by claiming that the statute of limitations was tolled until that moment. Such a broad interpretation of the tolling period would permit the exception to swallow the rule. The evidence shows that the State had actual knowledge of [the defendant]’s identity as a suspect for the crimes shortly after they were committed, but it did not indict him until more than seven years had elapsed. Therefore, we affirm the trial court’s ruling on the dismissal of the non-murder charges due to the expiration of the statute of limitations.

Decided February 7, 2012

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., for appellant.

Joseph F. Burford, Gary D. Bergman, for appellee.

Id. at 603 (1) (A).

The question here is when the victim acquired actual knowledge of the specific acts constituting the crime, not who committed a known crime as in Jenkins. Our holding that the tolling period ended when the UNUM investigator obtained first-hand knowledge of the acts forming the crimes is analogous to the tolling period ending in Jenkins when the State received the DNA results first identifying the defendant in that case as the perpetrator.

2. Royal contends that Count 19 is fatally defective because “it is not sufficient to enable [him] to prepare for trial and respond to the charges against him.” The State concedes the issue, and the trial court granted the State’s motion to enter a nolle prosequi of Count 19 before the trial court received this court’s order granting Royal’s interlocutory application and before Royal filed his notice of appeal. Because the nolle prosequi was entered before Royal filed his notice of appeal, this issue is moot.

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.

       The counts at issue allege that Royal committed insurance fraud by making specific false statements in claim forms submitted between February 9, 2004 and June 30, 2006. They also allege that the crimes were “unknown to the State until and after July 5, 2006.”

       Our opinion in State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010), is distinguishable because the issue presented in Bair did not turn on when the victim acquired actual knowledge of the crime. The cryptic language in Bair relied upon by Royal in this appeal is therefore nonbinding dicta.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A11A1568.
    WINGATE LAND, LLC v. VALUEFIRST, INC. et al.
    (722 SE2d 868)
   Andrews, Judge.

Wingate Land, LLC, the owner of two residential properties, entered into contracts to sell the properties; each buyer sought to qualify with a lender for a home loan; and the lender hired an appraisal company, ValueFirst, Inc., owned by James D. Smith, a certified real estate appraiser, to do appraisals to determine the fair market value of each property as security for the loans. After the appraisals found that the fair market value of each property was less than the contract price, Wingate and the purchasers closed the sales for a reduced price that qualified the purchasers for secured loans. Wingate then sued ValueFirst and Smith, individually, for the difference between the original contract price and the reduced sales price on each property claiming that Wingate was forced to sell for the reduced price because ValueFirst and Smith negligently appraised the properties below fair market value. In a separate count, Wingate alleged that ValueFirst and Smith engaged in wilful misconduct justifying the imposition of punitive damages by refusing to alter the appraisals after being told by Wingate that they were negligently below fair market value. Wingate appeals from the trial court’s grant of summary judgment in favor of ValueFirst and Smith. For the following reasons, we affirm.

1. ValueFirst and Smith were hired by the lender to do the appraisals for the purpose of allowing the lender to determine the fair market value of each property to be used as security for the loans. Although Wingate was not in privity with ValueFirst or Smith, it claims that, in the absence of privity, ValueFirst and Smith are liable on the negligence claim under the rule enunciated in Restatement of Torts 2d, § 552 for negligent misrepresentation resulting in economic loss. As adopted in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983), this rule provides that

one who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach. If such cannot be shown there will be no liability in the absence of privity, wilfulness or physical harm or property damage. The additional duty that this rule imposes may be, of course, limited by appropriate disclaimers which would alert those not in privity with the supplier of information that they may rely upon it only at their peril.

Id. at 681-682. The rule established in Robert & Co. does not expand professional liability for negligence to an unlimited class of persons whose presence is merely “foreseeable.” Badische Corp. v. Caylor, 257 Ga. 131, 133 (356 SE2d 198) (1987). “Rather, professional liability for negligence . . . extends to those persons, or the limited class of persons who the professional is actually aware will rely upon the information he prepared.” Id. As explained in Robert & Co.,

[c]ourts have been reluctant to extend liability in negligent misrepresentation cases where no privity appears and where the loss was merely economic and involving neither physical harm nor injury to property. An exception has been carved out in those cases where a known third party’s reliance was the desired result of the representation.

Robert & Co., 250 Ga. at 681.

Wingate alleged that, because ValueFirst and Smith negligently appraised the property below fair market value, it suffered economic loss, not physical harm or property damage. As to the negligence claim, the issue presented on summary judgment was whether the claim was viable under the rule established in Robert & Co., supra. To prevail at summary judgment under OCGA § 9-11-56, ValueFirst and Smith as the moving parties must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to Wingate as the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Construed in favor of Wingate, the record is sufficient to support a reasonable inference that, when ValueFirst and Smith did the residential appraisals for the lender, they knew that the fair market value information in the appraisals would be used by the lender to determine the amount of security that each property could provide for home loans sought by the buyers. It is reasonable to infer that as to each appraised property ValueFirst and Smith were aware of the existence of a seller and a buyer who could be affected by the information provided in the appraisals. That is not evidence, however, that ValueFirst or Smith did the appraisals for the purpose of inducing the seller or the buyer to justifiably rely and act upon the appraisals. To the contrary, the evidence shows that, before the appraisals were done for the lender, Wingate and the buyers agreed on a sale price for each property and entered into sales contracts for the agreed prices. The lender used the appraised fair market value to establish the loan amount that each property could secure. When the appraised value of each property was insufficient to provide security for loans based on the contracted prices, Wingate and the buyers eventually agreed to reduced prices that qualified the buyers for secured loans. When Wingate agreed on the original contract prices, it obviously could not rely on appraisals which had not yet been done. When Wingate agreed to sell the properties to the buyers for reduced sales prices after the appraisals, it did not justifiably rely on allegedly false fair market value information negligently included in the appraisals. Rather, Wingate asserts that, prior to reducing the prices, it knew the information was false and told ValueFirst and Smith that the information was false. On these facts, we find that, even if the appraisals negligently included false fair market value information, there is no evidence that ValueFirst or Smith appraised the properties for the purpose of inducing Wingate to rely and act on the information, nor any evidence that Wingate did rely and act on the information. White v. BDO Seidman, LLP, 249 Ga. App. 668, 670-672 (549 SE2d 490) (2001). Accordingly, Wingate had no viable claim under the negligent misrepresentation rule established in Robert & Co., supra, and the trial court correctly granted summary judgment in favor of ValueFirst and Smith on the negligence claim.

Decided February 8, 2012.

Varner & Adams, G. E. Adams, for appellant.

2. Wingate contends that the trial court erred in granting summary judgment to the extent it asserted a claim that ValueFirst and Smith engaged in wilful misconduct not controlled by the negligent misrepresentation rule in Robert & Co., supra. “When a material fact is wilfully misrepresented to induce another to act and upon which the other acts, a cause of action is created in the injured party, and privity is not necessary to give rise to such a cause of action.” Butler v. Turner, 274 Ga. 566, 569 (555 SE2d 427) (2001); OCGA § 51-6-2. According to Wingate, ValueFirst and Smith made wilful misrepresentations by merely choosing not to change their alleged negligent misrepresentations as to fair market value after being informed by Wingate of the alleged negligence. This does not support a claim that ValueFirst and Smith made wilful misrepresentations outside the scope of the Robert & Co. rule; there was no evidence of any wilful misrepresentations; and the trial court did not err in granting summary judgment on this claim and punitive damages sought thereunder.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Lewis, Brisbois, Bisgaard & Smith, Edward T. McAfee, Parks K. Stone, for appellees.


author: Adams, Judge.

text:
    A11A1667.
    BELL v. THE STATE.
    (722 SE2d 871)
   Adams, Judge.

Deldrick Bell contends the evidence produced at trial was insufficient to support his conviction of armed robbery. We disagree and affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. Brown v. State, 265 Ga. App. 613 (594 SE2d 770) (2004). To sustain a conviction, the evidence must be sufficient to enable a rational trier of fact to find the appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence produced at trial shows Bell was employed by a national auto parts store, and he worked at the Lilburn location in Gwinnett County. Bell’s relative by marriage, Christopher Pritchett, who was also a college friend, and who lives in Birmingham, Alabama, testified that on the evening of January 25, 2008, Bell called to say he was the closing manager of the store and to ask Pritchett to bring some people over to Lilburn to rob the store. Pritchett agreed, and he arranged for Nigel Summers and Alford Dawkins to go on the expedition; the three young men left that night. During the trip, Bell gave Pritchett directions over the phone and explained that the robbers should get the cash register and the drop box. When they arrived, Pritchett called Bell, told him they were outside, and hung up. Shortly thereafter, Bell called back and told the robbers to “go on and go in.” Summers and Dawkins went in the store dressed in black, wearing skull caps, and carrying guns.

Joseph Chislom, another store employee, testified that he, along with Bell, was working at the store during the early morning hours of January 26, 2008. While he was working in the mid-section of the store, he heard Bell call his name. He turned and saw the two robbers dressed in black, wearing masks, hats, and gloves, with one robber holding a shotgun and the other a pistol; Chislom “hit the deck” when he saw a weapon. The robber with the shotgun told him to get up and that “ ‘we’ need you to open up the registers.” He kept repeating, “I’m not going to hurt you.” Chislom opened the registers, the armed men took the money, and then the group all went to the front office where the safe was located. There, Chislom and Bell lay down on the floor, after which the armed robbers eventually left. Chislom did not see how the robbers got the safe open. Bell then called the police on his cell phone.

Meanwhile, the two armed men jumped back in the car with Pritchett and drove back to Alabama. Along the way, Bell called Pritchett at 3:09 a.m. and told him to deposit the money in his account on Monday. In Alabama, Pritchett received a text message from Bell saying that the robbers should have taken about $3,000, and to make sure that he got his share. Pritchett deposited that share, which he recalled to be between $600 and $800, into Bell’s checking account. A deposit slip with Pritchett’s handwriting was admitted into evidence, and it shows that on January 28, 2008, Pritchett deposited $710.

Telephone records introduced at trial showed that multiple calls occurred between Bell’s and Pritchett’s cell phones proximate in time to the armed robbery and that Bell used the same cell phone to call 911. The telephone records also show that Pritchett’s cell phone was in close proximity to the store that was robbed. Bank records showed that $710 in cash was deposited into Bell’s bank account from a bank in Alabama two days after the robbery. And the store surveillance tape showed Bell making telephone calls that correspond in time to the calls between Pritchett and him as reflected in the telephone records as well as in Pritchett’s testimony. The video shows Bell pacing back and forth in front of the store, looking out the window, walking outside, talking on a cell phone frequently, walking down the aisles, and turning around and looking back toward the front prior to the robbery. The telephone records show calls between the two cell phones later that morning, several hours after the robbery and the call to 911 using the same cell phone.

On appeal, Bell contends the testimony of his co-conspirator Pritchett was not corroborated as required. See OCGA § 24-4-8. The corroborating evidence itself must connect the defendant with the crime or lead to an inference that he is guilty:

To sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty. The necessary corroborating evidence may be circumstantial and it may be slight.

(Citations and punctuation omitted.) Matthews v. State, 284 Ga. 819-820 (1) (672 SE2d 633) (2009). However, the corroborating evidence need not be sufficient standing alone to warrant a conviction of the crime charged. Johnson v. State, 288 Ga. 803, 805 (2) (708 SE2d 331) (2011). The sufficiency of the corroborating evidence is a question for the trier of fact. Matthews, 284 Ga. at 820 (1).

Decided February 8, 2012.

Wystan B. Getz, for appellant.

Daniel J. Porter, District Attorney, Robby A. King, Assistant District Attorney, for appellee.

Here, at a minimum, Pritchett’s testimony was corroborated by the telephone records, the security video tape, and the fact that money was deposited into Bell’s account only two days after the crime. This evidence was sufficient to corroborate Pritchett’s testimony. See, e.g., Jackson v. State, 289 Ga. 798, 801 (716 SE2d 188) (2011) (Corroboration was shown when, among other things, a stolen wallet was discovered in the defendant’s home and “cell phone tower records established that Appellant and [his accomplice] were exchanging phone calls during the times when the criminal incidents occurred and within the vicinity of both residences and the jewelry store involved in the incidents.”).

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.


author: BOGGS, Judge.

text:
    A11A1757.
    BITUMINOUS INSURANCE COMPANY v. COKER.
    (722 SE2d 879)
   BOGGS, Judge.

We granted Bituminous Insurance Company’s (Bituminous) application for interlocutory review of the trial court’s denial of its motion for summary judgment on Carolyn Ann Coker’s claim for uninsured motorist benefits. At issue is whether Coker provided eyewitness testimony to corroborate her description of how an unknown motorist caused an accident in which her husband, Terry Broom, was killed. Because no eyewitness testimony corroborated Coker’s version of events, Bituminous was entitled to judgment as a matter of law. We therefore reverse.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the non-movant. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the 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.

(Citations omitted; emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Coker, the surviving spouse of Terry Broom and administratrix of his estate, filed a complaint, and later an amended complaint, against an unknown driver “John Doe” alleging the following:

On April 7, 2009, Mr. Broom was driving a 1994 Freightliner Truck . . . traveling north on U.S. Highway 41 in Catoosa County. . . . Mr. Broom was hauling a load of lumber on the Freightliner. ... As Mr. Broom approached the intersection of U.S. Highway 41 and Clark Road in Catoosa County, Defendant stopped suddenly in the path of the Freightliner at the intersection of U.S. Highway 41 and Clark Road in an attempt to make a left turn from U.S. Highway 41 onto Clark Road. . . . Because Defendant stopped suddenly in front of the Freightliner, Mr. Broom activated the Freight-liner’s horn. . . . After sounding the Freightliner’s horn, Mr. Broom applied the Freightliner’s brakes to avoid a collision with Defendant’s vehicle. . . . Rather than make a left turn onto Clark Road from U.S. Highway 41, Defendant continued northward on U.S. Highway 41. . . . After Mr. Broom activated the horn and applied the brakes of the Freight-liner, the load of lumber shifted and broke the straps holding the Freightliner’s load in place. . . . When the straps holding the Freightliner’s load broke, the lumber moved forward and crushed the driving cab of the Freightliner into Mr. Broom. . . . When the lumber moved forward and encroached on the driving cab of the Freightliner, Mr. Broom was crushed and killed.

Coker asserted that the unknown motorist was negligent, and therefore sought to recover under the uninsured motorist provision of an insurance policy issued by Bituminous covering the Freight-liner that Broom operated for his employer. Bituminous moved for summary judgment on the ground that there was an absence of evidence to show that Coker’s description of the accident was corroborated by eyewitness testimony as is required by OCGA § 33-7-11 (b) (2). The trial court denied Bituminous’s motion for summary judgment, but granted a certificate of immediate review.

As set forth by the Supreme Court of Georgia,

[t]he purpose of uninsured motorist or UM coverage is to place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance. Stated otherwise, the purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.

(Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Adams, 288 Ga. 315, 316 (702 SE2d 898) (2010). OCGA § 33-7-11 (b) (2) provides in part:

A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown . . . and, in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact shall have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.

(Emphasis supplied.) “The corroboration required by the eyewitness account is corroboration of that portion of the claimant’s description asserting the existence of a phantom vehicle which caused the incident; that is, existence and causation.” (Citation and punctuation omitted; emphasis supplied.) Hohman v. State Farm &c. Ins. Co., 283 Ga. App. 430, 431 (641 SE2d 650) (2007). And, as this Court has previously noted, “[t]he statute requires that the claimant’s description of how the accident occurred be corroborated in its material allegation, i.e., implication of the unidentified vehicle.” (Citations and punctuation omitted; emphasis in original.) Id.

As there is no allegation that Broom made contact with the unknown motorist’s vehicle, the dispositive issue is whether any eyewitness corroboration was shown. Four eyewitnesses were deposed in connection with the case. The first witness, Harriet Clark, stated that she was “coming down Clark Road towards 41” and stopped at a stop sign when she heard a loud noise. She looked to her right and observed Broom’s truck and that the straps securing the lumber he was hauling were “broke and were flopping on the truck.” She stated that Broom then “started slamming on his brakes” and lumber was flying from the tractor-trailer. Clark stated that it was a bit cold but that the road was dry. She explained that she saw no other vehicles in the area, stating specifically that “[t]here was nothing in front of [Broom].”

A second witness, Scottie Kilgore, testified that he was traveling south on U. S. Highway 41 behind another vehicle, about 150 yards from the intersection of Clark Road, when he looked away for a “split second.” When Kilgore looked up, he saw another vehicle coming from the opposite direction meet and pass him, and then looked ahead of him and saw lumber and smoke coming from Broom’s truck which was traveling in the same direction as the vehicle that passed him. He explained that when the car passed him he was 100 to 150 yards away from Broom’s tractor-trailer. Kilgore agreed that “[n]othing that [he] saw that car do that would have caused an emergency braking maneuver by the tractor-trailer driver,” and that there were no vehicles at the intersection of Clark Road attempting to pull out onto Clark Road that would have impeded the tractor-trailer.

The third witness, Carol Worthington, deposed that she was on her front porch when the accident occurred and had a clear view of the highway. She explained that she saw Broom’s tractor-trailer go by after “it blowed [sic] the horn, and then it went irk, irk, irk . . . and slammed his brake on. Then I hear pow, like it hit a car.” She explained that the sounds she heard were the brakes and the breaking of the straps securing the load. Worthington stated further that she “saw him locking it down and the cab leaning forward because he was screeching so hard ... as he was skittling down” U. S. Highway 41 toward Clark Road. Worthington then got in her vehicle and headed “down to Clark Road ... because I knew somebody probably tried to pull out in front of somebody here or something, because it happened all the time. But I didn’t see a wrecked car here. All I seen [sic] was the white truck out in the road here, but it wasn’t damaged.” She described the truck as a white pickup truck like a “small Ram or something . . . [o]r Dakota.” She explained that as she looked to her right, north on U. S. Highway 41, she saw the back of the white truck and a load of lumber, but did not know whether the pickup truck was there “before or after the tractor-trailer.” She did not recall seeing any other vehicle in front of, or in contact with, Broom’s tractor-trailer that may have caused it to “go into a full braking, hard braking maneuver.”

A fourth witness, Brian Smith, deposed that he was heading south on U. S. Highway 41 when he observed Broom’s tractor-trailer skid to a stop. He explained that there were no vehicles in front of him but recalled a small white car stopped on U. S. Highway 41 with its turn signal on and in the proper position to make a left turn onto Clark Road. Smith first stated that the car turned left before he got to the intersection, but then stated that the vehicle “may have still been sitting there waiting to turn, and the lumber didn’t — you know, maybe he got stopped before — you know, far enough where the car didn’t get hit by the lumber, but I don’t — I remember the lumber just hitting the street and didn’t hit any vehicles or anything.” Smith responded negatively when asked if there was anything “that brought a concern of emergency to [him] as [he was] driving southward toward Clark [Road].” When asked if he knew the reason Broom “had to make a full braking maneuver,” Smith speculated as to “two possible explanations,” but then again asserted that the white car was at a complete stop at the intersection and was in a “proper position on the roadway,” and that he did not “see anything that appeared to be an incorrect driving maneuver that the motorist in the white car did before the truck started braking.” He stated that he did not hear the tractor-trailer’s horn.

Although three of the four witnesses established the presence of an unknown vehicle, each described the vehicle in a different location, and none corroborated Coker’s description “of how the occurrence occurred,” i.e. the unknown motorist “stopped suddenly in the path of the Freightliner at the intersection of U.S. Highway 41 and Clark Road in an attempt to make a left turn from U.S. Highway 41 onto Clark Road.” “[T]he mere fact that an accident happened affords no basis for recovery unless it is shown that the accident was caused by specific acts of negligence; the insured must be able to prove that the unknown driver was negligent.” (Citation, punctuation and footnote omitted.) Hohman, supra, 283 Ga. App. at 433. In the absence of evidence corroborating Coker’s material allegation that the driver of the unknown vehicle negligently caused the accident, Bituminous was entitled to summary judgment. See Hambrick v. State Farm Fire &c. Co., 260 Ga. App. 266, 266-267 (581 SE2d 299) (2003) (no evidence to support claimant’s complaint that driver of unknown vehicle was negligent in striking a construction barrel which struck plaintiffs vehicle); Phillips v. South West Mechanical Contractors, 254 Ga. App. 144, 147-148 (2) (b) (561 SE2d 471) (2002) (decedent struck and killed by unknown motorist after being thrown from AT\i but no eyewitnesses to collision corroborated claimant’s assertion that unknown motorist was negligent); compare State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538, 539-540 (492 SE2d 678) (1997) (trial court properly denied defendant’s motion for summary judgment where eyewitness corroborated plaintiffs claim that unknown driver went into his lane causing him to strike utility pole).

Coker argues that Phillips, supra, stands for the proposition that the court can consider noneyewitness evidence if such evidence is offered. But Phillips does not stand for this proposition, holding only that the plaintiffs failed to come forward with any evidence to raise a question of fact as to the unknown motorist’s negligence. Id. at 147. Eyewitness corroboration is a statutory requirement created by the legislature. And “we are required to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.” (Citations and punctuation omitted.) Trawick Constr. Co. v. Ga. Dept, of Revenue, 286 Ga. 597, 598 (690 SE2d 601) (2010). “[I]f the General Assembly had intended something other than the literal meaning of the words used in the statute, it could have so specified.” (Citation and punctuation omitted.) Hoffman v. Doe, 191 Ga. App. 319, 320 (381 SE2d 546) (1989) (construing OCGA § 33-7-11 (b) (2)).

Coker also cites Painter v. Continental Ins. Co., 233 Ga. App. 436 (504 SE2d 285) (1998), to contend that eyewitness testimony and circumstantial evidence (the sound of the tractor-trailer’s horn before the sound of the brakes) establish that negligence by the “phantom automobile’s” driver caused the accident. But in Painter, an eyewitness testified positively that an unknown vehicle came off an exit ramp and caused the plaintiffs vehicle to swerve and lose control. This corroborated the plaintiffs claim that the unknown driver was negligent despite possible inconsistency as to whether the unknown vehicle actually struck the plaintiffs vehicle. Id. at 438-439 (2). That is not the case here. No witnesses corroborated Coker’s claim that the unknown motorist negligently stopped in the path of Broom’s tractor-trailer.

Decided February 8, 2012

Leitner, Williams, Dooley & Napolitan, David W. Noblit, Mary C. DeCamp, for appellant.

Gearhiser, Peters, Cavett, Elliott & Cannon, Gary L. Henry, for appellee.

Judgment reversed.

Mikell, P J., and Dillard, J., concur.

       Coker also asserted a claim for negligence per se for the unknown motorist’s violation of OCGA § 40-6-241 (driver to exercise due care).

       Corporal Gleaton with the Georgia State Patrol was also deposed but was not an eyewitness to the accident. Gleaton stated that he found no evidence of any other car coming into contact with Broom’s tractor-trailer, and explained that the straps holding the load had an intact previous tear and a fresh tear.

       Kilgore stated that he was driving a white Dodge Ram pickup truck and that he pulled over to the side of the road after witnessing the accident “so nobody else could come through.”

       Coker’s reliance on Langford v. Royal Indem. Co., 208 Ga. App. 128 (3) (430 SE2d 98) (1993) (physical precedent only as to Division 3) and State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992) (physical precedent only) is also misplaced as both of those cases are physical precedent only and therefore not binding on this Court. See Court of Appeals Rule 33 (a).


author: MIKELL, Presiding Judge.

text:
    A11A1918.
    HOLDEN v. THE STATE.
    (722 SE2d 873)
   MIKELL, Presiding Judge.

After a jury trial, Ellis Lamar Holden was convicted of kidnapping with bodily injury, rape, aggravated sodomy, armed robbery, two counts of burglary, and five counts of possession of a weapon during the commission of a crime. He appeals from the denial of his motion for new trial, contending that the trial court erred in admitting similar transaction evidence and by failing to properly charge the jury on similar transaction evidence. He also argues that the evidence was insufficient to support his kidnapping with bodily injury conviction. Finding no error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.”

So viewed, the record shows that Maria Mora was at her home when Holden entered the house, grabbed a knife from the kitchen, put it to Mora’s neck, and pushed her into the bedroom. Inside the bedroom, Holden raped and sodomized Mora and snatched a gold necklace inscribed with “M-E-X” from around her neck. Holden then took money from Mora’s purse, tied her up with a sheet, and fled on a bicycle. Mora then ran to a nearby school where an ambulance was called to take her to the hospital to complete a rape kit. Mora testified that her assailant had a tattoo on his arm.

The following day, Holden was located by Chief Randy Simmons, who noticed a gold chain and a tattoo on his arm. Chief Simmons notified the Adel police department that Holden was headed toward Adel on a bicycle. Holden was arrested in Adel while wearing a necklace inscribed with “M-E-X.” Holden was then taken to a local hospital, where he gave a blood sample. Analysis by the GBI lab indicated that DNA from the blood sample matched that in the semen taken from Mora’s rape kit.

1. Holden argues that there was insufficient evidence of aspor-tation to sustain his kidnapping with bodily injury conviction under Hammond v. State. Holden maintains that the movement of Mora from the kitchen to the bedroom was an inherent part of the rape and armed robbery and posed no additional harm to the victim, other than that posed by the other crimes. We disagree.

OCGA § 16-5-40 (a) provides that “[a] person commits the offense of kidnapping when such person abducts or steals away [i.e., asports] another person without lawful authority or warrant and holds such other person against his or her will.” Subsection (d) of the statute enhances a defendant’s sentence if the person kidnapped received bodily injury.

At the time of Holden’s crime in 2002, the law permitted the necessary element of asportation to be proven by any evidence that the victim was moved, however slight. However, in Garza, the Supreme Court overruled prior case law and set out four new factors that should be considered in determining whether the asportation element of kidnapping was met:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

According to the “pipeline” rule, because Garza was decided after Holden was convicted and while his case was pending appeal, Garza applies to this case. However, all four Garza factors need not be present for the movement to constitute asportation.

Movement occurred here when Holden pressed a knife to Mora’s throat and forced her from the kitchen into the bedroom where he raped and sodomized her and committed armed robbery. Although this movement did not last long, it was not incidental to the other criminal offenses. This movement was not an inherent part of the crimes as her movement to the bedroom was not necessary to effect the completion of the rape, aggravated sodomy, or armed robbery. Also, by moving her to the bedroom, Mora was placed in greater danger because Holden’s control over her was enhanced. Before Holden pulled Mora into the bedroom, Mora was in the kitchen where she could have made her escape or called for help.

Thus, contrary to Holden’s assertion, the evidence was sufficient to establish the asportation element of the kidnapping with bodily injury conviction.

2. Holden argues that the trial court erred when it admitted testimony concerning three similar transactions by him without making the requisite Williams findings. We disagree.

“We review the trial court’s determination that the similar transaction evidence was admissible under an abuse of discretion standard.”

Before the state can introduce similar transaction evidence, Uniform Superior Court Rule 31.3 (B) requires the state to make three affirmative showings:

(1) the similar transaction evidence is offered for some purpose other than to show a probability that the defendant committed the crime on trial because the defendant is a person of criminal character; (2) the accused committed the independent offenses; and (3) a sufficient connection or similarity between the prior offense and the offense charged such that proof of the former tends to prove the latter.

“After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to the independent offense or act.”

Although the court did conduct a Rule 31.3 (B) hearing on the issue of whether the state could introduce evidence of three prior burglaries committed by Holden, it did not explicitly make the Williams findings on the record but instead merely stated that “I think I’m bound by the law and the law is pretty clear . . . that I have to allow it in.”

However, the trial court’s failure to make such findings on the record is harmless error. “[H]arm as well as error must be shown when similar transaction evidence is improperly admitted.” Where there is strong evidence of the defendant’s guilt, such that it is highly unlikely that the admission of similar transaction evidence contributed to the verdict, the admission of improper evidence is harmless error. As detailed above, DNA from the blood sample collected from Holden matched that in the semen collected from Mora’s rape kit, and the stolen necklace was found on Holden’s person at the time of his arrest. In light of this strong physical evidence against him, we find that there is no reasonable probability that the results of the trial would have differed if the evidence had been excluded.

3. In related claims of error, Holden contends that the trial court erred in allowing the similar transaction evidence because it was not sufficiently similar to the indicted crimes, in allowing the similar transaction evidence to be introduced prior to the introduction of evidence regarding the offenses involved in the present case, and in improperly charging the jury regarding similar transactions. Preter-mitting whether any of these enumerations have merit, however, we find that any error by the trial court would constitute harmless error because, as stated above, it is highly unlikely that the admission of the similar transaction evidence contributed to the jury’s finding of guilt.

Decided February 8, 2012.

Melinda I. Ryals, for appellant.

Catherine H. Helms, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004).

       289 Ga. 142 (710 SE2d 124) (2011), citing Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008).

       Following the Supreme Court’s decision in Garza, the Georgia General Assembly amended the kidnapping statute “to provide that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense,” and then further defined what actions would not be incidental to another offense. Wright v. State, 300 Ga. App. 32, 34 (1), n. 1 (684 SE2d 102) (2009) (citation and punctuation omitted). The amended statute applies only to crimes committed on or after the revised statute’s effective date, July 1, 2009. See OCGA § 1-3-4; Hammond, supra at 143-144 (1).

       See generally Lyons v. State, 282 Ga. 588, 591 (1) (652 SE2d 525) (2007) (“The requirement of asportation to prove kidnapping is satisfied if there is movement of the victim, however slight that movement is.”) (citation omitted), overruled by Garza, supra.

       (Citation and footnote omitted.) Garza, supra at 702 (1).

        Goolsby v. State, 311 Ga. App. 650 (1) (a) (718 SE2d 9) (2011).

        Hammond, supra at 144-145 (2).

        Patterson v. State, 312 Ga. App. 793, 794 (1) (720 SE2d 278) (2011) (forcing victims from bedrooms at gunpoint and taking them to kitchen was not inherent or integral part of armed robbery, burglary, or aggravated assault).

       See Hammond, supra at 145 (2).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       (Footnote omitted.) Williamson v. State, 300 Ga. App. 538, 542 (2) (b) (685 SE2d 784) (2009).

       (Citations omitted.) Hall v. State, 230 Ga. App. 741, 742 (497 SE2d 603) (1998).

       (Footnote omitted.) Williams, supra.

       See Hill v. State, 263 Ga. 37, 43 (10) (427 SE2d 770) (1993) (where jury knew from the circumstance of a jailhouse murder that defendant was an inmate, and where the evidence of his guilt was overwhelming, the introduction of similar transaction evidence without proper Williams findings was harmless).

       (Citation and punctuation omitted.) Hyde v. State, 291 Ga. App. 662, 664 (2) (662 SE2d 764) (2008).

       See Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001) (to be admissible as a similar transaction, prior offense must both be offered for a proper purpose and there must be a sufficient connection between that offense and the crime charged so that proof of the former tends to prove the latter).

        Hyde, supra.


author: DOYLE, Presiding Judge.

text:
    A11A2390.
    KERR v. OB/GYN ASSOCIATES OF SAVANNAH et al.
    (723 SE2d 302)
   DOYLE, Presiding Judge.

Laurel B. Kerr filed a pro se complaint against OB/GYN Associates of Savannah (“OAS”) and individual defendants, Dr. Jules Toraya and a medical assistant (collectively “the Defendants”), alleging that she suffered injuries when a medical assistant employed at OAS negligently allowed her to fall off an examination table after the assistant injected Kerr with a vaccination. The trial court granted the Defendants’ motion to dismiss on the ground that Kerr failed to file an expert affidavit with her original complaint in accordance with OCGA § 9-11-9.1 (a). Kerr appeals pro se, arguing that the trial court erred by granting the motion to dismiss because the claims alleged in her complaint sounded in ordinary rather than medical negligence, obviating the need for an expert affidavit. For the reasons that follow, we affirm in part and reverse in part.

On appeal, we conduct a de novo review of a trial court’s ruling on a motion to dismiss. Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.

Viewed in this light, Kerr’s complaint alleges that on January 19, 2009, the medical assistant working for OAS administered a vaccination to Kerr via an injection. Kerr began feeling faint and fell off the examination table. The assistant attempted to prevent Kerr from falling to the floor, but Kerr was injured as a result of the fall. Kerr alleged that the assistant did not instruct Kerr to lie down on the examination table or take other steps to prevent her fall.

1. Kerr argues that the trial court erred by dismissing her complaint for failure to file an expert affidavit because the question of whether the medical assistant was negligent in allowing her to fall from the examination table after injecting Kerr with a vaccine is a question of ordinary negligence. Kerr explains that contrary to the findings of the trial court, her complaint did not allege any negligence in the administration of the vaccination itself, which she concedes would be a question of medical negligence. We agree.

Pursuant to OCGA § 9-11-9.1 (a), a plaintiff alleging medical negligence must file contemporaneously with the complaint an expert affidavit setting forth at least one negligent act or omission supporting each claim. The determination of whether a claim is one for medical negligence and therefore whether it requires expert support at filing is determined on the basis of whether the act or omission was made regarding a medical question. “Medical questions have been defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” “[I]n cases involving a person’s fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. This distinction is a question of law for the court.”

In this case, the Defendants’ “alleged liability does not turn on a medical question, and a jury would be capable of determining without the help of expert evidence whether [OAS’s] medical assistant exercised due care” in attempting to prevent Kerr’s fall off the examination table. Thus, at least in part, the trial court erred by dismissing Kerr’s complaint to the extent that she stated a claim for this alleged negligent act. At this point in the proceedings, this Court is unable to say whether the evidence Kerr presents will support her stated claim that the medical assistant negligently executed a merely physical act requiring no exercise of expert medical judgment or whether Kerr will only succeed in marshaling evidence that the medical assistant negligently exercised her professional judgment in treating Kerr’s physical reaction to the injection. Nevertheless, Kerr has succeeded in stating a claim for the former, and to the extent that she did, the trial court erred by dismissing her complaint.

Decided February 8, 2012.

Laurel B. Kerr, pro se.

Oliver, Maner & Gray, William P. Franklin, Jr., for appellees.

2. Based on the foregoing, the trial court similarly erred by dismissing Kerr’s claims of vicarious liability against OAS and Dr. Toraya for the alleged acts of simple negligence performed by the medical assistant.

Judgment affirmed in part and reversed in part.

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

       The complaint identified the medical assistant as “R. T.,” the initials listed in Kerr’s medical records.

       (Citation and punctuation omitted.) Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145 (682 SE2d 165) (2009), aff'd, Opensided MRI of Atlanta v. Chandler, 287 Ga. 406 (696 SE2d 640) (2010).

       See Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 848-849 (635 SE2d 184) (2006).

       (Punctuation omitted.) Id. at 848-849.

       (Punctuation omitted.) Id. at 849.

       (Punctuation omitted.) Brown v. Durden, 195 Ga. App. 340, 342 (393 SE2d 450) (1990) (physical precedent only). See also Brown, 280 Ga. App. at 849; Jones v. Bates, 261 Ga. 240, 242-243 (2) (403 SE2d 804) (1991).

        See Jones, 261 Ga. at 242-243 (2); Health Mgmt. Assocs. v. Bazemore, 286 Ga. App. 285, 287-288 (648 SE2d 749) (2007); Chandler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110-111 (2) (354 SE2d 872) (1987). Cf. Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299, 300 (454 SE2d 190) (1995) (moving a patient from wheelchair to bed did not involve exercise of medical judgment and therefore statute of limitation for stated ordinary negligence claim could be tolled by plaintiffs mental incompetency).

       See Health Mgmt. Assocs., 286 Ga. App. at 288.


author: MlKELL, Presiding Judge.

text:
    A11A2401.
    BJL ENTERPRISES, LLC v. LEVEL ONE CONTACT, INC. et al.
    (722 SE2d 877)
   MlKELL, Presiding Judge.

BJL Enterprises, LLC (BJL) appeals from the trial court’s grant of partial summary judgment to Level One Contact, Inc. (Level One), Paul Winters, Janet Winters, and Jeffrey Winters on all claims made against them except for the claim for payment of past due rent on the commercial lease between Level One and the predecessor in interest of BJL, which remains pending below.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A defendant moving for summary judgment may put forth evidence to show that there is no issue of fact as to one or more elements of the plaintiff’s causes of action or demonstrate that the record lacks sufficient evidence to support one or more of the plaintiff’s causes of action. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant.

1. This matter was previously before this court on appeal by Level One of the judgment entered on the jury’s verdict in favor of BJL for breach of the commercial lease and fraudulent conveyance of corporate assets. The underlying facts of the dispute are fully set out in that opinion. As found therein:

In January 2008, BJL Enterprises filed suit against Level One and [Samuel] Winters for the unpaid rent due on the lease, fraudulent conveyances, stubborn litigiousness, bad faith, and punitive damages. Level One and Winters counterclaimed for failure to return their security deposit pursuant to the lease, conversion, trespass to property, attorney fees, and punitive damages. A jury found in favor of BJL Enterprises and against Level One in the amount of $103,954 in past due rent, $67,734 in attorney fees and expenses of litigation pursuant to the lease, and $1 for attorney fees for stubborn litigiousness and bad faith. The jury found in favor of BJL Enterprises and against Winters for fraudulent conveyance in the amount of $103,954, and $1 for attorney fees for stubborn litigiousness and bad faith.
Level One and Winters appeal, alleging (1) the trial court erred in denying their motions for directed verdict because BJL Enterprises lacked standing to pursue its claims and because the lease was terminated; (2) the trial court erred in failing to let them challenge the attorney fees evidence proffered by BJL Enterprises; (3) the trial court erred in failing to reduce the amount of attorney fees awarded against Level One as required by statute; and (4) the trial court erred in awarding pre-trial discovery sanctions to BJL Enterprises based on a finding that Level One and Winters withheld documents during discovery. We reverse the trial court’s judgment with respect to the attorney fees awarded pursuant to the lease because the amount is limited by statute. However, we affirm the trial court’s order and judgment on all other issues.

As found by the court below in this litigation:

Prior to the conclusion of BJL 1,[] [BJL] filed a virtually identical second lawsuit (the instant action or “BJL 2”) against Level One and Samuel Winters (“Samuel”). The primary distinction is that [BJL] added as defendants Janet Winters (“Janet”) [Samuel’s wife] and Jeffrey Winters (“Jeffrey”) [Samuel and Janet’s son]. In BJL 2, [BJL] has again brought claims for Breach of Contract (Count I), Fraudulent Conveyance (Count II), “Stubborn Litigiousness and Bad Faith,” (Count III), and Punitive Damages (Count IV), and Breach of Fiduciary Duty (Count V). Plaintiff [has] also brought a new claim seeking the imposition of a Constructive Trust against Janet and Samuel’s residence (Count VI) ....
Before the Court is Defendants’ Motion for Partial Summary Judgment. Defendants contend that summary judgment is proper because: (1) none of the individual Defendants can be liable on [BJL’s] breach of contract claim; (2) the doctrines of res judicata and collateral estop-pel bar relitigation of [BJL’s] fraudulent conveyance claim; (3) [BJL’s] breach of fiduciary duty claim fails as a matter of law; and (4) [BJL] is not entitled to equitable relief in the form of a constructive trust because it has an adequate remedy at law.

Because the trial court’s thorough and well-reasoned order fully explains the judgment entered and no reversible error of law appears, the trial court’s order is hereby adopted as the opinion of this court on all enumerations of error raised by BJL, except enumerations C and E.

Decided February 8, 2012.

John W. Mrosek, for appellant.

Gibson, Deal, Fletcher & Dunham, John W. Gibson, Michael R. Dunham, for appellees.

The argument made in enumeration C was not raised below. “[An] appellate court will not consider an issue raised for the first time on appeal, because the trial court has not had the opportunity to consider it.”

In enumeration E, BJL points out that the conclusion of the trial court’s order states in paragraph 2 that the trial court grants appellees’ motion for partial summary judgment on “Plaintiffs Fraudulent Conveyance (Count II), ‘Stubborn Litigiousness and Bad Faith’ (Count III), and Punitive Damages (Count IV) claims against Samuel J. Winters and Jeffrey Winters[.]” (Emphasis supplied.) Appellees concede that the conclusion should have reflected that Janet was the appropriate party, not Jeffrey. The substantive portion of the trial court’s order clearly reflects that Janet is the appropriate party. Appellees filed a Motion to Correct Clerical Error in the trial court on July 5, 2011. Although the trial court entered an order correcting this error on July 13, 2011 at 3:52 p.m., BJL’s notice of appeal was filed at 2:05 p.m. that day, divesting the trial court of jurisdiction in this matter.

Therefore, the judgment of the trial court is affirmed in all respects, save for our reversing it for correction of the scrivener’s error contained therein.

2. Under the circumstances and given the clear state of the law, BJL’s attorney could not reasonably have believed that this appeal would result in a reversal of the trial court’s decision. Appellees’ motion to assess a penalty for frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

Dillard and Boggs, JJ., concur.

       (Citations and punctuation omitted.) Koncul Enterprises v. Fleet Finance, 279 Ga. App. 39 (630 SE2d 567) (2006).

        Level One Contact v. BJL Enterprises, 305 Ga. App. 78 (699 SE2d 89) (2010) (Past due rent was awarded through the date of the trial in June 2009.).

       Id. at 79.

       Id.

       (Citation and punctuation omitted.) Thompson v. Princell, 304 Ga. App. 256, 259 (a) (696 SE2d 91) (2010).

       No motion for partial summary judgment was made by Jeffrey below.

        Aetna Cas. &c. Co. v. Bullington, 227 Ga. 485 (1) (181 SE2d 495) (1971); Mason v. Chateau Communities, 280 Ga. App. 106 (1) (633 SE2d 426) (2006).