author: Ray, Judge.

text:
    A13A1085.
    EELLS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (752 SE2d 70)
   Ray, Judge.

Christopher Eells appeals from the trial court’s order dismissing his complaint and granting summary judgment in favor of State Farm Mutual Automobile Insurance Company. Eells contends in several related enumerations that the trial court erred in finding that he did not give State Farm sufficient, required notice of the accident in a timely fashion; he also argues that the trial court erred in failing to allow a jury to determine whether he was a resident in his parents’ home for purposes of qualifying for insurance coverage. For the reasons that follow, we affirm in part, reverse in part, and remand this case to the trial court for further proceedings not inconsistent with this opinion.

Pursuant to OCGA § 9-11-56 (c), summary judgment is appropriate when no genuine issue of material fact exists and when the moving party is entitled to judgment as a matter of law.

On appeal from the grant or denial of a motion for 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 nonmovant. A defendant may prevail on summary judgment 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 plaintiff’s case.... 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, punctuation and emphasis omitted.) Hearn v. Dollar Rent A Car, 315 Ga. App. 164, 164 (726 SE2d 661) (2012).

Properly viewed, the evidence shows that while crossing Piedmont Road in Atlanta on foot on February 28, 2009, Eells was struck and injured by a passing vehicle in a hit-and-run accident. Eells was severely injured and required post-accident care, which his parents provided for him in their home. A few months after the accident, Eells’ mother told the family’s State Farm agent about the accident during a telephone call when she contacted the agent about an unrelated matter. She did not make any formal claim because the Eells family was unaware that their insurance policy might cover the accident, nor did the agent advise her to notify the company of the accident in writing or to fill out a claims form. Shortly before the statute of limitation would have run, Eells’ father was speaking socially to his son’s present counsel and became aware for the first time that there might be a viable insurance claim. Eells then gave formal notice to State Farm and filed a claim.

On February 17, 2011, Eells sued the uninsured motorist, John Doe, and perfected service on State Farm as the uninsured motorist carrier. Eells sought coverage from State Farm under four automobile insurance policies issued to Eells’ father. State Farm moved for summary judgment. The trial court granted that motion, finding in a three-sentence order that the oral notice to a claims representative did not qualify as the written notice required by the insurance policy and that the nearly two-year delay in notifying State Farm of the accident was without legal justification. Eells appeals this decision.

1. In several related enumerations, Eells contends that the trial court erred in determining that the oral notice of the accident that his mother gave to a State Farm representative was insufficient, that the written notice he gave to State Farm was untimely, and that he lacked legal justification for the delay.

(a) Eells first argues that the trial court erred in granting State Farm’s motion for summary judgment because the policy provisions requiring timely, written notice are not conditions precedent to coverage. State Farm counters that these provisions are conditions precedent, which Eells failed to satisfy such that coverage is barred.

In the recent case of Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. 12 (703 SE2d 436) (2010), we determined that the exact policy language at issue in the instant case established a condition precedent to coverage. Eells’ policies required that he report a hit- and-run accident to State Farm “within 30 days[,]” and, as in Lank-ford, Eells’ policies also

required that he provide written notice of the accident or loss to State Farm or one of its agents “as soon as reasonably possible.” Moreover, the policies provide that as a condition of insurance coverage, “[tjhere is no right of action against [State Farm] ... until all the terms of this policy have been met.”

(Emphasis supplied.) Id. at 14. It is undisputed that Eells did not meet these precise notice requirements and did not provide written notice to State Farm until almost two years after the accident.

It is well established that a notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification. Where an insured has not demonstrated justification for failure to give notice according to the terms of the policy,... then the insurer is not obligated to provide either a defense or coverage.

(Footnote omitted.) Id., citing Federated Mut. Ins. Co. v. Ownbey Enterprises, 278 Ga. App. 1, 3 (627 SE2d 917) (2006).

Although the instant case is factually similar to Gregory v. Allstate Ins. Co., 134 Ga. App. 461, 463 (214 SE2d 696) (1975), in which this Court stated that language in an insurance policy establishing a condition precedent to suit against the insurer did not create a condition precedent where the uninsured motorist was sued and the insurer merely intervened, that case is inapplicable here. State Farm participated in the case in its own name, contesting not just the liability of the alleged tortfeasor, which it may do without participating as a party in the case, but also its own contractual liability, which it may not do without assuming the status of a named party. Maxwell v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 545, 545-546 (1) (396 SE2d 291) (1990). Accord Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980).

(b) Eells contends, however, that coverage should not be barred because State Farm had actual notice of the accident through his mother’s conversation about it with the State Farm agent.

In State Farm’s brief in support of its motion for summary judgment, the carrier conceded that “State Farm may have had some knowledge of the accident because a few months after the accident [Eells’] mother told the State Farm insurance agent about the accident in passing.” However, this Court has repeatedly determined that even if the insurer receives oral or other notice that does not comply with the policy’s written notice requirement, that notice is insufficient. For example, in a similar instance, where the insured’s policy required written notice within 30 days of an accident as a condition precedent to coverage and the insured testified that he gave oral notice within the applicable time frame, this Court found the notice insufficient as a matter of law. Corbin v. Gulf Ins. Co., 125 Ga. App. 281, 284 (187 SE2d 312) (1972). Accord Gurley v. Ford Motor Credit Co., 163 Ga. App. 875, 876 (1) (296 SE2d 171) (1982); Moss, supra at 165. Compare Southern Mut. Ins. Co. v. Mason, 213 Ga. App. 584, 588 (3) (445 SE2d 569) (1994) (no indication whether or not notice requirement was a condition precedent to coverage).

(c) Eells next argues that the trial court erred in determining that there was no legal justification for the nearly two-year delay between the time of the accident and the time he provided written notice to State Farm, and that the trial court thus erred in granting summary judgment. He contends that he did not know he had coverage and that the delay was justified because the policy language was ambiguous as to whether an insured pedestrian, as opposed to an insured occupying a vehicle, would be covered.

Two portions of the policy are primarily at issue here. “Section III — Uninsured Motor Vehicle — Coverage U” provides that

We will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. . . . Uninsured Motor Vehicle — means: ... a “hit-and-run” land motor vehicle whose owner or driver remains unknown, if: (a) such vehicle strikes: (1) the insured or the vehicle the insured is occupying and causes bodily injury to the insured[.]

(Emphasis omitted and supplied.) The policy further provides that “Insured — means the person or persons covered by the uninsured motor vehicle coverage.” (Emphasis in original.) However, in a section entitled “Reporting A Claim — Insured’s Duties” under the heading “Other Duties Under Medical Payments, Uninsured Motor Vehicle, Death, Dismemberment and Loss of Sight and Loss of Earnings Coverages” (emphasis supplied), the policy states that “under the uninsured motor vehicle coverage” the person making the claim shall “(1) report a ‘hit-and-run’ accident to the police within 10 days and to us within 30 days. (2) let us see the insured car the person occupied in the accident and any damaged property.” (Emphasis omitted and supplied.)

While it is true that an insured “is chargeable with awareness of the insurance coverage it solicited, and with checking the policy to see that proper coverage had been obtained,” Atlanta Intl. Properties v. Ga. Underwriting Assn., 149 Ga. App. 701, 702 (2) (256 SE2d 472) (1979), it is well settled that an insurance policy must be read from the point of view of a layperson, rather than an insurance expert or attorney. State Farm Mut. Auto. Ins. Co. v. Staton, 286 Ga. 23, 25 (685 SE2d 263) (2009). The fact that Eells’ father is an attorney is irrelevant here.

Contract construction is a question of law for the court, unless, after applying the rules of contract interpretation, an uncertainty still remains as to which of two or more possible meanings represents the parties’ true intentions. Davis v. United American Life Ins. Co., 215 Ga. 521, 526-527 (2) (111 SE2d 488) (1959). Because the trial court’s order does not reach the issue of whether the policy is ambiguous, we do not address it here. Strength v. Lovett, 311 Ga. App. 35, 44 (2) (b) (714 SE2d 723) (2011). Upon remand, the trial court should consider whether and to what extent the outlined policy provisions are ambiguous. However, we note that if an insurance contract contains “contradictory clauses or other ambiguities... they must be construed favorably to the insured and against the insurer.” Davis, supra at 527. Should the trial court find that any ambiguity cannot be resolved by the normal rules of contract construction, then it necessarily follows that

Decided November 20, 2013.

Robin F. Clark, for appellant.

Stephanie V. Chavies, Donna O. Willis, for appellee.

the adequacy of the notice and the merit of [the insured’s] claim of justification are ones of fact which must be resolved by a jury as they are not susceptible to being summarily adjudicated as a matter of law.

(Citations omitted.) State Farm Mut. Auto. Ins. Co. v. Sloan, 150 Ga. App. 464, 466 (2) (258 SE2d 146) (1979).

2. Eells argues that the trial court erred in failing to allow a jury to decide the fact question of whether he was a resident in his parents’ household. However, because the trial court did not address this argument in its order, we will not address it here. Strength, supra.

In summary, we affirm as to the trial court’s determination that the oral notice provided was insufficient, but as to whether the contract provisions were ambiguous and, if so, whether Eells’ delay in providing written notice was justified, we reverse and remand to the trial court for further proceedings not inconsistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

Barnes, P. J., and Miller, J., concur.

       We note, but do not decide, that the “EFILED” order in this case may not comply with the rules of this Court, which require that trial court orders subject to appeal must contain the signature of the trial judge, and that conformed signatures, stamped signatures, and signatures with permission are not permitted. See Court of Appeals Rules 1 (a), 17, 30 (a) and 30 (e).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A13A1121.
    A13A1122.
    CITRUS TOWER BOULEVARD IMAGING CENTER, LLC v. DAVID S. OWENS, MD, PC et al. DAVID S. OWENS, MD, PC v. CITRUS TOWER BOULEVARD IMAGING CENTER, LLC.
    (752 SE2d 74)
   Dillard, Judge.

These appeals arise out of a lease by Citrus Tower Boulevard Imaging Center, LLC (“Citrus”) to David S. Owens, MD, PC (“the PC”) of certain magnetic resonance imaging equipment and related services. The trial court granted summary judgment to the PC’s principal, Dr. David S. Owens (“Owens”) in Citrus’s action on a guaranty agreement executed in connection with the lease. Citrus appeals from that order in Case No. A13A1121, arguing that the admissions in Owens’s answer created a genuine issue of material fact, which precluded the grant of summary judgment. In Case No. A13A1122, the PC cross-appeals from the trial court’s order granting summary judgment to Citrus in its action to recover rent and other amounts owing under the lease. Specifically, the PC argues that the trial court erred because, inter alia, the lease was ambiguous and parol evidence showed that the conditions required for the commencement of the lease term never occurred. For the reasons noted infra, we affirm in both cases.

At the outset, we note that summary judgment is appropriate when the moving party can show that there is “no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” A movant may meet this burden when “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” And should the moving party meet this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.”

So viewed, the record shows that Owens, the PC’s principal, is a radiologist whose practice focuses on reading and interpreting body-scan images made with CRT, MRI, X-Ray and other medical equipment. The PC, according to Owens, “receives and interprets film from primarily around the Southeast.”

Citrus, a Georgia limited-liability company, owned and managed a diagnostic-imaging center in Clermont, Florida. On or about December 16, 2008, Citrus and the PC entered into the Lease Agreement (the “Lease”) at issue here. And under the terms of this Lease, which the parties agreed would be governed by Georgia law, the PC leased from Citrus the use of certain imaging equipment and related services. The PC initially agreed to pay Citrus rent in the amount of $100,000 per month, but that amount was later increased to $150,000 per month in a January 2009 amendment to the Lease. The term of the Lease was ten years, “commencing] on the first day that the Imaging Center is functionally operational.” The PC’s right to use the leased equipment was on a nonexclusive basis, and the rent was payable whether or not the PC actually used the leased equipment.

On or about December 15, 2008, Owens executed a “Guarantee Agreement” (the “Guaranty”), also governed by Georgia law, pursuant to which the guarantor agreed to “guarantee [ ] to [Citrus] the full and prompt payment in cash and whenever due ... all sums now or hereafter payable under the Lease ....” And while it is not disputed that Owens signed the Guaranty, the guarantor is designated as “David Owens, MD, PC” in two separate places, with Owens writing “David Owens—MD PC” on the signature line. Owens also signed his name under the signature line accompanied by what he contends to be—and Citrus does not dispute—the designation of “Managing Member.”

In October 2010, the PC announced that it was opening a satellite office in Clermont, Florida. Owens testified that the Clermont facility began “scanning real patients . . . around October of 2010,” and that the facility opened in the autumn of 2010. At this time, Owens and the PC began reading MRI scans taken at the Clermont facility.

Nevertheless, the PC failed to make any rent payments under the Lease, and in April 2011, Citrus sent a demand letter to Owens and the PC requesting payment of past due rent, plus interest, from December 2010 through April 2011. And when no payments were forthcoming, Citrus sued the PC and Owens in the State Court of Fulton County, alleging breach of contract under both the Lease and the Guaranty. The trial court subsequently granted Owens’s cross-motion for summary judgment on Citrus’s claims under the Guaranty. Citrus appeals from this order in Case No. A13A1121. But the trial court granted Citrus’s motion for summary judgment against the PC as to Citrus’s claims on the Lease. In Case No. A13A1122, the PC cross-appeals from this order.

Case No. A13A1121

1. Citrus claims that the trial court erred in granting Owens’s motion for summary judgment because Owens’s admissions in his original answer created a genuine issue of material fact as to whether he signed the Guaranty in his personal capacity. We disagree.

Paragraph 11 of Citrus’s complaint alleged, in pertinent part, that “[o]n or about December 15, 2008, Owens executed a Guaranty (the ‘Guaranty’).” And in Paragraph 12 of its complaint, Citrus maintained that “[pjursuant to the terms of the Guaranty, Owens guaranteed payment of all sums owing under the Lease, including all costs, expenses, and attorneys’ fees.” Owens and the PC filed an answer in which “Defendant Owens” admitted the allegations of Paragraphs 11 and 12 of Citrus’s complaint. In an amended answer, Owens later denied the allegations of Paragraphs 11 and 12 of the complaint.

As applicable here, former OCGA § 24-3-30 provides that “[without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” For an admitting party to contravene its admission, “the party must first amend the pleading to withdraw the admission in judicio before such evidence may be submitted.” Even so, the other party may rely on the original admission as evidence. In other words,

[although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. Even after its withdrawal, an opposing party undeniably has a right to use it as evidence.

Notwithstanding the foregoing, an admission in judicio applies only to “the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact.”* Thus, where the admission is simply “an opinion on the part of the party making it as to the legal effect of a paper,” the withdrawn admission is not a fact that can be taken advantage of by the opposing party.

In the case sub judice, Owens withdrew his admissions by amending his answer, and so the relevant issue is whether the withdrawn admissions were nevertheless evidence of a fact that precluded the trial court’s grant of summary judgment to Owens. And in our view, the withdrawn admissions do not constitute such evidence. Owens’s admission that he “executed” the Guaranty may demonstrate that he signed the Guaranty, but that fact is undisputed and in itself does not create a genuine issue of material fact as to whether Owens was personally bound thereby. And Owens’s admission that “[p]ursuant to the terms of the Guaranty, [he] guaranteed payment of all sums owing under the Lease” is only an opinion or conclusion as to the legal effect of that instrument. Although Citrus argues that this is evidence of the “fact” of Owens’s guaranty of the Lease obligations, the admission was made in reference to the “terms of the Guaranty,” which is the controlling legal instrument. And it is well established that construction of a contract is a question of law for the court “based on the intent of the parties as set forth in the contract.”' To be sure, if this admission remained in the answer, Citrus may have been entitled to take advantage of such admission “as a consent... that the case might be determined upon that theory without reference to what was the correct interpretation of the [Guaranty].” But the admission was in fact withdrawn, and barring exceptions such as ambiguity or prejudice, “it is immaterial what may have been said by one of the parties ... as to what the [Guaranty] meant.”

As to whether Owens was obligated under the Guaranty, this Court examines the language of the contract to “determine in what capacity the representative is bound.” Further, contracts of surety or guarantee are “strictly construed and are statutorily barred from extension by interpretation or implication.” As noted supra, the guarantor under the Guaranty is specifically designated as the PC. Not once, but twice. Indeed, the name of the PC is clearly written on the signature line along with Owens’s signature, under which is Owens’s signature again, and which is then followed by an indication that he is signing in a representative rather than a personal capacity. The express and unambiguous language of the Guaranty establishes that the guarantor is the PC, not Owens.

In reaching this conclusion, we acknowledge that for the PC to guarantee its own obligations does not appear to be particularly meaningful to either Citrus or the PC, absent a future assignment of the Lease—which would then, perhaps, provide Citrus with a certain degree of belt-and-suspenders assurance that the PC remains liable for any and all obligations under the Lease. But regardless of whether the Guaranty actually provides Citrus with any tangible benefits, we are not at liberty to rewrite the parties’ instrument or ignore the clear import of Owens explicitly signing the Guaranty on behalf of the PC. Just as we do not give a guarantor a pass when he fails to read the guaranty before signing it, we likewise will not save a creditor from the consequences resulting from its failure to carefully inspect the guaranty to ensure that the proper “personal capacity” designations and signatures have been made. To be sure, this Court has previously suggested in dicta that a corporate guarantee of corporate debt is all but meaningless, and that this fact might serve as an additional justification for imposing personal liability on a signatory to a guaranty. But any inquiry into the “meaninglessness” of a corporate guaranty of corporate debt is entirely inappropriate, and indeed runs contrary to our charge to strictly construe guaranties, when a guarantor has—as in this case—explicitly signed the guaranty in a corporate capacity. As such, we take this opportunity to strongly caution trial courts against relying on any of our decisions employing such dicta as a justification for imposing personal liability on a signatory to a guaranty when the clear and unambiguous language of same indicates the exact opposite. And here, because Owens unambiguously signed the Guaranty in a corporate capacity, he was entitled to summary judgment.

Case No. A13A1122

2. The PC contends that the trial court erred in finding that the Lease was not ambiguous and in excluding parol evidence of the parties’ collateral agreements defining the terms “Imaging Center” and “functionally operational.” We disagree.

The construction of a contract is a three-step analytical process. The trial court must first decide if the language is clear and unambiguous, and, if it is, no construction is required, the court simply enforces the contract according to its plain terms. But if the contract is ambiguous in some respect, the court must then apply the rules of contract construction to resolve that ambiguity. Lastly, if the ambiguity remains after applying the rules of construction, then the meaning of the ambiguous language and the parties’ intentions are issues for a jury.

A contract is ambiguous if the words used therein “leave the intent of the parties in question—i.e., that intent is uncertain, unclear, or is open to various interpretations.” On the other hand, no ambiguity exists where, “examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation.”

At issue here is the meaning of the terms “Imaging Center” and “functionally operational” as set forth in the Lease provision defining the term of the Lease. Both parties agree that although the Lease was executed in December 2008, the term of the Lease did not begin at that time. But the PC contends that conditions required for the term of the Lease to commence were never met and therefore its obligation to pay Citrus never arose. The Lease provides:

2. TERM. The term of this Lease shall commence on the first day that the Imaging Center is functionally operational (the “Effective Date”), and unless terminated as hereinafter provided, shall continue for a term of ten (10) years (the “Term”).

Although “Imaging Center” is capitalized, the term is not defined in the Lease. However, within the context of the Lease, the Imaging Center can only refer to Citrus’s facility in Clermont, Florida. For example, the Lease, in another provision, speaks of the “Imaging Center facility.”

Similarly, the term “functionally operational” is not defined in the Lease itself. But looking first to its plain and ordinary meaning, “functionally” is defined as “in a functional manner.” And “operational” is defined as “[i]n a condition of readiness to perform some intended... function.” Thus, consistent with the findings of the trial court, we conclude that, viewing the Lease as a whole, the Imaging Center became “functionally operational” when it was ready to perform its intended function.

Relying on Owens’s affidavit, the PC maintains that Owens and Citrus’s representative orally agreed as to what was required for a “functionally operational” Imaging Center. These discussions occurred both before and after the Lease was executed in December 2008. And according to Owens, the agreement between the PC and Citrus as to the elements of a “functionally operational” Imaging Center included the following:

(i) adequate patient referral flow agreements;

(ii) insurance contracts in place which would permit claims for images from the imaging center to be processed and reimbursed at rates assured by Citrus;

(iii) imaging equipment certified by ACR and maintained in accordance with insurance industry standards;

(iv) adequately trained personnel to provide professional services to operate the imaging equipment;

(v) a fully stocked “crash cart” for patient safety; and

(vi) completion of finished space in the office building suitable for occupancy and use.

It is true, of course, that extrinsic evidence is admissible to explain an ambiguity contained within a contract. On the other hand, where the terms of the contract are clear and unambiguous, “the court looks only to the contract to find the parties’ intent.” Accordingly, the trial court correctly refused to look outside the terms of the Lease to determine when the parties intended the term of the Lease to begin. But even if we assume arguendo that “functionally operational” and “Imaging Center” are ambiguous terms,, the evidence as to the foregoing oral agreements remains inadmissible. The detailed and complex set of conditions and duties purported to constitute a “functionally operational” Imaging Center do more than merely explain an alleged ambiguity as to the term of the Lease. They significantly add to Citrus’s obligations thereunder, and it is well established that parol evidence is inadmissible to “add to, take from, vary or contradict the terms of a written instrument.”

Contending that the Lease is nevertheless “incomplete on its face,” the PC argues that extrinsic evidence should be admitted to determine when the Lease became effective. Specifically, the PC argues that “[i]f the writing appears on its face to be an incomplete contract and if the parol evidence offered is consistent with and not contradictory of the terms of the written instrument, then the parol evidence is admissible to complete the agreement between the parties.” And here, the Lease is incomplete on its face to the extent that it does not specify the suite that the PC would be entitled to use at the Clermont facility. Indeed, the suite number is designated “TBD,” which is apparently an abbreviation for “to be determined.” But the alleged collateral oral agreements reflected in Owens’s affidavit have no relevance to the identification of the suite number.

Furthermore, because the Lease was not to be performed within one year of its making, it falls squarely within the Statute of Frauds. And inasmuch as the Lease was required by the Statute of Frauds to be in writing, it could not be modified by an oral agreement. For all the foregoing reasons, we find that the trial court did not err in finding the Lease to be unambiguous and in excluding parol evidence of the alleged oral agreements between the parties.

3. The PC also argues that if parol evidence cannot be admitted to show Citrus’s agreements in variance of the Lease, a jury could nevertheless determine that Owens’s testimony showed that the Imaging Center was not “functionally operational” under the plain meaning of the contract. Therefore, the PC contends that genuine issues of material fact preclude the grant of summary judgment. Once again, we disagree.

As discussed supra, Owens posits in his affidavit the alleged collateral agreements as to the elements of a functionally operational Imaging Center. He then ultimately avers that “[mjany, but not all” of those elements were never provided by Citrus. Indeed, Owens specifically avers that Citrus still has not (1) “put in place adequate contracts with insurance companies”; (2) “put in place the referral contracts necessary to make the imaging center functionally operational with a meaningful volume of patients”; (3) “obtained] all the necessary certifications and maintenance of the magnetic resonance (MR) imagery equipment so that it could be deemed functionally operational”; and (4) “fully completed the build out of space agreed to be part of the Imaging Center.” But the record shows that Owens testified during his deposition that the Clermont facility was open and “began scanning real patients . . . around October of 2010.” Owens also produced numerous documents showing that the PC began practicing out of the Clermont facility in October 2010. Moreover, MRI scans read by the PC were performed at the facility in the autumn of 2010, and Owens indicated that the PC generated revenue at the Clermont facility beginning in 2010. And records produced by Owens also showed that hundreds of MRI scans were performed at the Imaging Center beginning in the autumn of 2010. Given the undisputed facts regarding the PC’s use of the Imaging Center, the trial court did not err in finding that there was no genuine issue of material fact as to whether the Imaging Center was functionally operational by December 2010, the time from which Citrus demanded rent from the PC.

4. The PC further asserts that the trial court erred in failing to rule on and sustain the evidentiary objections of the PC and Owens as to the affidavit of Citrus’s managing member, George Overend, which was submitted in support of Citrus’s motion for summary judgment. Again, we disagree.

The PC filed a motion to strike Overend’s affidavit, in which he avers that the Imaging Center became operable in December 2010. And in its summary-judgment order, the trial court noted that the parties agreed at the hearing that it need not rule on the PC and Owens’s objection to Overend’s affidavit. The PC asserts, and Citrus does not dispute, that there was never any agreement by the parties that the trial court need not rule on the objection in the event that, as ultimately occurred, the trial court granted Citrus’s motion for summary judgment. But even if Overend’s affidavit had been struck, the evidence—-particularly Owens’s deposition testimony—still demands the grant of summary judgment to Citrus as to its claims against the PC. Accordingly, even if the trial court erred in failing to address the objection to Overend’s affidavit, the error was harmless.

5. The PC further argues that its affirmative defense of fraud in the inducement precluded the entry of summary judgment for Citrus. Once again, we disagree.

The elements of fraud, according to the PC, were established by Owens’s averment that Citrus’s representative, Franklin Trell, made false representations to Owens, which Owens then relied upon in causing the PC to enter into the Lease, Guaranty, and the amendment to the Lease. According to Owens, Trell falsely represented to him that Citrus secured or would secure the elements of a functionally operating Imaging Center discussed supra, such as adequate patient-referral-flow agreements and insurance contracts, among other things. The PC asserts that a jury could find that those representations were made with Citrus’s knowledge that the statements were false or with an intent not to perform.

Here, however, the PC continued to utilize the services provided by Citrus’s Clermont facility even after it realized that the alleged representations were false, and it opted not to formally rescind the Lease even, according to Owens, “with the lawsuit coming on.” And as we have previously explained, “[i]t is incumbent upon a party who attempts to rescind a contract for fraud to repudiate it promptly on discovery of the fraud.” Thus, inasmuch as the PC did not rescind the Lease, it was bound by the terms contained therein. In addition, the Lease contained a merger clause, which provided that the “Lease constitutes the entire agreement between the parties hereto . .. and there are no other agreements, understandings, restrictions, warranties, or representations between the parties other than those set forth herein . . . .” Accordingly, the PC is precluded from relying on representations that were not part of the contract. And as fraud requires a showing of justifiable reliance (evidence of which is lacking here), the PC simply cannot establish that it was fraudulently induced into entering into the Lease and shows no grounds for reversal.

Decided November 20, 2013.

Cohen, Pollock, Merlin & Small, Gus H. Small, Jr., Gregory K. Morgan, Garrett H. Nye, for appellant.

Hal B. Parkerson, Timothy T. Read, for appellee.

6. Lastly, the PC contends that the trial court erred in granting summary judgment to Citrus because there was a genuine issue of material fact as to its affirmative defense of lack of consideration. Once again, we disagree.

The PC contends that there was a failure of consideration because Citrus never provided it with a functionally operational Imaging Center. But, as discussed supra, the evidence shows that Citrus did provide the PC with a functionally operational Imaging Center. It follows, then, that there is no genuine issue of material fact remaining as to the PC’s claim of a failure of consideration.

Judgments affirmed.

Andrews, P. J., and McMillian, J., concur.

        Bd. of Comm’rs v. Barefoot, 313 Ga. App. 406, 408 (721 SE2d 612) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

       Under the schedule of equipment use the PC was afforded “200 MRI scans/CPT Codes per month,” and these scans could be scheduled on an as needed basis. By the January 2009 amendment to the Lease, the number of “leased MRI scans” per month was increased to 300.
      The Lease also contemplated that the PC would have the right to use a medical office suite and the services of necessary personnel to operate the Imaging Center facility.

       Pursuant to the Lease, the rent was payable “whether or not the Equipment is actually used by Lessee during all of the Scheduled Time.”

       The answer, which was submitted by Owens’s attorney, set forth defined terms for both the PC (“Owens PC”) and Owens individually (“Owens”), and the answer shows that it was Owens, in his individual capacity, who admitted the paragraphs of the complaint at issue.

       This provision is now codified at OCGA § 24-8-821, and it is virtually identical to the predecessor statute (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other”).

        Wahnschaff v. Erdman, 232 Ga. App. 77, 78 (1) (502 SE2d 246) (1998).

        Id. at 78-79 (1).

        Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 502 (1) (748 SE2d 407) (2013) (punctuation omitted).

        Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990) (punctuation omitted); accord Wahnschaff, 232 Ga.App. at 79-80 (2). There may be an admission in judicio as to the existence of a fact or legal relationship between the parties. See Howell Mill/Collier Assoc., 194 Ga. App. at 172 (2).

        McElmurray v. Blodgett, 120 Ga. 9, 16 (4) (47 SE 531) (1904); accord Ferguson v. Carver, 257 Ga. App. 849, 851 (2) (572 SE2d 700) (2002).

        McElmurray, 120 Ga. at 16 (4).

        See Georgia-Pacific, 293 Ga. at 502 (1) (finding appellees “correct that withdrawal or amendment [to their original pleadings] prevents the original admissions from serving as solemn admissions in judicio”). Compare Walker v. Sutton, 222 Ga.App. 638, 639 (1) (476 SE2d 34) (1996) (finding that appellee was “estopped from tardily contradicting his responsive pleading, interrogatory responses and pretrial order because of [appellant’s] detrimental reliance”).

        See generally Elwell v. Keefe, 312 Ga. App. 393, 395 (718 SE2d 587) (2011) (noting that “[cjontracts may be signed by one acting in a representative capacity, or a representative may make himself liable for the debt of the corporation” (punctuation omitted)).

        Deep Six, Inc. v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000) (emphasis supplied).

        McElmurray, 120 Ga. at 16.

        Id. We note that this principle also applies to Owens’s affidavit to the extent he offered statements as to his intent in entering into the Guaranty. Indeed, because the Guaranty is unambiguous, “parol evidence is neither admissible nor probative.” Dennisson v. Lakeway Publishers, Inc., 196 Ga. App. 85, 86 (2) (395 SE2d 366) (1990). The trial court, after finding that Citrus accepted the Guaranty “wherein only [the] PC is bound,” additionally considered Owens’s averment that he had been unwilling to personally guaranty the PC’s obligations under the Lease. But if the trial court’s analysis was, in part, erroneous, we will nevertheless affirm the grantof summary judgment ifit is right for any reason. See, e.g., Travelers Excess and Surplus Lines Co. v. City of Atlanta, 297 Ga. App. 326, 326 (677 SE2d 388) (2009).

        Grot v. Capital One Bank (USA), N.A., 317 Ga. App. 786, 794 (6) (732 SE2d 305) (2012) (punctuation omitted).

        Elwell, 312 Ga. App. at 395; see also Caves v. Columbus Bank & Trust Co., 264 Ga. App. 107, 114 (589 SE2d 670) (2003) (noting that “Georgia courts strictly construe guaranty agreements in favor of the guarantor,” and that “the guarantor’s liability cannot be extended by implication or interpretation”); OCGA § 10-7-3 (“The contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation.”).

        See Groth v. Ace Cash Express, Inc., 276 Ga. App. 350, 353 (623 SE2d 208) (2005) (holding that a note signed in a corporate capacity does not bind signatories individually).

        See Porter Coatings v. Stein Steel, 157 Ga. App. 260, 262 (3) (277 SE2d 272) (1981) (“No construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such instances, the language used must be afforded its literal meaning and plain ordinary words given their usual significance.”).

        See, e.g., NW Parkway, LLC v. Lemser, 309 Ga. App. 172, 176 (2) (709 SE2d 858) (2011) (noting the cardinal rule that “a court should, if possible, construe a contract so as not to render any of its provisions meaningless and in a manner that gives effect to all of the contractual terms” (punctuation omitted)).

        See PlayNation Play Systems, Inc. v. Jackson, 312 Ga. App. 340, 342 (718 SE2d 568) (2011) (refusing to “extend a guarantor’s liability by implication or interpretation—an act forbidden to the courts”); see generally Coffee Sys. of Atlanta v. Fox, 227 Ga. 602, 602 (182 SE2d 109) (1971) (finding that “[cjourts do not make contracts for the parties”).

        See Caves, 264 Ga. App. at 112 (holding that guarantor’s “failure to read the guaranty carefully and inform himself about his obligations . . . cannot discharge him from liability.”); Fore v. Parnell-Martin Cos., 192 Ga. App. 851, 852 (1) (386 SE2d 723) (1989) (“It is the duty of contracting parties to inform themselves with reference to the subject matter about which they desire to contract; if they fail to do so and a mistake is made owing to their own ignorance and failure to inform themselves, then any injury results from their own conduct.”) (punctuation omitted); OCGA § 23-2-29 (“If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not grant relief; nor shall the ignorance of a fact known to the opposite party justify an interference if there has been no misplaced confidence, misrepresentation, or other fraudulent act.”).

        See Keane v.Annice Heygood Trevitt Support Trust, 285 Ga.App. 155, 158(645SE2d641) (2007) (noting in dicta that “if the obligation was limited to Keane in his corporate capacity, the guaranty would have been rendered meaningless as the corporation was already obligated on the debt”); Kirves v. Juno Indus., 226 Ga. App. 508, 509 (487 SE2d 31) (1997) (holding that “the contract is unambiguous” and explicitly contained language personally guaranteeing the corporate debt, and noting in dicta that “[a]ny other construction of the ‘Letter of Guarantee’... would be meaningless”); Upshaw v. S. Wholesale Flooring Co., 197 Ga.App. 511, 513 (3) (398 SE2d 749) (1990) (finding that “[a]lthough appellant also relies upon her placement of the abbreviation ‘Sec.’ immediately after her signature, such an abbreviation is a mere word of description and the obligation incurred by appellant is personal,” and noting in dicta that a finding that appellant signed a guaranty in her corporate capacity would render document meaningless).

        Compare Keane, 285 Ga. App. at 157 (rejecting argument that guarantor signed guaranty in capacity as a shareholder because while “the guaranty references the fact that Keane is a shareholder,... it does not expressly provide that Keane is signing the guaranty in this capacity” and the “language employed bound Keane in his personal capacity”).

        Gen. Steel, Inc. v. Delta Bldg. Sys., Inc., 297 Ga.App. 136, 138 (1) (676 SE2d 451) (2009).

       Id.

        Id.

        Id.

         Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 249 (2) (669 SE2d 414) (2008) (punctuation omitted).

         Id. (punctuation omitted).

       Further, the lessor is the “Citrus Tower Boulevard Imaging Center, LLC,” and the PC is afforded the right to use a medical office suite at “Citrus Tower Blvd” in Clermont.

       The Compact Oxford English Dictionary 649 (2d ed. 1991). See generally Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995) (noting that courts may turn to a dictionary for the plain, ordinary, and popular sense of a word in interpreting contracts).

       The Compact Oxford English Dictionary 1217 (2d ed. 1991).

        See Archer W. Contractors, Ltd. v. Estate of Mack Pitts, 292 Ga. 219, 224 (2) (735 SE2d 772) (2012) (providing that contracts must be construed as a whole).

       When Owens’s affidavit is read in conjunction with his deposition, it appears that “ACR” refers to the American College of Radiology.

        See OCGA § 13-2-2 (1).

        Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 51 (1) (653 SE2d 486) (2007).

        Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 424 (1) (211 SE2d 720) (1975); accord OCGA § 13-2-2 (1); In re Estate of Belcher, 299 Ga. App. 432, 436 (1) (a) (682 SE2d 581) (2009).

        Preferred Risk Mut. Ins. Co., 233 Ga. at 424-425 (1).

       OCGA § 13-5-30 (5).

        See Jaraysi v. Sebastian, 318 Ga. App. 469, 475 (1) (c) (733 SE2d 785) (2012); Johnson v. Ashkouti, 193 Ga. App. 810, 810 (1) (389 SE2d 27) (1989).

        See, e.g., Grot, 317 Ga. App. at 791 (3) (reiterating that an appellant must show harm as well as error to prevail on appeal).

        See Griffin v. State Bank, 312 Ga. App. 87, 90 (1) (a) (718 SE2d 35) (2011) (noting that the elements of fraud include “a false representation hy a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff” (punctuation omitted)).

        See id. at 91 (1) (a) (noting that “claims of fraud arising from a representation of a future event made with knowledge that it is false or intention not to perform may be actionable” (punctuation omitted)).

        Browning v. Powell, 165 Ga. App. 315, 317 (2) (301 SE2d 52) (1983) (punctuation omitted).

        See Novare Group, Inc. a. Sarif, 290 Ga. 186, 190 (3) (718 SE2d 304) (2011).

        See First Data POS, Inc. v. Willis, 273 Ga. 792, 794-795 (2) (546 SE2d 781) (2001) (holding that “in an arm’s length business transaction, pre-contractual representations are superceded by a valid contractual merger clause, and cannot form the basis of post-contractual claims of theft by deception, fraud, or misrepresentation”).

        See Novare Group, 290 Ga. at 190 (3).

        See OCGA §§ 13-3-40 (a) (consideration is essential to an enforceable contract); 13-5-9 (total or partial failure of consideration may be pleaded as a defense to enforcement of a promise); Han v. Han, 295 Ga. App. 1, 4 (2) (670 SE2d 842) (2008) (same).


text:
    A13A1210.
    SECURITY REAL ESTATE SERVICES, INC. v. FIRST BANK OF DALTON.
    (752 SE2d 127)
   Ray, Judge.

Security Real Estate Services, Inc. (“SRES”) appeals from the trial court’s denial of its motion for summary judgment on First Bank of Dalton’s (“First Bank”) request for attorney fees and expenses of litigation pursuant to OCGA § 13-6-11. For the following reasons, we reverse.

“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. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted.) Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 628 (725 SE2d 336) (2012).

This case is related to another appeal before this Court, First Bank of Dalton v. Security Real Estate Services (Case No. A13A1209) 325 Ga. App. XXI (Nov. 20, 2013), in which we affirmed the trial court’s grant of summary judgment to SRES on First Bank’s claims of breach of contract and negligence pursuant to Court of Appeals Rule 36. In the instant appeal, SRES argues that because First Bank was awarded no damages in Case No. A13A1209, SRES is entitled to summary judgment as a matter of law on First Bank’s bid for attorney fees and expenses pursuant to OCGA § 13-6-11. We agree.

Decided November 20, 2013.

McGuireWoods, Charles J. Myers, Nathan A. Wood, Robert J. Waddell, Jr., Thomas R. Walker, for appellant.

Coppedge & Evans, Warren N. Coppedge, Jr., Joseph B. Evans, for appellee.

OCGA § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as part of the damages', but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

(Emphasis supplied.)

This Court has consistently found that “[attorney fees are not recoverable under OCGA § 13-6-11 where there is no award of damages or other relief on any underlying claim.” (Footnote omitted.) 4WD Parts Center v. Mackendrick, 260 Ga. App. 340, 345 (2) (b) (579 SE2d 772) (2003). “The expenses of litigation recoverable pursuant to OCGA § 13-6-11 are ancillary and may only be recovered where other elements of damage are also recoverable.” (Citation and punctuation omitted.) Cabrel v. Lum, 289 Ga. 233, 240 (6) (710 SE2d 810) (2011). Because First Bank is not entitled to attorney fees and expenses under OCGA § 13-6-11 as a matter of law, the trial court erred in denying SRES’s motion for summary judgment on this count.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

       First Bank did not file an appellate brief in the instant appeal.


author: MCMILLIAN, Judge.

text:
    A13A1321.
    OTTLEY v. THE STATE.
    (752 SE2d 92)
   MCMILLIAN, Judge.

Winfred Ottley appeals the denial of his motion for new trial after a jury convicted him of three counts of cruelty to children, one count of sexual battery, two counts of aggravated assault, two counts of rape, one count of child molestation, one count of incest, and two counts of aggravated child molestation. On appeal, Ottley argues that the evidence was insufficient to support his convictions and that he received ineffective assistance of counsel. Although we find the evidence sufficient to support his convictions, we reverse for a new trial because we find that Ottley has carried his burden of demonstrating that he received ineffective assistance of counsel.

Viewed in the light most favorable to support the verdict, the evidence showed that at the pertinent time, Ottley was married to the victim’s mother, but they separated in November 2008 and were in the process of divorcing at the time of the trial in May 2010. The victim was the mother’s child from a previous marriage. On May 9, 2009, after the Ottleys separated, the victim reported to her mother and grandmother that Ottley had been molesting her since 2006, when she was nine years old. The victim told her mother that Ottley put a knife to her throat, threatened her, made her take off her pants and put his penis inside her. She later told her mother that the last time it had happened was January 2009 when she was visiting Ottley.

At trial, the victim testified that in May 2006, she was at home with Ottley and her younger brother while her mother was in Brazil on business. The first time Ottley touched her, he came into her room one night, put a knife to her throat, and ordered her to take off her pants or he would kill her. He then put his penis in her “private part” (the “First Incident”). She said that this happened again, but she could not remember how many times, in either his bedroom or hers, but he did not use a knife. The last time it happened, in January 2009, the victim was 12 years old, and Ottley was staying at a friend’s house following his separation from the victim’s mother. Ottley was hosting the victim and her little brother during a planned weekend visit. In that incident, Ottley put his mouth on the victim’s private part (the “Last Incident”).

The victim’s family members testified that the victim’s behavior toward Ottley changed around the time of the First Incident. Although they had more of a father-daughter relationship before that time, the victim later began to avoid Ottley. She would hang her head, cast her eyes downward, tear up, and act nervous and frightened when he was around. Her mother said that at the time, she attributed the victim’s behavior to her sensitivity to criticism and her ADHD (Attention Deficit Hyperactivity Disorder), and she outlined medications that the child had taken for that condition. The family members also testified that the victim’s demeanor changed around the pertinent time: before, she was a happy child, but later became “sensitive,” “stiff,” “withdrawn,” and “saddened.” And in the summer of 2009, the victim’s stepmother caught her masturbating.

On May 12, 2009, a few days after the victim’s outcry to her mother, the victim was examined by her family pediatrician, Dr. Richard Mansfield. After she described the incident with the knife to Dr. Mansfield, he conducted a pelvic examination. He had never conducted such an examination on the victim before because there was no reason to do so. During that examination, he noticed an irregularity or asymmetry on her hymen, which he described as a scar and which he said indicated blunt trauma to the area. Dr. Mansfield found that this evidence supported a finding of sexual trauma or abuse. He testified that the condition of her hymen would not occur from everyday child-like activities such as riding a bike, jumping, or gymnastics. Dr. Mansfield testified, however, that the child’s hymen was intact.

The victim was also examined by Cathy Cooley, a nurse practitioner in public health and a sexual assault nurse examiner (“SANE”), on May 19, 2009. Cooley was qualified as an expert in sexual assault examinations of pediatric victims. Cooley explained that before examining the victim, she first got a history of the situation from the victim and her mother. The victim told Cooley that the incidents had happened numerous times over a three-year period, and she described some of the acts involved.

Cooley stated that the first thing she noticed during her physical examination of the victim was that the opening to her vagina was gaping open, and “normally you don’t see that except on a [30-year-old] that’s had a couple of children.” She observed that the labia was “stretched,” “flaccid” and “non-resilient.” In addition, she found evidence of a “wrinkle wound” in one area of the victim’s vulva, which she said indicated repetitive, skin-to-skin friction. Cooley also observed scarring on the victim’s hymen. She opined that the scarring was caused by blunt penetrating trauma. She further testified that the injuries could not have been caused by masturbation, horseback riding, gymnastics, or consensual sex.

Additionally, Detective Sherry Ziegler of the Columbus Police Department videotaped an interview she conducted with the victim, and that recording was played for the jury. In that interview, the victim described the First Incident and told Ziegler that it had happened around 15 or 20 times. She also described some of those other incidents. But in describing the Last Incident from January 2009, the victim told Ziegler that Ottley put his private part in her private part, and she said that the only place Ottley put his mouth was on her chest.

Following his convictions, Ottley filed a motion for new trial, and this appeal followed the denial of that motion.

1. Ottley enumerates as error that the evidence was insufficient to support his convictions. In support of this argument, he points to contradictions and inconsistencies in the evidence and attacks the victim’s credibility.

However,

[w]hen the appellate courts review the sufficiency of the evidence, they do not re-weigh the evidence or resolve conflicts in the testimony; instead they defer to the jury’s assessment of the weight and credibility of the evidence. Appellate courts determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Parker v. State, 320 Ga. App. 319, 319 (1) (741 SE2d 159) (2013). And “as long as there is some evidence, even though contradicted, to support each necessary element of the [S]tate’s case, the verdict will be upheld.” (Citation and punctuation omitted.) Anderson v. State, 315 Ga. App. 679, 682 (1) (727 SE2d 504) (2012). Therefore, “[arguments about discrepancies in the victim’s testimony and credibility and other factual issues relate entirely to matters within the exclusive province of a jury.” (Citation and punctuation omitted.) Parker, 320 Ga. App. at 321 (1). “And any inconsistencies between the victim’s trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this [C]ourt’s sufficiency of the evidence review.” (Citation and punctuation omitted.) Chamblee v. State, 319 Ga. App. 484, 485 (735 SE2d 810) (2012).

Ottley also argues that the evidence was insufficient because it did not exclude every other reasonable hypothesis save that of his guilt. But “[Ottley’s] reliance upon the reasonable hypothesis rule, set forth in [former] OCGA § 24-4-6, is misplaced, as this rule applies only when the evidence is entirely circumstantial.” (Citation omitted.) Cubia v. State, 298 Ga. App. 746, 748 (1) (681 SE2d 195) (2009). “Because the victim’s testimony provided direct evidence of [Ottley’s] guilt, the reasonable hypothesis rule is not at issue here.” (Citation omitted; emphasis in original.) Mack v. State, 294 Ga. App. 518, 519 (669 SE2d 487) (2008).

Based upon our review of the record, we find that the evidence presented at trial, when viewed in the light most favorable to the verdict, was sufficient to authorize a rational jury to find Ottley guilty beyond a reasonable doubt of the crimes for which he was convicted and sentenced. See Jackson v. Virginia, 443 U. S. at 319.

2. Ottley next argues that he received ineffective assistance of counsel because his trial counsel failed to properly prepare for trial or to adequately test the expert medical evidence presented by Cooley and Dr. Mansfield on behalf of the State. He notes that his trial counsel failed to interview either of these witnesses before trial, asked only two questions of Dr. Mansfield on cross-examination, and failed to cross-examine Cooley at all.

In order to prevail on this claim, [Ottley] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Norton v. State, 293 Ga. 332, 337 (7) (745 SE2d 630) (2013).

At the hearing on the motion for new trial, Ottley’s trial attorney testified that he had been practicing law for 40 years and had tried hundreds of jury trials, including criminal trials. He said that he had won more cases than any other lawyer in Columbus.

Ottley’s counsel was retained on December 14, 2009, approximately five months before trial, and he and his associate spent hours working on the case. Thus, he felt like he was “really prepared to go to trial.” Part of counsel’s trial strategy was to point to the fact that the victim did not raise the allegation of sexual abuse until several months after Ottley had separated from her mother and only when the Ottleys were engaged in an ongoing divorce with large amounts of money at stake. Counsel and his associate planned to present testimony about the family situation and the grandmother’s unusually strong influence in the household. Additionally, they planned to rely on the fact that the child’s hymen was completely intact, which counsel believed “indicated that the child never had sex.” Accordingly, their trial strategy was to challenge the victim’s story by introducing evidence to show “why the little girl would have fabricated this story and that it couldn’t have happened.” But he did not plan to challenge the State’s medical evidence because he thought it was good for the defense.

Ottley’s counsel stated that no one in his office investigated Cooley’s credentials or interviewed her before trial because he did not think that her testimony “was going to be of any significance,” as she had examined the child four months after the Last Incident. He had no idea when he received Cooley’s report “that a nurse was going to be allowed to testify like a doctor and give opinions that a child had been molested.” He said she testified about the victim’s hymen being torn and scarred but she left that out of her report. He explained, “So we went to trial [relying] on the written report she gave[;] then we get to trial and she starts talking about all the scarring and tearing and that this child’s sexual organ looked like that of a [30-year-old] woman and all this stuff[,] and it was just kind of a surprise.”

But when questioned on the contents of Cooley’s report, counsel admitted that he overlooked a reference in the report that the victim’s “posterior labia majora [was] stretched and flaccid for [a] 12 year old, looks more like a [30-year-old] woman that has had children.” He also testified that he was completely unfamiliar with the SANE program under which Cooley was trained.

When Cooley ended up being the “main witness” at trial, he was caught off-guard. Although he objected, sometimes successfully, to some of the evidence Cooley was asked to present, including certain charts, he did not ask her a single question at trial because he and the attorney working with him were “[t]otally unprepared to cross-examine her,” and it was “too late at that point.” Ottley’s counsel stated, “I couldn’t wait for the lady to get off the stand.”

The attorney also said that he did not interview Dr. Mansfield either because he felt his testimony would help the defense as his report indicated that the victim’s hymen was intact. He also admitted that he did not do any medical research before trial because he did not see the need for it given Dr. Mansfield’s finding in this regard.

In addition to his trial counsel’s testimony, Ottley also submitted two affidavits in support of his motion for new trial, one from Dr. Mansfield and another from Dr. William B. Simpson. Dr. Mansfield’s affidavit stated that he was not interviewed by anyone from Ottley’s trial counsel’s office prior to trial. But, had he been asked during his trial testimony, he would have testified that “a hymen can have a slight tear or be broken by any blunt force trauma including masturbation” and that “[an] asymmetrical labia can be [a] congenital condition.”

Dr. Simpson stated in his affidavit that he is a duly licensed physician in the State of Georgia with a board certification in obstetrics and gynecology. During his career, he has performed over 15,000 gynecological exams. Dr. Simpson, who stated that he was not compensated for his opinion, said that he had reviewed the testimony of Cooley and Dr. Mansfield, as well as Cooley’s report and the photographs admitted at trial of the victim’s genital area, but he did not examine the victim herself. Although he acknowledged that his opinion was limited by the resolution of the photocopies, he opined that the victim’s hymen was intact and that he saw no evidence of “an opening being repeatedly penetrated by an adult penis.” He further stated that “[t]he size of a labia and/or the associated folds medically is of no medical significance” and “varies from person to... person and is congenital.”

We find that Ottley has carried his burden of establishing that his trial counsel’s performance was deficient. The evidence in support of the charges in this case included the victim’s own testimony and her prior statements, evidence from those around her regarding changes in her behavior, and the medical evidence. Ottley’s counsel’s trial strategy was to attack the child’s and her family’s credibility and to accept the State’s medical evidence. Even viewing the situation from counsel’s perspective at the time, we cannot say that this strategy was reasonable under the circumstances or that the decision to pursue such a strategy was made in the exercise of reasonable professional judgment.

It is evident from Ottley’s counsel’s testimony at the motion hearing that he was dismissive of Cooley’s role at trial because she was a nurse and “not a doctor.” Prior to trial, however, counsel had Cooley’s report, in which she identified herself as both a registered nurse and a nurse practitioner. These designations should have put counsel on notice that Cooley may have had training and education that would have qualified her to provide expert testimony.

In fact, Cooley’s report demonstrated that she had not only found an abnormality (the “30-year-old woman” finding) during her examination of the victim, but she also had drawn the conclusion that this abnormality indicated chronic, “blunt penetrating trauma of the vaginal orifice.” Under the section of the report allowing Cooley to summarize her findings, she wrote:

Specific location of finding consistent with history of blunt penetrating trauma of the vaginal orifice. No other history of accident to cause this trauma. Due to history and examination being chronic instead of acute injury. Wrinkle wound describes a situation wherein a sweeping motion of an object contacting skin in more than one location in a sequence as it passes by.

This information, which Ottley’s attorneys apparently also overlooked, should have put them on inquiry notice as to whether Cooley’s training and experience may have qualified her to render expert medical testimony regarding the condition of the victim’s genital area and the cause for any abnormalities.

“[T]he law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise.” Hyde v. State, 189 Ga. App. 727, 728 (1) (377 SE2d 187) (1988). Accordingly, it is well settled in this State that

[a] licensed registered nurse is qualified to testify as an expert witness within the areas of her expertise. A witness with such skill, knowledge or experience in a field or calling as to be able to draw an inference that could not be drawn by the average layman may be qualified as an expert witness.

(Citation and punctuation omitted.) Rodriguez v. State, 281 Ga. App. 129, 131 (2) (635 SE2d 402) (2006) (upholding trial court’s decision to allow into evidence nurse’s opinion that the victim’s injuries were consistent with ones caused by penetration by a finger based on her education and SANE training). See also Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980) (“Medical experts are persons possessing technical and peculiar knowledge, and any person learned in medical or physiological matters [, including a nurse,] is qualified to testify as an expert thereon, even though he is not a medical practitioner.”) (citation omitted); Hyde, 189 Ga. App. at 728 (1) (upholding admission of nurse’s testimony about vaginal and hymenal scarring based on her training and education). Thus, we find that Ottley’s counsel’s assumption that Cooley would never be allowed to give expert medical testimony was not reasonable given the information available to him prior to trial and well-settled principles of Georgia law.

“In assessing trial counsel’s performance, we must be mindful that counsel’s function is to make the adversarial testing process work in the particular case.” (Citation and punctuation omitted.) Goldstein v. State, 283 Ga. App. 1, 8 (3) (b) (640 SE2d 599) (2006). And “[c]ounsel has a duty to make reasonable investigations.” (Citation and punctuation omitted.) Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990). Under the peculiar circumstances of this case, we find that Ottley’s trial counsel’s failure to investigate Cooley’s credentials, to interview either Dr. Mansfield or Cooley prior to trial, or to research the medical issues rendered his performance outside the wide range of reasonable professional conduct. In particular, we find it troubling that the defense strategy was to show that the victim fabricated her testimony, yet counsel failed to investigate Cooley’s findings in the report that the victim suffered from trauma in her genital area or Dr. Mansfield’s potential testimony — together the only testimony on the physical evidence to be presented by the State supporting the allegations. Nor did counsel consult or call any medical expert to support the defense theory that the incidents could not have happened because the hymen was intact.

Moreover, Ottley’s trial counsel failed to test the medical witnesses’ testimony at trial in any way. He did not cross-examine Cooley at all and asked Dr. Mansfield only two questions simply to ascertain whether the victim’s hymen was intact. His only explanation for failing to question Cooley was his failure to prepare for such cross-examination. We have found that Ottley’s counsel should have investigated the substance of the testimony Cooley would offer at trial, and Ottley has demonstrated that testimony was available from other credible, objective sources to counter Cooley’s expert opinions. In fact, Dr. Mansfield himself would have contradicted Cooley’s conclusion that the condition of the victim’s hymen could not be attributable to other factors such as masturbation. And that testimony would have provided an alternative to Dr. Mansfield’s own direct testimony that the scarring was consistent with sexual abuse. Moreover, both Dr. Mansfield and Dr. Simpson would have testified that the condition of the victim’s labia could have been congenital in origin.

But because Ottley’s counsel failed to cross-examine Dr. Mansfield or to present any other medical evidence, “the jury was left with the impression that the opinions of the State’s expert witnesses were unassailable. We must agree that this omission fell below the standard of acceptable professional conduct.” Goldstein, 283 Ga. App. at 8 (3) (b). See also Darst v. State, 323 Ga. App. 614, 618 (2) (a) (ii) (746 SE2d 865) (2013) (physical precedent only) (counsel’s failure to present expert testimony regarding the behavioral patterns of sexually abused children constituted deficient assistance of counsel).

We find that “trial counsel’s failure to investigate the medical issues and seek and present expert testimony to rebut that presented by the State was a crucial omission. The State’s evidence, other than opinions from their experts, was far from overwhelming.” Goldstein, 283 Ga. App. at 8-9 (3) (b). Although the victim testified as to Ottley’s actions, her testimony and prior statements were at times inconsistent and self-contradictory. Moreover, she made her outcry in May 2010, only after the Ottleys had separated and begun a contested divorce. And although the family testified as to changes in her behavior at the pertinent time, her mother provided an alternate reason for such behavioral changes as she testified that she attributed the changes to the victim’s ADHD, for which the victim was prescribed various medications. Additionally, the jury may have considered the victim’s stepmother’s discovery of the then 12-year-old victim masturbating in a different light if Ottley’s counsel had presented evidence showing that such activity could have resulted in the scarring that Cooley described.

Thus, because the medical evidence was crucial in establishing that sexual abuse had occurred, Ottley’s counsel’s failure to take any action to counter that evidence was extremely detrimental to the defense. “Trial counsel simply did not make the adversarial testing process work. Adjudged under the foregoing criteria, we hold that the omitted evidence in this case is of sufficient probative value to require a new trial.” (Citations and punctuation omitted.) Goldstein, 283 Ga. App. at 9 (3) (b) (finding counsel ineffective in child abuse case in failing to test or present evidence in response to the State’s expert medical evidence). See also Jowers, 260 Ga. at 462 (2) (finding trial counsel rendered ineffective assistance of counsel where attorney failed to adequately investigate the case and failed to utilize the contents of the GBI reports that would have supported the defense).

Thus, “although [Ottley’s] trial counsel was experienced and generally able, his assistance in this trial was ineffective.” Goldstein, 283 Ga. App. at 1. Because he failed to present evidence to counter what he should have known would be important medical evidence in the case, a reasonable probability exists that, absent counsel’s professional error, the result of the trial would have been different. Accordingly, we conclude that Ottley is entitled to a new trial.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

Decided November 20, 2013.

Victoria L. Novak, for appellant.

Julia Fessenden Slater, District Attorney, Robert B. Bicker staff II, William D. Kelly, Jr., Assistant District Attorneys, for appellee.

       The trial court merged some of the counts for sentencing, but Ottley was given a life sentence as a recidivist under OCGA § 17-10-7 (a) on the counts of aggravated child molestation and rape, and concurrent sentences of varying periods of years on the other counts.

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

       Cooley showed the jury photographs of the victim’s genital area and described all of these observations in detail.


text:
    A13A1403.
    BYRD v. THE STATE.
    (752 SE2d 84)
   Ray, Judge.

Following a jury trial, Darryl Byrd was found guilty beyond a reasonable doubt of one count of armed robbery (OCGA § 16-8-41 (a)), two counts of burglary (OCGA § 16-7-1 (b)), two counts of aggravated assault (OCGA § 16-5-21 (a)), two counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106), and one count of possession of marijuana with the intent to distribute (OCGA § 16-13-30 (j)). He appeals from his convictions and the denial of his motion for new trial, contending that the trial court erred by allowing certain hearsay evidence to be introduced at trial. Byrd also contends that he received ineffective assistance of counsel. For the reasons that follow, we reverse the conviction for one count of aggravated assault (Count 3), and affirm his convictions on the remaining counts.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citations omitted.) Strobel v. State, 322 Ga. App. 569, 569-570 (745 SE2d 796) (2013).

So viewed, the record shows that on June 7, 2011, Shantoria Dennis and her boyfriend, Robert Lo, were at home watching television when someone knocked on their door. When they cracked open the door to see who it was, they saw a tall, dark-skinned man holding a gun. The man kicked in the door and entered their residence, along with two other individuals, one described as a light-skinned boy with a red shirt and the other as a short, dark-skinned boy with a black shirt. The three assailants were wearing bandanas which partially concealed their faces. Shantoria ran to a back room of the house to call 911, and the three assailants surrounded Lo and demanded money. When Shantoria returned to check on Lo, she saw one of the assailants appear to hit Lo in the lip with the gun while demanding money. Shantoria then ran to a back bedroom and woke up Brenda Greer, who also lived at the residence, to let her know they were being robbed. A second call to 911 was made, this time by Greer. The three assailants then ran out the door, got inside a dark-colored vehicle, and drove away. Shantoria later determined that her purse had been taken during the armed robbery.

Officer Rhett Davis was on patrol nearby when he received a dispatch to respond to the home invasion/armed robbery, and he was instructed to be on the lookout for a dark-colored vehicle containing three males. Officer Davis was familiar with the neighborhood where the home invasion took place, and he knew that the neighborhood had only one entrance and exit. As he approached the entrance to the neighborhood, he observed a dark-colored vehicle with four occupants exiting the neighborhood. Officer Davis ran the tag number and decided to initiate a traffic stop because the car matched the description of the getaway vehicle, it was in close proximity to the reported home invasion, and it had an inoperable brake light. Officer Davis activated his blue lights and followed the vehicle for “a little while” before it eventually pulled over to the side of the road. As Officer Davis was exiting his patrol car, the vehicle began inching forward and then sped off, leading Officer Davis on a high-speed chase through downtown Lawrenceville. Ultimately, the vehicle crashed as it was attempting to make a high-speed turn onto a roadway beside a RaceTrac gas station, and the occupants exited the vehicle and fled on foot.

Officer Davis and another responding officer were able immediately to apprehend the rear-left-seat passenger, Shelton Robinson, and the rear-right-seat passenger, Brenton Dennis, after a short pursuit on foot. Within minutes, two K-9 units arrived and began tracking the other two suspects. One K-9 unit located the driver, Demond Dennis, hiding on top of an air conditioner unit behind a nearby medical building. The other K-9 unit located the front-right-seat passenger, Byrd, hiding inside a trash dumpster behind a nearby business. Shelton Robinson, Brenton Dennis, and Byrd matched the description of the three perpetrators of the home invasion/armed robbery.

During a search of the vehicle, officers located Shantoria’s purse, bandanas, and .38 caliber pistol ammunition. The officers also found a blue bag containing several smaller bags of marijuana, each weighing 28 grams.

When Byrd was transported to the Lawrenceville Police Department, Officer Davis advised him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Byrd acknowledged that he understood his rights, and he indicated that he wished to speak with Officer Davis about the incident without an attorney. Thereafter, Byrd admitted to Officer Davis that he had entered the house with Brenton Dennis and Shelton Robinson for the purpose of stealing marijuana, and that Robinson was the one who had taken Shantoria’s purse.

At the conclusion of the evidence, the jury convicted Byrd on all counts in the indictment.

1. In his first enumeration of error, Byrd contends that the trial court erred in admitting Officer Davis’ hearsay testimony concerning the registration of the vehicle that was used in the incident. Byrd argues that the State was required to introduce a properly authenticated printout of the Georgia Crime Information Center (“GCIC”) computer record rather than merely relying on the officer’s testimony.

At trial, Byrd made an oral motion in limine to exclude any testimony regarding the vehicle’s registration or ownership, which the trial court denied. Thereafter, Officer Davis testified that he ran the vehicle’s tag number through the GCIC database using a laptop computer in his patrol car and that the results indicated that the vehicle was registered to Melanie Byrd, with the registered address being in Atlanta, Georgia. Officer Davis further testified that he later discovered that the defendant, Byrd, also lived at this address. Byrd argues that the admission of the hearsay testimony regarding the vehicle’s registration was unduly prejudicial because it linked him to the vehicle that was used in the incident.

We have held that where an officer runs a computer check of a tag, testimony regarding the results of the search is hearsay. Green v. State, 277 Ga. App. 867, 869 (1), n. 7 (627 SE2d 914) (2006). “The proper method of offering proof on this issue would have been through the introduction of a properly authenticated printout of the computer record rather than by the officer’s testimony alone.” (Citation and punctuation omitted.) Id. Although the trial court improperly allowed the hearsay testimony of the officer here, we find that the admission of this testimony “was harmless in light of the overwhelming direct and circumstantial evidence against [Byrd].” (Citation omitted.) Holland v. State, 310 Ga. App. 623, 627 (3) (714 SE2d 126) (2011) (improper admission of hearsay testimony regarding results of computer search of vehicle’s registration was harmless in light of overwhelming evidence).

2. In a compound enumeration of error, Byrd alleges that his trial counsel was ineffective in failing to object to two improper jury charges, in not renewing an objection to an improper prior inconsistent statement of a witness, and in not seeking any remedies for prejudicial hearsay that was injected into the trial. We shall address each ground in turn.

A criminal defendant asserting an ineffective assistance of counsel claim bears the burden of showing (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense by creating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). Further, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

(a) In Count 3 of the indictment, Byrd is charged with committing an aggravated assault upon Robert Lo by striking him in the face with a deadly weapon, a handgun. To convict Byrd of aggravated assault as indicted, the State was required to prove that the handgun was used as a deadly weapon. See OCGA § 16-5-21 (a) (2). After instructing the jury on the definition of assault, the trial court gave the following charge to the jury:

The State must also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon. A firearm, when used as such, is a deadly weapon as a matter of law.

Byrd contends that the portion of the charge which states that “[a] firearm, when used as such, is a deadly weapon as a matter of law” was not applicable to Count 3, and that it removed from the jury’s province the issue of whether the handgun was a deadly weapon based on the manner in which it was alleged to have been used. Byrd argues that trial counsel was ineffective for failing to object to this portion of the charge. We agree.

Several cases, in the context of deciding whether or not the State had proved that an instrument used to commit an assault was a deadly weapon, have held that an apparently functional firearm (whether or not actually functional) used in the manner in which a firearm is ordinarily used, i.e., by pointing the gun or using it to shoot at someone, is a deadly weapon per se. This is so because the firearm, when used in such a manner, would reasonably appear to the victim to be deadly. See Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981); Morris v. State, 149 Ga. App. 21 (253 SE2d 421) (1979); Watts v. State, 142 Ga. App. 857, 858-859 (4) (237 SE2d 231) (1977).

In Count 3, however, the handgun was not alleged to have been used in the ordinary manner in which a gun is used; it was alleged to have been used as a bludgeon or club. Therefore, the circumstances surrounding the use of the handgun, are crucial. See Gober v. State, 247 Ga. 652, 653, 656 (4) (278 SE2d 386) (1981) (whether gun was used as a deadly weapon might have been an issue for the jury where evidence showed only that defendant hit victim on the side of the head with it).

Since the law requires the State to prove all elements of a crime, there must be some evidence to show the circumstances surrounding the use of the handgun to strike Lo on his lip, such as the degree of force used, the likelihood of serious injury, or the nature of the injuries actually received. See generally Williams v. State, 127 Ga. App. 386, 389 (2) (193 SE2d 633) (1972). Compare Green v. State, 221 Ga. App. 694, 695 (2) - 696 (3) (472 SE2d 457) (1996) (affirming a conviction for aggravated assault where witness testified that defendant hit the victim in the head with the pistol so violently that it sounded like a shot and resulted in bleeding); Ortiz v. State, 292 Ga. App. 378, 381 (2) (665 SE2d 333) (2008) (aggravated assault established where the evidence showed, without conflict, that defendant struck the victim with a handgun so violently that it caused the victim to bleed, and victim testified that, during the attack, he was afraid because he thought he was going to be killed). Here, the evidence produced by the State failed to show any details about the use of the handgun as alleged in Count 3 of the indictment that would render the handgun a “deadly weapon” as a matter of law.

Under these particular circumstances, trial counsel was ineffective for failing to object to the trial court’s instruction that “[a] firearm, when used as such, is a deadly weapon as a matter of law.” The trial court’s instruction seemingly removes from the jury’s province the question of whether the State had established an essential element of aggravated assault in Count 3, i.e., the use of the handgun as a deadly weapon. Additionally, the facts as proven cannot support a conclusion that the firearm was used as a deadly weapon as it must have been so used due to the language of the indictment. Thus, the requisite prejudice for trial counsel’s ineffective assistance has been shown. Accordingly, Byrd’s conviction for aggravated assault in Count 3 of the indictment must be reversed.

(b) With regard to Byrd’s custodial statement to the police, the trial court instructed the jury to first determine whether Byrd was advised of his Miranda rights and, if so, whether he knowingly and voluntarily waived those rights before making his statement. The trial court further charged the jury as follows:

If you find that all warnings as to the defendant’s constitutional rights were given, that the defendant did understand the meaning of what was said and knowingly gave up such rights, and that the statement was voluntary, then you may consider it as evidence. If so, then you must apply the general rules for testing the believability of witnesses and decide what weight, if any, you will give to all or part of such evidence. If you fail to find any one of the conditions that I have just described, you must disregard the statement entirely and give it no consideration in reaching your verdict except for purposes of impeachment.

Byrd contends that, because he did not testify at trial, the inclusion of the phrase “except for purposes of impeachment” was harmful error because it allowed the jury to consider the statement even if the jury found that his statement was obtained in violation of his Miranda rights. Byrd thus contends that his trial counsel was ineffective for failing to object to this portion of the charge.

“The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.” (Citation and punctuation omitted.) Griffiths v. State, 283 Ga. App. 176, 180-181 (3) (641 SE2d 169) (2006). Here, the trial court specifically instructed the jury to disregard Byrd’s statement and to limit it for the purposes of impeachment if the jury found that the statement was obtained in violation of his Miranda rights. With regard to impeachment, the trial court instructed the jury that “[a] witness may be impeached by disproving the facts to which the witness testified ... or by proof of contradictory statements previously made by the witness about matters relevant to the witness’s testimony and to the case.” Byrd did not testify at trial nor did he present any witnesses, so there was obviously no testimony to impeach.

As the jury was instructed that the law on impeachment only applies to witnesses who testify at trial, any error committed in the portion of the charge that would have limited Byrd’s statement “for purposes of impeachment” was harmless. See Biswas v. State, 255 Ga. App. 339, 343-344 (3) (565 SE2d 531) (2002) (any error in giving a charge on impeachment was harmless where defendant did not testify at trial and there was no testimony to be impeached). When considering the trial court’s charge as a whole, we find that the jury would have understood that it could only consider Byrd’s statement if the jury found that the protections of Miranda were satisfied. Accordingly, Byrd has failed to show the prejudice prong of this ineffective assistance claim.

(c) At trial, the State called one of the victims, Shantoria, to testify about what she saw and heard when Byrd and his co-defendants broke into her home. On cross-examination, defense counsel attempted to place her veracity in issue by pointing out the favorable disposition she had received on a recent possession of marijuana charge, her jail visit with one of the co-defendants during the pendency of the case, and certain inconsistencies in her trial testimony and her prior statement to the police.

Thereafter, the State called the officer who had obtained Shantoria’s statement for the purpose of eliciting testimony regarding her prior consistent statement. Byrd’s trial counsel objected on the grounds that such testimony was cumulative and would constitute improper bolstering of Shantoria’s trial testimony. Without specifically ruling on the objection, the trial court allowed the officer to refresh his recollection by reviewing Shantoria’s written statement and then testify regarding her prior consistent statement. On appeal, Byrd argues that counsel was ineffective for failing to pursue his objection to this testimony. We disagree.

Under the former version of Georgia’s Evidence Code,

a witness’s prior consistent statement is admissible if the veracity of the witness’s trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination. [] A witness’s veracity is placed in issue if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. For the prior consistent statement to be admissible, it must also predate the alleged fabrication, improper influence, or improper motive.

(Citation and punctuation omitted.) Williams v. State, 292 Ga. 844, 849-850 (3) (c) (742 SE2d 445) (2013).

Although Byrd contends otherwise, trial counsel’s line of questioning raised the implication that Shantoria’s trial testimony was recently fabricated, and that she might have had an improper purpose or motive for testifying as she did at trial. As the testimony concerning Shantoria’s prior consistent statement was properly admitted, Byrd has failed to show deficient performance on the part of trial counsel. See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance”) (citation omitted).

(d) At trial, the State recalled Shantoria to the witness stand in rebuttal to defense counsel’s cross-examination concerning her recent jail visit with the co-defendant, Demond Dennis. The prosecutor asked Shantoria what the co-defendant had told her during the visit, and in response, she stated that “[h]e just apologized.” Trial counsel immediately objected to this response on the grounds of hearsay, and the jury was excused from the courtroom. After the prosecutor and trial counsel presented argument to the court, Shantoria was excused from the witness stand, and the jury was brought back in. No ruling on the objection was made in the presence of the jury, and no curative instruction was given. On appeal, Byrd argues that trial counsel was ineffective for failing to seek any remedy for the introduction of this hearsay statement.

We note that Shantoria’s statement does not specify what the co-defendant was apologizing for, but in light of the context of the prosecutor’s line of questioning, a strong inference could be made that he was apologizing for his role in participating in the crimes for which he was arrested. Although the co-defendant’s apology to Shantoria did not make any specific reference to Byrd, it indirectly implicated Byrd because the evidence showed that Byrd and his co-defendants had participated in the crimes together. Nevertheless, we find that the admission of the statement does not warrant reversal.

The admission of hearsay is harmless when the inadmissible testimony is cumulative of legally admissible evidence of the same fact, or where it could not have contributed to the verdict in light of all of the other evidence introduced at trial. See Fisher v. State, 295 Ga. App. 501, 504 (1) (672 SE2d 476) (2009) (error in admitting statements of defendant’s co-indictee which implicated the defendant was harmless where defendant was identified as the perpetrator by two witnesses and had admitted to a third witness that he intended to commit the crime).

Here, there was overwhelming direct and circumstantial evidence of Byrd’s guilt. Within minutes of the incident, the police encountered Byrd and his co-defendants leaving the area where the home invasion had occurred; they led the police on a high-speed chase before wrecking their vehicle and fleeing on foot; they were apprehended in the same area shortly thereafter; and bandanas, bags of marijuana, .38 caliber ammunition, and the purse that had been taken during the armed robbery were all found in their vehicle. Furthermore, Byrd admitted to the police that he was involved in the home invasion.

As it is highly improbable that the admission of Shantoria’s objectionable testimony contributed to the guilty verdict, we find that trial counsel’s failure to move for a mistrial or request a curative instruction was harmless. See generally Watkins v. State, 289 Ga. 359, 362-363 (3) (b) (711 SE2d 655) (2011). The hearsay statement was relatively benign, considering the strength of the State’s case and Byrd’s own confession to the police. Byrd has failed to show that had trial counsel moved for a mistrial or requested a curative instruction that there is a reasonable probability that the trial court would have granted a mistrial or that the outcome of the trial otherwise would have been different. Id. Therefore, Byrd has failed to show that he was prejudiced by trial counsel’s performance.

Decided November 20, 2013.

Lynn M. Kleinrock, for appellant.

Daniel J. Porter, District Attorney, Lindsay B. Gardner, Assistant District Attorney, for appellee.

(e) Lastly, Byrd asserts that this Court should consider the combined prejudicial effect of trial counsel’s deficiencies. In Division 2 (a) of this opinion, we reverse Byrd’s conviction for aggravated assault in Count 3 of the indictment based on ineffective assistance. Applying the standard set forth in Strickland, supra, even if counsel were deficient in certain other respects, we conclude that the collective effect of the deficiencies would not in reasonable probability have changed the outcome of the trial with regard to the remaining counts. See Bulloch v. State, 293 Ga. 179, 183-184 (2) (744 SE2d 763) (2013); Toomer v. State, 292 Ga. 49, 59 (4) (734 SE2d 333) (2012).

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Miller, J., concur.

       The trial court gave a separate instruction to the jury regarding the aggravated assault charge in Count 4, which alleged that Byrd assaulted Lo, with the intent to rob, by pointing the handgun at him.

       An issue of a lesser included offense, such as battery, may arise where the use of a deadly weapon is not necessarily proved, or where the manner of use and character of the weapon is in question. Scott v. State, 208 Ga. App. 561, 561 (1) (430 SE2d 879) (1993).

       Immediately after the incident, Lo stated to the police that he was hit in the lip with a gun. At trial, however, Lo testified that he was struck in the back of his head with a hand or a fist, and he did not recall being hit with a gun. Although this would normally be a credibility issue, we note that there was no evidence in the record that Lo suffered any injury.

       Trial counsel elicited testimony from Shantoria during cross-examination that one of Byrd’s co-defendants, Demond Dennis, was her second cousin.

       As this case was tried before January 1,2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101. As to the admissibility of prior consistent statements under the new Evidence Code, see OCGA §§ 24-6-613 (c) and 24-8-801 (d) (1) (A).

       We have held that “[w]here the testimony presented in the co-defendant’s confession is supported by the complaining defendant’s own confession, there is no violation of appellant’s right of confrontation.” (Citation and punctuation omitted.) Moore v. State, 176 Ga. App. 882, 885 (3) (339 SE2d 271) (1985).