text:
    A13A0910.
    THE STATE v. DAGUE.
    (750 SE2d 476)
   Phipps, Chief Judge.

Bryan Coleman Dague was indicted for committing two offenses against P C.: (i) child molestation, by touching her vaginal area; and (ii) aggravated child molestation, by placing his mouth on the child’s sex organ. At trial, the state invoked the Child Hearsay Statute and introduced evidence of P. C.’s out-of-court accusations about Dague, and a jury found him guilty as charged. Judgment of conviction was entered thereon.

The trial court granted Dague’s motion for new trial, because it determined that the child hearsay had been admitted in violation of Dague’s Sixth Amendment right to confront P. C. The state appeals the grant of a new trial. Because the record shows that Dague waived his right to confront P. C., such that his Sixth Amendment right to confront his accuser was not violated, we reverse.

Evidence at trial showed the following. P. C.’s mother made arrangements with her cousin for P. C. to live during the 2009-2010 school year at that cousin’s residence. Accordingly, through most of her kindergarten year, five-year-old P. C. lived with that cousin, the cousin’s two daughters, and the cousin’s husband. In November 2009, Dague, the 18-year-old son of the husband, moved into the residence. P. C. and the younger daughter shared a bedroom; initially, the girls slept in bunk beds with P. C. on the lower one; when the beds were later disassembled, the girls slept in them as twin beds. Dague and the older daughter each had their own bedroom. In May 2010, P. C. moved back home with her mother.

P. C.’s mother testified that, one morning the following February (2011), she and P. C. talked with the cousin by phone. After the phone call, P. C. told her mother that when she was living at the cousin’s residence, Dague often came into her bedroom and touched her vaginal area. P. C. told her mother that, during those times, she would pretend to be asleep.

On February 7,2011, P. C.’s mother reported P. C.’s allegations to police. A psychotherapist who specialized in sexual abuse conducted a forensic interview of P. C. The interview was audio-video recorded, and the recording was authenticated at trial by the psychotherapist, then played for the jury. During the interview, six-year-old P. C. said that on more than one occasion, Dague had come into her bedroom, approached her as she lay on her bed, pulled down her panties, and put his tongue on her vaginal area. P. C. also said that on more than one occasion, Dague had come into her bedroom, approached her as she lay in her bed, pulled down her panties, and touched her vaginal area with his fingers and/or his penis. P. C. described that Dague had sometimes brought with him a “bottle” and used his finger to transfer some of its contents — which she described was like hair grease or hair conditioner — onto her vaginal area before touching that area with his penis.

P. C. was examined in February 2011 by a nurse practitioner, who was qualified at trial to testify as an expert in the area of child sexual assault. The nurse practitioner opined that P. C.’s vaginal area was “normal.” She explained, however, that “a normal exam is completely consistent with [P. C.’s] disclosure” because, given the amount of time that had passed between the reported sexual incidents and the date of the examination, any touching of the vaginal area would likely not have left any marks, and any cuts to that area would likely have healed.

A police detective assigned to the case interviewed Dague on February 15, 2011. The interview was audio-video recorded, and played for the jury. During the interview, 20-year-old Dague recounted moving into his father’s residence in November 2009, when he was nearly 19 years old, and living there until the summer of 2010. Dague recalled P. C. living there, too, but denied ever inappropriately touching her.

Dague took the stand and denied P. C.’s allegations, as well as the acts described in both counts of the indictment.

P. C. was seven years old at the time of the trial. She was brought to the courthouse before the trial began, but neither side called her to testify.

1. Although its sufficiency is not specifically contested in this appeal, the evidence presented at trial and summarized above, when viewed in the light most favorable to the prosecution, was sufficient to authorize a rational trier of fact to find Dague guilty beyond a reasonable doubt of the crimes for which he was convicted.

2. We turn to the state’s contention that Dague was not entitled to a new trial.

Dague claimed on motion for new trial that, pursuant to Hatley v. State which case was decided after he was convicted in 2011, his Sixth Amendment right to confront P. C. had been violated. Consequently, Dague argued, the trial court had erred in admitting evidence of P. C.’s out-of-court statements to her mother and to the forensic interviewer; that his trial counsel had rendered ineffective assistance by not cross-examining P. C. and by not pursuing a strategy that “[Dague’s] father might have been the one” who molested P. C.; and that the trial court had erred in denying his motion for a directed verdict of acquittal.

After a hearing on the motion for $ew trial, the trial court entered an order on October 19, 2012. Therein, it determined that, under the pipeline rule, Hatley was applicable and then ruled:

The objection to the constitutionality of the child hearsay statute was properly preserved for appeal by trial counsel’s Motion in Limine regarding the same. While defendant clearly was on notice of the State’s intent to introduce the child hearsay, and trial counsel waived the opportunity to have the child testify, he did so in light of a now-overturned procedure. The Court cannot find a valid waiver of defendant’s rights under the Confrontation Clause. There exists insufficient properly admitted, evidence to sustain the jury’s verdict. Defendant’s Motion for New Trial is granted.

On appeal, the state challenges the grant of a new trial to Dague, which was based on the trial court’s finding of a violation of the Confrontation Clause. The state claims that defense counsel not only failed to object on that ground, but also conceded that the defense had deliberately waived confronting P. C. at the trial for strategic reasons. For reasons that follow, we agree with the state that Dague was not entitled to a new trial.

The Child Hearsay Statute in effect at the time of Dague’s September 2011 trial provided:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

In Sosebee v. State, the Supreme Court of Georgia construed that statutory language so as to require the following:

[I]f the prosecution invokes the Child Hearsay Statute to introduce out-of-court declarations by the alleged victim, the court shall,.. .at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked.

That way, the Sosebee Court explained, jurors would not “resent the defendant for forcing the child to take the stand and undergo cross-examination.”

But Sosebee and its progeny were recently overruled in Hatley v. State. The appellant in Hatley was convicted of committing aggravated child molestation, aggravated sodomy, and two counts of sexual battery against C. C., a person under age sixteen. In the underlying trial, C. C.’s mother, police officers, and a forensic interviewer were allowed to testify about what C. C. had told them. C. C. was in the courthouse and available to testify, but was not called to the witness stand by the state. Hence, on appeal, the appellant in Hatley contended that the trial court had erred by failing to declare the Child Hearsay Statute unconstitutional, and to require the state to present C. C. as a witness. The Supreme Court of Georgia held in Hatley that “the Child Hearsay Statute, as construed by this Court in Sosebee,... and in other appellate cases, cannot pass constitutional muster because it fails to put the onus on the prosecution to put the child victim on the witness stand to confront the defendant,” in violation of the Confrontation Clause.

However, the Hatley Court went on to explain that the statute could survive a Confrontation Clause attack provided that

the prosecution... notifies] the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and... give[s] the defendant an opportunity to raise a Confrontation Clause objection. If the defendant obj ects, and the State wishes to introduce hearsay statements under OCGA § 24-3-16, the State must present the child witness at trial; if the defendant does not obj ect, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability. The trial court should take reasonable steps to ascertain, and put on the record, whether the defendant waives his right to confront the child witness.

Accordingly, this court, citing Bunn v. State, recognized in Walker v. State:

[T]o comport with the Confrontation Clause, [former] OÓGA § 24-3-16 requires that the child whose statements are at issue not merely be “available to testify” but actually testify at trial, unless the defendant forfeits or waives such testimony, andrequir[es] pretrial notice of the [s]tate’s intent to use child hearsay statements to allow the defendant to exercise that right.

In Walker, Walker argued that the trial court had improperly admitted certain child hearsay in violation of his Sixth Amendment right to confront one of his accusers. But this court found that argument unavailing, concluding:

Not only did Walker fail to object on Sixth Amendment grounds at trial, but he affirmatively declined the opportunity to question the victim before the jury, thereby waiving his right to confront the child witness. Walker asserts that any waiver was induced by the Sosebee line of cases. In essence, he argues that under Sosebee, the admission of child hearsay did not violate his right to confront witnesses, so he did not raise a Confrontation Clause objection. But Walker was given the opportunity to question the child and chose not to. Under these circumstances, it is clear that Walker waived his right to confront the child witness.

The record in the instant case convinces us that Dague waived his right to confront P. C. Prior to trial, Dague filed a motion in limine, stating that he believed that the state was planning, pursuant to OCGA § 24-3-16, to introduce evidence of P. C.’s out-of-court statements. Dague pointed out that the trial court had not yet made a determination, as statutorily required, that “the child is available to testify in the proceedings and . . . that the circumstances of the statement provide sufficient indicia of reliability.” Additionally, in a separate paragraph within that motion, Dague made the claim: “OCGA § 24-3-16 is unconstitutional and infringes upon Defendant’s Sixth Amendment right to confront witnesses.” Thereafter, in another motion, Dague requested a pretrial hearing to determine whether there was sufficient indicia of reliability to render any such statements admissible under OCGA § 24-3-16. At a pretrial hearing, Dague argued only that the circumstances of P. C.’s out-of-court statements failed to provide sufficient indicia of reliability under Gregg v. State At the end of that hearing, the trial court ruled from the bench that P. C.’s statements to her mother and to the forensic interviewer were admissible.

But “[e]ven if OCGA § 24-3-16 authorizes the admission of such evidence as an evidentiary matter, it may still be inadmissible as a violation of the accused’s rights under the Confrontation Clause.” Accordingly, “[t]here is a distinct difference between a challenge to the admission of evidence based upon the Confrontation Clause and that based upon an exception to the hearsay rule.”

Here, Dague pursued pretrial (unsuccessfully) his argument that P. C.’s out-of-court statements failed to satisfy the reliability requirement of the Child Hearsay Statute. Although Dague included in his motion in limine a conclusory claim that the Child Hearsay Statute was unconstitutional as violative of his right to confront witnesses, he thereafter neither advanced any argument in support thereof, nor did he elicit any distinct ruling from the trial court on whether the Child Hearsay Statute was unconstitutional. And by further failing to lodge at trial any Confrontation Clause objection, Dague waived the issue. Dague did not, for example, object on the ground that, unless P. C. took the stand, the admission of her out-of-court statements would violate his Confrontation Clause rights; Dague did not object to the procedure established in Sosebee — “the court shall, at the request of either party, cause the alleged victim to take the stand,” which procedure was disapproved in Hatley

Rather, as was confirmed by D ague’s trial lawyer when he took the stand at the hearing on Dague’s motion for new trial, the defense had chosen, as a matter of trial strategy, not to confront seven-year-old P. C. in front of the jury. The lawyer recounted that he had been concerned about the reliability of P. C.’s out-of-court statements, and thus had sought before trial to exclude the child’s outcry to her mother and the child’s disclosures to the forensic interviewer. But when that effort failed, the lawyer testified, “as a matter of trial strategy our focus was more on the mother and the circumstances surrounding the child’s outcry than upon placing the child on the stand.” As the lawyer revealed:

My concern —• I’ve •— I’ve had to put children on the stand before, especially in Juvenile Court, and my experience is that’s a very difficult thing to do. It’s fraught with peril. And I thought that — I mean, I wanted to try and keep it out, fought to keep it out. But since [the trial court] ruled it was coming in, I felt it was enough to work with on the child statement without muddying the waters and risking putting her on the stand.

As the lawyer recalled:

[P. C.] was here at the courthouse. I spoke with her very briefly. I can’t remember if it was outside or in the courtroom. [The prosecutor] had her in a room down the hall. And I know that they brought her up to the witness stand and—but I did not go into any kind of lengthy questioning of the child.

The lawyer had calculated that cross-examining the child was

somewhat risky. And . . . our better — the strategy at the time was to try to go after the mother and the family circumstances. My concern was, is that I didn’t want the child reaffirming on the stand what she says in the forensic interviews. I felt like there was enough to work with in the interviews that it gave me some openings.

The lawyer also had a “concern at the time ... I didn’t want to come across as beating the child up.” Furthermore, the lawyer recounted, he had examined the discovery from the state and had discerned no material variations amongst P. C.’s allegations. Had there been, he added, “that probably would have changed my strategy.”

The record shows that any pretrial objection Dague may have had that the Child Hearsay Statute itself was unconstitutional as violative of his right to confront was abandoned. Furthermore, not only did Dague fail to raise a Confrontation Clause objection at trial, he deliberately declined the opportunity to question P. C. before the jury, “thereby waiving his right to confront the child witness.” Contrary to Dague’s claim on motion for new trial, Hatley did not apply retroactively such that admission of P. C.’s out-of-court statements was improper. The trial court thus erred in granting Dague a new trial, based on its determination that child hearsay was admitted in evidence in violation of Dague’s Sixth Amendment right to confront the child.

3. Finally, we note that Dague asserts in his brief that “the grounds in his motion for new trial are interwoven into the trial court’s analysis and consequent ruling with its findings of fact and conclusions at law.” Dague further states that the trial court’s order granting his motion for new trial was “silent as to not excluding any of the said grounds as its basis for same.” Dague does not go so far, however, as to request remand for an express ruling from the trial court. And indeed, remand is unwarranted.

(a) Contrary to Dague’s claim on motion for new trial, the trial court committed no error in admitting evidence of P. C.’s out-of-court statements to her mother and to the forensic interviewer. Hence, Dague made no showing that the jury’s verdict was based on improperly admitted evidence (as the order granting new trial implies).

(b) Thus, contrary to Dague’s claim on motion for new trial, the trial court did not err by denying his motion for a directed verdict of acquittal.

(c) Dague failed to show on motion for new trial that his trial counsel rendered ineffective assistance of trial counsel. Dague did not call P. C. as a witness at the hearing on motion for new trial; nor did Dague demonstrate, as he argued, that the trial strategy employed was unreasonable.

Decided November 18, 2013

Reconsideration denied December 3, 2013.

Garry T. Moss, District Attorney, Shannon G. Wallace, Cliff Head, Holly L. Varner, Assistant District Attorneys, for appellant.

Patrick G. Longhi, for appellee.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

       See OCGA §§ 5-7-1 (a) (8); 5-7-2 (c); State v. Caffee, 291 Ga. 31, 33 (2) (728 SE2d 171) (2012) (“In 2011, the Georgia General Assembly amended OCGA § 5-7-2 to eliminate the certificate requirement when the State appeals the superior court’s grant of a new trial in favor of a criminal defendant.”).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (instructing that, on review of the sufficiency of the evidence to support a criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”) (emphasis in original); Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.”) (citation and punctuation omitted).

       290 Ga. 480 (722 SE2d 67) (2012).

       See Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992) (adopting the pipeline rule, such that “a new rule of criminal procedure ... will be applied to all cases then on direct review or not yet final”) (footnote omitted).

       Because the trial court granted Dague’s motion for new trial on a special ground instead of the general grounds, we review that ruling de novo. See State v. James, 292 Ga. 440, 441 (1) (738 SE2d 601) (2013) (“While the first grant of a new trial on the general grounds is reviewed for abuse of discretion (see OCGA § 5-5-50), we review de novo the trial court’s first grant of a new trial on a special ground involving a question of law.”) (citations omitted); O’Neal v. State, 285 Ga. 361 (677 SE2d 90) (2009).

       OCGA § 24-3-16 (2011). The similar version of the Child Hearsay Statute, adopted as part of the new Georgia Evidence Code, is codified at OCGA § 24-8-820. See Walker v. State, 322 Ga. App. 158, 160 (1) (744 SE2d 349) (2013). However, because Dague’s trial occurred before January 1,2013, the former version of the Child Hearsay Statute applies in this case. See In the Interest ofM. C., 322 Ga. App. 239, 242 (3) (744 SE2d 436) (2013).

       257 Ga. 298 (357 SE2d 562) (1987).

       Id. at 299 (emphasis supplied); see Hatley, supra at 482 (I) (explaining holding in Sosebee, supra).

        Sosebee, supra; see Hatley, supra (explaining rationale underlying Sosebee, supra).

       Supra at 483 (I).

       Id. at 480.

       Id. at 481.

       Id. at 481-482.

       Id. at 482.

       Id. at 483.

       Id. at 483-484 (I).

       291 Ga. 183,189 (2), n. 4(728 SE2d 569) (2012) (explaining the holding in Hatley, supra).

       Supra.

       Id. at 160 (1) (emphasis supplied).

       Id.

       Id. at 161 (1) (citations and punctuation omitted).

       OCGA § 24-3-16 (2011).

       201 Ga.App. 238,240-241 (3) (b) (411 SE2d65) (1991) (setting out factors which the court may consider when considering whether the circumstances of the statement demonstrate sufficient indicia of reliability).

        Bunn, supra (citations omitted).

        Johnson v. State, 294 Ga. 86, 88 (2) (750 SE2d 347) (2013) (punctuation omitted), quoting Walton v. State, 278 Ga. 432, 434 (1) (603 SE2d 263) (2004).

       See generally In re D. H., 283 Ga. 556, 557-558 (3) (663 SE2d 139) (2008) (“To properly raise a constitutional challenge to a statute, the party attacking the statute must show three things: (1) [t]he statute or the particular part or parts of the statute which the party would challenge must he stated or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision.”) (punctuation and footnotes omitted); see Allen v. State, 263 Ga. 60 (2) (428 SE2d 73) (1993) (noting that the constitutionality of the Child Hearsay Statute, as codified at OCGA § 24-3-16, has been “repeatedly upheld”).

       See generally Nathans v. Diamond, 282 Ga. 804, 808 (2) (654 SE2d 121) (2007) (“[B] ecause neither the trial court’s discussion [in the transcript] nor its written order mention the... constitutional issues, it does not appear that those... issues were distinctly ruled on by the trial court. Accordingly, those issues are not preserved for appeal.”), cited in Jenkins v. State, 284 Ga. 642, 644 (1), n. 1 (670 SE2d 425) (2008); Dye v. State, 205 Ga. App. 781 (1) (423 SE2d 713) (1992); Buckler v. DeKalb County Board of Commrs., 299 Ga. App. 465, 469 (3) (683 SE2d 22) (2009) (determining that appellants waived any alleged constitutional error by failing to elicit a ruling by the trial court on constitutional issue).

       See Hatley, supra; Bunn, supra; Walker, supra; see also Johnson, supra (explaining the “distinct difference” between Confrontation Clause and other challenges to hearsay); Battles v. State, 290 Ga. 226, 232 (5) (719 SE2d 423) (2011) (explaining that, generally, “[although a party does not waive an error by failing to object to admission of evidence after a motion in limine is denied, this rule cannot be invoked to preserve a different, [even] if perhaps related, error”) (citations omitted; emphasis supplied); Ellis v. State, 287 Ga. 170, 172 (2) (695 SE2d 35) (2010) (explaining that “[o]nce the trial court has addressed a party’s motion or objection and has issued a ruling, the party adversely affected need not then further object or except to the trial court’s ruling in order to preserve the issue for appeal”) (punctuation omitted; emphasis supplied).

        Sosebee, supra at 299.

       See generally Taylor, supra at 586 (3) (“Application of the [pipeline] rule to a pending case will, of course, depend on the preservation of the issue for appellate review.”).

       See Battles, supra; In re D. H., supra; Taylor, supra; Buckler, supra; Dye, supra.

        Walker, supra (citation and punctuation omitted).

       See McClure v. Kemp, 285 Ga. 801, 802-803 (684 SE2d 255) (2009) (reiterating that application of the pipeline rule so as to analyze a claim of error under a new procedural rule “is dependent upon whether the claim was preserved for appellate review”), citing Taylor, supra. Given our holding, we need not reach which of P. C.’s out-of-court statements, if any, were nontestimonial. See generally Hatley, supra at 482-485 (I), (II) (discussing whether statements are nontestimonial or testimonial).

       See Bunn, supra (OCGA § 24-3-16 requires that the child actually testify, “unless the defendant forfeits or waives such testimony’); Walker, supra (where defendant affirmatively declined the opportunity to question the victim before the jury, defendant waived his right to confront the child witness).

       See Division 2, supra.

       See Division 1, supra; Joyner v. State, 280 Ga. 37, 38 (1) (622 SE2d 319) (2005) (“The test set forth in Jackson v. Virginia, [supra] is the proper standard of review when the sufficiency of the evidence is challenged via a motion for directed verdict of acquittal.”) (citation omitted); see also State v. Jackson, 294 Ga. 9 (748 SE2d 902) (2013) (reversing grant of new trial on the ground that the evidence was legally insufficient under Jackson v. Virginia, supra). Cf. White v. State, 293 Ga. 523, 524-526 (2) (753 SE2d 115) (2013) (vacating denial of the motion for new trial, which motion raised the general grounds, and remanding for trial court to apply proper standard to the general grounds and to exercise its discretion and sit as a “thirteenth juror”).

       See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984); see also Lewis v. State, 291 Ga. 273, 282 (7) (731 SE2d 51) (2012) (reiterating that a remand to the trial court for an evidentiary hearing on an ineffectiveness claim is not necessary where “we can determine from the record that the two-prong test for ineffectiveness cannot be met”) (citation and punctuation omitted).

       See Welch v. State, 318 Ga. App. 202, 206-207 (2) (733 SE2d 482) (2012) (rejecting claim that trial counsel was ineffective for failing to question at trial child molestation victim, where child did not testify at the new trial hearing and thus there was no showing whether her trial testimony would have been favorable to defendant, and where counsel’s decision not to call child victim at trial was reasonable strategy). Only Dague’s trial lawyer testified at the hearing on motion for new trial.

       See Jones v. State, 282 Ga. 306, 308 (6) (647 SE2d 576) (2007) (“It cannot be said that counsel was ineffective simply because another attorney might have placed more or a different emphasis on the evidence.”) (citation omitted); Allen, supra at 62 (4) (“Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.”) (citation omitted); Welch, supra; see generally Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003) (noting that “in making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and that only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law”) (punctuation and footnotes omitted).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A13A0935.
    HORTON et al. v. DENNIS et al.
    (750 SE2d 493)
   ELLINGTON, Presiding Judge.

Raford and Virginia Horton filed this personal injury action in the Superior Court of Telfair County against Joseph Dennis, The Putnam Group, LLC, Horton Iron Works, LLC, and Horton Iron Works’ liability insurer (collectively, “the appellees”). On the eve of trial, the Hortons added a claim for attorney fees under OCGA § 13-6-11, alleging that, by denying liability until the eve of trial and then stipulating to liability and going to trial on damages only, the appellees had been stubbornly litigious and caused them unnecessary trouble and expense. The appellees moved for judgment as a matter of law on the Hortons’ attorney fee claim. After a hearing, the trial court granted the appellees’ motion, and the Hortons appeal. For the reasons explained below, we affirm.

Viewed in the light most favorable to the Hortons as the nonmovants, the record shows the following. On October 27, 2008, Mr. Horton was severely injured when a tractor-trailer operated by Joseph Dennis (an employee of Horton Iron Works, LLC and under the interstate motor carrier authority of The Putnam Group, LLC) crossed the center line of Georgia Highway 31 near McRae and crashed into Mr. Horton’s truck. In addition to injuries requiring multiple joint replacements, debridements, and other surgeries, the Hortons claim that, as a result of the wreck, Mr. Horton also suffered a mild traumatic brain injury, which impairs his memory and mental function, and damage to his sacral or pudendal nerves, which results in permanent loss of erectile function.

On June 8, 2009, the Hortons filed suit for Mr. Horton’s personal injury and Mrs. Horton’s loss of consortium. During discovery, the appellees interviewed and deposed witnesses to determine whether Mr. Horton had been at fault in causing the wreck. In addition, the appellees explored during discovery the nature and extent of Mr. Horton’s alleged damages. Among other witnesses, the Hortons took the depositions for use at trial of two of his treating physicians: Alan Harben, M.D., a rehabilitation specialist, who opined that Mr. Horton suffered a traumatic brain injury and had some resulting cognitive impairment; and Walter Wilifong, M.D., a urologist, who opined that Mr. Horton suffered a pelvic nerve injury which caused him to be impotent.

The appellees questioned Dr. Harben about the medical evidence linking the trauma from the accident to any cognitive impairment, and Dr. Harben answered that no intracranial bleeding or other physical signs of brain trauma were evident on brain scans that were done in the immediate aftermath of the wreck. The deposition of Dr. Harben also showed that his opinion that Mr. Horton was experiencing cognitive deficits was based largely on logic and memory tests; because Mr. Horton had not completed such tests before the wreck, Dr. Harben could not objectively compare Mr. Horton’s cognitive function before the wreck and after the wreck. Dr. Harben conceded that certain lesions and abnormalities detected in brain scans that were performed several months after the wreck could not reliably be attributed to the wreck and could have been age related (Mr. Horton was 60 years old at the time of the wreck and 62 at the time Dr. Harben tested his cognitive functions).

The appellees questioned Dr. Wilifong about the extent of Mr. Horton’s erectile dysfunction. Dr. Wilifong answered that his opinion that Mr. Horton suffered from erectile dysfunction was based on Mr. Horton’s statement that after the wreck he and his wife had sexual relations only once per month (compared to once or twice per week before the wreck) and that he had trouble having erections. Because pelvic crush injuries often cause impotence, Dr. Wilifong assumed that Mr. Horton’s erectile difficulties stemmed from the wreck, and he focused on treating Mr. Horton’s self-reported erectile dysfunction and not on finding its cause. Dr. Wilifong conceded that Mr. Horton’s sexual problems could be caused by something other than a nerve injury. In addition, Dr. Wilifong conceded that, if Mr. Horton were able to get a normal erection at all, even if less frequently, it would show that his pelvic nerves were intact, but Dr. Wilifong could not recall ever asking Mr. Horton that question.

Just before trial was scheduled to commence on September 26, 2011, the appellees opted to stipulate to “liability,” that is, their “fault for how this accident happened” and “responsibility for the accident.” The appellees also conceded that the wreck proximately caused Mr. Horton’s crushed pelvis, injuries to his left knee and left hip, and foot drop. The appellees contested, however, that the wreck was the proximate cause of Mr. Horton’s alleged traumatic brain injury or his alleged pelvic nerve damage and permanent loss of erectile function.

With the trial court’s permission, the Hortons amended their complaint to add a claim for attorney fees under OCGA § 13-6-11, alleging that the appellees had been stubbornly litigious and had caused the Hortons unnecessary trouble and expense. Specifically, the Hortons alleged that “[n]o bona fide controversy or dispute [had] ever existed in this case as to the fault of... Dennis in causing [the] collision” and as to the other appellees’ liability for Dennis’s actions. The Hortons alleged that the appellees were stubbornly litigious from the time they answered the Hortons’ complaint, denying any liability, until September 26, 2011, when the appellees admitted in a written stipulation that Dennis was at fault for negligently causing the collision. The trial court bifurcated the trial, reserving the issue of attorney fees to the second phase.

At the conclusion of the first phase of the trial, the jury returned a verdict in favor of the Hortons as follows: $1,252,804 for Mr. Horton’s medical bills, $184,010 for past and future lost income, $1,150,000 for past and future mental and physical pain and suffering, and $250,000 for Mrs. Horton’s loss of consortium. The trial court then took up the appellees’ pending motion for judgment as a matter of law on the Hortons’ claim for attorney fees. At the hearing, the Hortons stipulated that there had been “a bona fide controversy as to some of [Mr. Horton’s] damages.” The court noted that the parties agreed that bad faith was not an issue. The trial court concluded that a bona fide controversy had existed at least regarding the issue of whether Mr. Horton had a traumatic brain injury and erectile dysfunction that were proximately caused by the appellees’ admitted negligence. In addition, the court found that the amount of damages for the Hortons’ losses had always been in dispute and that the appellees had not “displayed a ‘so sue me’ attitude that has been present in several cases where attorney fees pursuant to OCGA § 13-6-11 were allowed.” Based on this, the trial court found that it would be improper to submit the Hortons’ attorney fee claim to a jury and granted the appellees’ motion for judgment as a matter of law on that claim.

The Hortons contend that the trial court erred in finding as a matter of law that a bona fide controversy existed on proximate cause. Further, the Hortons contend that, even if there was a dispute on proximate cause as to some of the Hortons’ damages, the appellees’ denial of liability through two years of litigation was not justified.

“Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” (Citation omitted.) Moon v. Moon, 277 Ga. 375, 379 (6) (589 SE2d 76) (2003). See OCGA § 13-6-11 (“The expenses of litigation generally shall not be allowed as a part of the damages [.]”). The Supreme Court of Georgia reminds our courts to be mindful

of the provision of our Constitution that “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const, of 1983, Art. I, Sec. I, Par. XII. This is a privilege granted to the defendant as well as the plaintiff. Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.

(Citation and punctuation omitted.) Anderson v. Cayes, 278 Ga. App. 592, 595 (630 SE2d 441) (2006). Further, “[s]ince any... statute [that provides for the award of attorney fees] is in derogation of common law, ... it must be strictly construed against the award of such damages.” (Citations omitted.) VSI Enterprises v. Edwards, 238 Ga. App. 369, 375 (2) (518 SE2d 765) (1999).

One such statutory provision is OCGA § 13-6-11, which authorizes the finder of fact to make an award of attorney fees and other expenses of litigation where (1) the plaintiff specially pleads and prays for such an award, and (2) the finder of fact finds that the defendant acted in bad faith in the underlying transaction or that, after the transaction on which the cause of action is predicated, the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense. When bad faith is not an issue, as in this case, and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, an award under OCGA § 13-6-11 is authorized where the evidence reveals that no bona fide controversy or genuine dispute existed —■ “whether of law or fact, on liability or amount of damages, or on any comparable issue.” (Citation and punctuation omitted.) Anderson v. Cayes, 278 Ga. App. at 593. “A mere refusal to pay a disputed claim is not the equivalent of stubborn litigiousness.” (Citations and punctuation omitted.) Dimambro Northend Assocs. v. Wil liams, 169 Ga. App. 219, 225 (6) (312 SE2d 386) (1983) (Where abona fide controversy existed, the evidence did not demand a verdict for either side, and there was no evidence of bad faith, stubborn litigiousness, or unnecessary trouble and expense, an award for attorney fees under OCGA § 13-6-11 was not. supported.).

Although whether a bona fide controversy exists is normally a question for the jury to decide, we have also repeatedly held that, if a bona fide controversy clearly exists between the parties, there is not “any evidence” to support an award based on stubborn litigiousness or the causing of unnecessary trouble and expense. Driggers v. Campbell, 247 Ga. App. 300, 304 (4) (543 SE2d 787) (2000). It follows that, where a bona fide controversy clearly exists between the parties, the defendant is entitled to judgment as a matter of law on the plaintiff’s claim for attorney fees and expenses of litigation based on stubborn litigiousness or the causing of unnecessary trouble and expense. Daniel v. Smith, 266 Ga. App. 637, 638 (1) (597 SE2d 432) (2004). Like an order granting a defendant’s motion for summary judgment or for a directed verdict, a determination that there is not any evidence to support an award under OCGA § 13-6-11, based on stubborn litigiousness or the causing of unnecessary trouble and expense, is subject to de novo review. Driggers v. Campbell, 247 Ga. App. at 304 (4); Webster v. Brown, 213 Ga. App. 845, 846-848 (2) (446 SE2d 522) (1994); Dimambro Northend Assocs. v. Williams, 169 Ga. App. at 224-225 (6).

In this case, the record shows that a bona fide controversy between the parties clearly existed throughout the litigation. As detailed above, the appellees cross-examined the Hortons’ experts and elicited testimony that was consistent with defending against Mr. Horton’s claims for damages flowing from his alleged brain injury and erectile dysfunction. The appellees also argued to the jury that the Hortons failed to prove that, as a result of the wreck, Mr. Horton suffered a traumatic brain injury or any pelvic nerve injury related to erectile dysfunction and, therefore, that the jury should not award damages based on those alleged injuries. Thus, the record contains evidence that the appellees genuinely disputed, in addition to the amount of the Hortons’ damages, the issue of the proximate cause of certain injuries that the Hortons attributed to the wreck. In addition, the record contains no evidence that the appellees forced the Hortons to resort to litigation or caused them unnecessary trouble and expense in the absence of such a dispute. We conclude, therefore, that the trial court did not err in refusing to submit the Hortons’ claim under OCGA § 13-6-11 to the jury. French v. Dilleshaw, 313 Ga. App. 834, 840 (2) (723 SE2d 64) (2012) (In a suit for the plaintiff’s lost earnings while his truck was disabled through the defendant’s negligence, the trial court sitting as the finder of fact erred in awarding the plaintiff attorney fees where there was a genuine dispute about the amount of damages, which reasonable people might have calculated in different ways.); Brito v. Gomez Law Group, 289 Ga. App. 625, 628-629 (2) (658 SE2d 178) (2008) (The trial court correctly granted the defendant’s motion for summary judgment on the plaintiff’s OCGA § 13-6-11 claim in their legal malpractice suit where a bona fide controversy clearly existed on the issues of whether the attorney breached a fiduciary duty and the amount of the plaintiffs’ damages.); Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 383-384 (3) (277 SE2d 753) (1981) (The trial court erred in submitting the plaintiff’s OCGA § 13-6-11 claim to the jury where a bona fide controversy clearly existed in light of conflicting expert testimony on the question whether the defendant negligently installed the plaintiff’s pool.).

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

Decided November 21, 2013

Reconsideration denied December 3, 2013

Caleb F. Walker, Katherine L. McArthur, for appellants.

McNatt, Greene & Peterson, Hugh B. McNatt, Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert P Marcovitch, John K. Train TV, Joshua S. Wood, Buckley Brown, Robert C. Semler, for appellees.

       A directed verdict is authorized “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” OCGA § 9-11-50 (a). “But where any evidence or some evidence exists to support a jury issue on the [nonmovantj’s claims, a directed verdict is improper.” (Citation and punctuation omitted.) Sun Nurseries v. Lake Erma, 316 Ga. App. 832, 835 (730 SE2d 556) (2012). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.” (Citations and punctuation omitted.) Robert E. Canty Bldg. Contractors v. Garrett Machine & Constr., 270 Ga. App. 871, 872 (1) (608 SE2d 280) (2004).

       In addition, when the court considered certain evidentiary matters during trial, the Hortons’ counsel expressly acknowledged on the record that the appellees were denying that some of Mr. Horton’s claimed injuries, “specifically areas of traumatic brain injury and damage to the pudendal nerve that allows sexual function,” were “connected” to the wreck.

       See Brown v. Baker, 197 Ga. App. 466, 469 (5) (398 SE2d 797) (1990) (physical precedent only) (A recovery of attorney fees has been authorized under OCGA § 13-6-11 for causing the plaintiff unnecessary trouble and expense where a defendant, who had no valid reason for refusing to pay a claim, adopted a “so sue me” attitude and insisted on going to trial.); Southern R. Co. v. Crowe, 186 Ga. App. 244, 248 (2) (366 SE2d 846) (1988) (accord); U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744, 746 (4) (320 SE2d 868) (1984) (accord).

        See Monroe v. Taylor, 259 Ga. App. 600, 601 (1) (577 SE2d 810) (2003) (“As a general rule, Georgia law does not provide for the ¿ward of attorney fees even to a prevailing party unless authorized by statute or by contract. When awarded by statute, such fees may be obtained only pursuant to the statute under which the action was brought and decided.”) (citation and punctuation omitted); Comment, Court Awarded Attorney’s Fees and Equal Access to the Courts, 122 U. Pa. L. Rev. 636, 637 (I) (A) (1974) (The so-called “American Rule” of attorney fees holds that “in the absence of contrary statutory authority a litigant must, with few exceptions, bear the single greatest cost of asserting his legal rights — his attorney’s fees — regardless of the outcome of his action.”) (footnote omitted).

       See Haarhoff v. Jefferson at Perimeter, L.P., 315 Ga. App. 271, 273 (2) (727 SE2d 140) (2012) (“Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated.”) (citation and punctuation omitted).

       See also White v. Scott, 284 Ga. App. 87, 90 (1) (643 SE2d 356) (2007) (“[T]he existence of a bona fide dispute and a reasonable defense at trial precludes the award of attorney fees and expenses of litigation under OCGA§ 13-6-11.”) (citation and punctuation omitted) (physical precedent only); Evans v. Willis, 212 Ga. App. 335, 338 (1) (c) (441 SE2d 770) (1994) (“[Mjere refusal to pay a disputed claim is not sufficient to award attorney fees on grounds of either stubborn litigiousness or causing unnecessary trouble and expense.”) (citation omitted).

       See also White v. Scott, 284 Ga. App. at 88 (1) (accord) (physical precedent only); Anderson v. Cayes, 278 Ga.App. at 593 (accord); Scully v. 1st Magnolia Homes, 274 Ga.App. 890 (619 SE2d 392) (2005) (accord); Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) (466 SE2d 27) (1995) (accord); Dimambro Northend Assocs. v. Williams, 169 Ga. App. at 224-225 (6) (accord).

       But see Covington Square Assocs. v. Ingles Markets, 287 Ga. 445, 446-448 (696 SE2d 649) (2010) (Although a defendant is entitled to judgment as a matter of law on a plaintiff’s claim for attorney fees and expenses of litigation under OCGA § 13-6-11 if there is no evidence to support the award, “a trial court is not authorized to grant summary judgment in favor of a claimant therefor” because, on summary judgment, the trial court is not a trier of fact.).

       Cf. Universal Underwriters Group v. Southern Guar. Ins. Co., 297 Ga. App. 587, 589 (677 SE2d 760) (2009) (Where the evidence at trial showed that the defendant had no defense to negligence or proximate cause, where the parties stipulated to the amount of the plaintiff’s damages, and where there was no legal basis for the apportionment of damages between the defendant and a third party, the defendant’s argument on appeal that a bona fide dispute had existed failed; the trial court did not err in submitting the plaintiff’s OCGA § 13-6-11 claim to the jury.); Southern R. Co. v. Crowe, 186 Ga. App. at 247 (2) (The trial court correctly submitted the plaintiff’s claim under OCGA § 13-6-11 to the jury where the record established that the defendant was merely stonewalling on the issue of its liability for the plaintiff’s losses from a fire sparked by its railroad to force the plaintiff to litigate.); Beaudry Ford v. Bonds, 139 Ga. App. 230, 231 (2) (228 SE2d 208) (1976) (The trial court correctly submitted the plaintiff’s claim under former Code Ann. § 20-1404 (current OCGA § 13-6-11) to the jury where the record established that the defendant intractably and baselessly denied liability in the plaintiff’s bailment action to force the plaintiff to litigate and only submitted evidence on the issue of the amount of the plaintiff’s damages in a belated effort to defeat the plaintiff’s claim for attorney fees and expenses.).


author: McMlLLIAN, Judge.

text:
    A13A1076.
    A13A1117.
    HERREN et al. v. SUCHER et al. HERREN et al. v. BARRIN INNOVATIONS, LLC.
    (750 SE2d 430)
   McMlLLIAN, Judge.

After suffering a stroke following an exercise session with a personal trainer at a gym, plaintiff/appellant Joey Herren filed a complaint, as several times amended and recast, seeking damages under theories of ordinary and gross negligence against various individuals and corporate entities, including the appellees in this case, gym owner Gregory Paul Sucher (“Sucher”), Nonstop Fitness Incorporated (“Nonstop”) and Club Management Services, Inc. d/b/a Nonstop Fitness Incorporated (“Club Management”) (collectively referred to as the “gym defendants”). Further, contending in their amended and recast complaints that the stroke Herren suffered was at least partly attributable to a non-FDA approved dietary supplement known as R.A.G.E. RV-5, plaintiffs also sought damages against the retail and wholesale distributors of the supplement, including appellee Barrin Innovations, LLC (“Barrin”).

The underlying facts are undisputed. Herren began to work with the personal trainer a few weeks after he joined the gym, and although Herren obtained R.A.G.E. from a former co-worker, he did not begin taking it until he started working with the trainer. Herren had taken R.A.G.E. and trained with the personal trainer on the day he suffered the stroke. In the complaint, plaintiffs allege that Herren suffered a stroke as a result of taking R.A.G.E. and over-exercising.

The gym defendants filed a motion for summary judgment, contending that Herren had signed three separate agreements containing exculpatory clauses waiving and releasing them from liability prior to beginning an exercise program with the personal trainer, and that, in any event, Herren also assumed the risk of his injuries. Plaintiffs responded, asserting among other things that the releases Herren signed did not bar his claims against the gym defendants for gross negligence, that a jury should decide whether Nonstop or Club Management was the proper entity to enter into the agreements, and that the agreements were unenforceable because the agreements Herren signed had not been submitted for state approval as required by OCGA § 10-1-393.2 of the Fair Business Practices Act. The trial court agreed with plaintiffs that the exculpatory clauses did not bar their claims against the gym defendants based on allegations of gross negligence, but found the exculpatory clauses were binding and enforceable on their claims of ordinary negligence. Herren filed a notice of appeal from this order as permitted by OCGA § 9-11-56 (h), and the appeal was docketed in this Court as Case No. A13A1076.

Barrin Innovations also moved for summary judgment, or alternatively, to dismiss. Among other things, Barrin contended that it was not a proper party to the proceedings because, pursuant to a purchase agreement, its assets and liabilities had been transferred to William Mellor and/or SWE, LLC (“Mellor”) prior to the time Herren was injured and plaintiffs filed their complaint. The trial court agreed that Mellor had assumed Barrin’s liabilities and thus was the proper party here, and accordingly granted summary judgment to Barrin. Plaintiffs’ appeal from that order was docketed in this Court as Case No. A13A1117. We consolidated these appeals for review, and now affirm in Case No. A13A1076 but reverse in Case No. A13A1117.

Case No. A13A1076

1. (a) Herren challenges the trial court’s grant of summary judgment to the gym defendants on his ordinary negligence claim, contending the exculpatory clauses were unenforceable for various reasons. We find these contentions to be unavailing.

We first set out the relevant parts of the three separate agreements Herren executed prior to beginning his exercise sessions with the personal trainer. Herren signed the first agreement (“Membership Agreement”) at the time he joined the gym. That agreement provided the following under a section entitled “WAIVER AND RELEASE LIABILITY’:

The Club urges you and all members to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise class. All exercises,... shall be at the member’s sole risk. Member understands that the agreement to use, or selection of exercise programs, methods and types of equipment shall be member’s entire responsibility, and the Club shall not be liable to member for any claims, demands, injuries, damages, or actions arising due to injury to member’s person or property arising out of or in connection with the use by member of the services, facilities, and premises of the Club. Member hereby holds the Club, its officers, owners, agents and employees harmless from all claims which may be brought against them by member or on member’s behalf for any such injuries or claims.

Several weeks later, Herren executed two other documents — a “Fitness Assessment” agreement and a “Personal Training Program Service Agreement and Release of Liability” (“Personal Training”). The Fitness Assessment agreement contained the following waiver provision:

MEMBERS ACKNOWLEDGMENT, ASSUMPTION OF RISK AND FULL RELEASE FROM LIABILITY OF NONSTOP FITNESS:
Member acknowledges that the fitness assessment hereunder includes participation in the strenuous physical activities, including but not limited to, aerobics dance, weight training, stationary bicycling, various aerobic conditioning machines and various nutritional programs offered by Nonstop Fitness. Member agrees to assume all risks and responsibility involved with participation in the physical activities. Member affirms that member is in good physical condition and does not suffer from any disability that would prevent or limit participation in physical activities. Member acknowledges that participation will be physically and mentally challenging, and member agrees that it is the responsibility of the member to seek competent medical or other professional advice regarding any concerns involved with the ability of member to take part in the Nonstop Fitness physical activities. Member agrees to assume any and all risks and take responsibility for not exceeding his/her own physical limits.

And the Personal Training agreement contained the following provision:

IMPORTANT NOTE: Buyer, . . . agrees [to] release . . . Nonstop Fitness, Inc. from liability due to participation. Buyer is urged to have this release agreement reviewed by an attorney before signing. By signing this Agreement, Buyer acknowledges that Buyer has read, understood and agreed with all terms and conditions of this agreement, after having the opportunity to have it reviewed by an attorney at the discretion of Buyer.

Further, the Personal Training agreement contained additional terms and provisions on the second page:

BUYER AGREES TO ASSUME ALL RISK AND RESPONSIBILITY INVOLVED WITH PARTICIPATION IN THE PHYSICAL ACTIVITIES____BUYER, . . . AGREES TO FULLY RELEASE TO NONSTOP FITNESS, INC. (AS WELL AS ANYOFITS OWNERS, EMPLOYEES, OR OTHER AUTHORIZED AGENTS, INCLUDING INDEPENDENT CONTRACTORS) PROM ANY AND ALLLIABILITY, CLAIMS AND OR LITIGATION ACTIONS THAT BUYER MAYHAVE FOR INJURIES, DISABILITY OR DEATH OR OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO THE PERSONAL TRAINING/NUTRITIONAL PROGRAMS AND THE PHYSICAL ACTIVITIES.

Plaintiffs contend that these exculpatory clauses are ambiguous and that the trial court erred in granting summary judgment on their negligence claim on this basis. We disagree. The contractual provisions at issue constituted clear and express waivers and releases from liability. My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580) (1987); Lovelace v. Figure Salon, 179 Ga. App. 51, 52 (1) (345 SE2d 139) (1986). Moreover, it is well established in this state that the inclusion of exculpatory clauses in a health or fitness club contract does not render the contract unenforceable as against public policy. E.g., Hembree v. Johnson, 224 Ga. App. 680, 681 (3) (482 SE2d 407) (1997); Day v. Fantastic Fitness, Inc., 190 Ga. App. 46 (1) (378 SE2d 166) (1989); My Fair Lady of Ga. v. Harris, 185 Ga. App. at 460. And notwithstanding plaintiffs’ contentions to the contrary, nothing about the circumstances surrounding Herren’s injuries distinguishes this case from previous cases in which we have held similar waivers valid and enforceable. This contention is thus without merit.

(b) Plaintiffs also argue that a material issue of fact exists concerning the identity of the parties to the agreement, specifically whether at the time the agreements were executed the gym was being operated under the corporate entity Nonstop Fitness, Incorporated or Club Management Services, Inc. d/b/a Nonstop Fitness Incorporated, and that the exculpatory clauses are unenforceable if it named the wrong corporate entity. In support of this contention, plaintiffs point to Sucher’s deposition testimony, in which he said that he was unclear as to whether Club Management Services, Inc. d/b/a Nonstop Fitness Incorporated or Nonstop Fitness, Inc. was operating the health club. The trial court rejected the contention that this uncertainty brought into question the enforceability of the agreements, aptly noting that Herren was seeking to avoid the agreements on his ordinary negligence claims but that he was relying on the agreements, particularly the fitness assessment, as a basis for his gross negligence claim.

As to this issue, the record shows that Sucher testified in his deposition that the gym was initially operated under Club Management Services, Inc., but that at the time Herren executed the agreements, the business was in a “transitional period where we were trying to expand and bring in the name of Nonstop Fitness.” Because the business was in transition, Sucher testified that he was unsure about which entity was operating the business at the time Herren executed the agreements. However, Sucher later clarified that the transition must have been completed by the time Herren signed the agreements because the agreements he signed, including the Membership Agreement that had been approved by the state, see OCGA § 10-1-393.2 (b), contained the name Nonstop Fitness or Nonstop Fitness, Inc.

Further, although Sucher could not initially remember if Nonstop Fitness had been incorporated or simply used as a brand name, the undisputed evidence shows that both Nonstop Fitness and Club Management Services were duly registered with the Georgia Secretary of State as “S,” or closely held corporations, at the time the agreements were executed. Additionally, it is undisputed that the services provided at the facility remained the same or substantially the same throughout the relevant, relatively short, time period at issue here, that the facility operated at the same location during that time, and that the facility was at all relevant times a closely held corporation with the same individual ownership. See generally Pet Care Professional Center, Inc. v. Bellsouth Advertising & Publishing Corp., 219 Ga. App. 117, 118-119 (1) (464 SE2d 249) (1995) (common law theory of continuous business enterprise); Ney-Copeland & Assocs., Inc. v. Tag Poly Bags, Inc., 154 Ga. App. 256 (267 SE2d 862) (1980) (same); Johnson-Battle Lumber Co. v. The Emanuel Lumber Co., 33 Ga. App. 517 (126 SE 861) (1925) (same). In light ofthe circumstances of this case, including plaintiffs’ reliance on the agreements to support some of their claims, we find unavailing their contention that a jury must decide whether the proper corporate entity was named in the agreements.

(c) Lastly, Herren argues that the agreements are unenforceable because the proper state authority has not approved the contents of the agreements as required by OCGA § 10-1-393.2. Implicitly recognizing that, at least as to the Membership Agreement, the record shows otherwise, Herren somewhat recasts this contention in his reply brief and contends instead that the agreement on file and approved by the state did not correctly identify the contracting party, and that, therefore, the contract which the gym defendants seek to enforce has never been approved by the state and is void and unenforceable. However, for the reasons stated in Division 1 (b), we also find this argument to be without merit.

Case No. A13A1117

2. Plaintiffs also contend that the trial court erred by granting summary judgment to Barrin, the original seller of the dietary supplement, on their negligence and strict liability claims, specifically arguing that the trial court erred by finding that Mellor, the entity that purchased Barrin’s assets, was the proper party in this case. We agree and reverse.

Generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.

(Citation and punctuation omitted.) First Support Svcs., Inc. v. Trevino, 288 Ga. App. 850, 852 (2) (655 SE2d 627) (2007). Barrin contends, and the trial court found, that Mellor assumed Barrin’s liabilities pursuant to the following language in a Purchase Agreement executed on February 25, 2009:

Buyer shall indemnify and hold harmless Seller from any liability arising from the actions of the business including but not limited to liabilities incurred, outstanding debts, harm caused by products and/or machinery owned or produced by the businesses.

Although this provision clearly required Mellor to indemnify and hold Barrin harmless, such an agreement is not synonymous with an agreement to assume another’s liabilities. “Georgia law defines indemnity as ‘the obligation or duty resting on one person to make good any loss or damage another has incurred . . . .’ Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 477 (644 SE2d 311) (2007).” (Footnote omitted; emphasis supplied.) Lanier at McEver, L.P. v. Planners and Engineers Collaborative, Inc., 284 Ga. 204, 206 (2) (663 SE2d 240) (2008). “This court has held that ‘indemnity’ means ‘reimbursement, restitution, or compensation,’ and Black’s Law Dictionary uses a similar definition: Reimbursement or compensation for loss, damage, or liability in tort[.]” (Citation omitted.) Old Republic Nat. Title Ins. Co. v. Darryl J. Panella, LLC, 319 Ga. App. 274, 276 (734 SE2d 523) (2012). And the provision at issue specifically refers to indemnification for liabilities “incurred,” which clearly refers to liability that has already been fixed or established.

Gwinnett Hosp. System, Inc. v. Massey, 220 Ga. App. 334 (469 SE2d 729) (1996), which both Barrin and the trial court rely on, actually illustrates the difference between an indemnification clause and an assumption of liabilities. In that case, unlike the case at hand, there was “an express agreement between [the Buyer] and the [Seller] recited in broad, unambiguous language that [the Buyer] assumed all liabilities and obligations” of the Seller. Id. at 336. Because of this language, we specifically rejected the Buyer’s arguments that it was “merely an indemnitor of the [Seller], subject to suit only if liability against the [Seller] is found first.” Id. at 337. Thus, in that case, we clearly distinguished between agreements that create an assumption of liabilities and provisions that require indemnification.

Decided November 6, 2013

Reconsideration denied December 3, 2013

Duffy & Feemster, Dwight T. Feemster, Phillips, Roberts & Carson, John D. Carson, Jr., for appellants.

Scheer & Montgomery, Steven E. Scheer, Freeman, Mathis & Gary, Shawn Kalfus, Philip W. Savrin, Mozley, Finlay son & Loggins, John R. Lowery, for appellees (case no. A13Á1076).

Taylor, Odachowski, Schmidt & Crossland, Peter H. Schmidt II, Brennan & Wasden, Wiley A. Wasden III, Kathryn A. Westberry, for appellee (case no. A13A1117).

Accordingly, pursuant to the common definition of the term and the express language of the Purchase Agreement, we find that although Mellor may have an eventual duty to indemnify Barrin, Mellor did not assume Barrin’s liabilities. Thus, Barrin is a proper party to this case, and the trial court’s order granting summary judgment to Barrin must be reversed.

Judgment affirmed in Case No. A13A1076.

Judgment reversed in Case No. A13A1117. Andrews, P. J., and Dillard, J., concur.

       Herren’s wife, Sharon Herren, also filed a loss of consortium claim. Both are parties to this appeal and will be collectively referred to as “plaintiffs”; Joey Herren will be referred to as “Herren.”

       Plaintiffs specifically argued that although a contract had been submitted for approval, it was not the same as any of the agreements at issue here.

       Although not at issue here, the trial court also found that a jury must decide whether the personal trainer was an independent contractor or an employee of the gym.

       The trial court noted that Barrin’s other contention — that the complaint failed to state a claim against it, had been remedied in plaintiffs’ third amended and recast complaint.

       We note that both Mellor and SWE had been made parties prior to the entry of this order.

       The record shows that the membership was a family membership in the name of Herren’s wife Sharon; however, Herren also signed the agreement.

       Although there appear to be some difference in pagination and presentation between the document Herren signed and the one approved by the relevant state authority, the substance of the documents, including the relevant exculpatory language, is the same.

       For purposes of this appeal, we will assume that the supplement Herren obtained from his former co-worker had already been distributed for retail sale by that date.


author: Boggs, Judge.

text:
    A13A1078.
    A13A1079.
    A13A1303.
    ANSLEY v. THE STATE. JOHNSON v. THE STATE. HANNAH v. THE STATE.
    (750 SE2d 484)
   Boggs, Judge.

Randy Ansley, Brian Lamar Johnson, and Quincy Hannah were tried together and convicted of armed robbery. Their amended motions for new trial were denied, and they appeal, asserting various enumerations of error. Finding no error, we affirm.

All three appellants contend the trial court erred in denying their motions to suppress documentary and testimonial evidence.

When reviewing a trial court’s ruling on a motion to suppress, we apply the “any evidence” standard, which means that we sustain all of the trial court’s findings of fact that are supported by any evidence. We construe all evidence presented in favor of the trial court’s findings and judgment.

(Citation, punctuation and footnote omitted.) Davis v. State, 302 Ga. App. 144, 144-145 (690 SE2d 464) (2010). Because the defendants “intensely cross-examined the officer[s] and challenged [their] credibility” in multiple hearings on the motions to suppress and at trial, we “do not apply a de novo standard of review, which applies only where the facts are undisputed.” (Citation and footnote omitted.) Id. at 145. In reviewing the trial court’s rulings, we may look at trial testimony as well as testimony at the hearing on the motion to suppress. Jones v. State, 318 Ga. App. 614, 616 (2) (734 SE2d 450) (2012).

So construed, the evidence showed that a finance company in Monroe, Georgia was robbed on December 4,2009, shortly before 1:00 p.m. The manager of the company testified that the third day of the month was the company’s busiest day, because social security, retirement and VAchecks were received by their customers, who then made payments owed to the company. She further testified that the employees customarily collected all the receipts and secured them in her desk for deposit with the bank. On December 4, the company had approximately $600 as “normal operating cash” and just over $5,200 to deposit with the bank.

The robber arrived while the sole male employee of the business was on his regular lunch break from 12:00 noon to 1:00 p.m. The robber entered the business through an open back door, which was ordinarily kept locked and barricaded with a two-by-four board, chain, and padlock during business hours. Employee Cassandra Cameron was the last person to open the door before the robbery; she had asked to borrow the manager’s keys that morning to take out the trash, although trash was not ordinarily taken out until mid or late afternoon, which was the slowest time in the office.

After entering the business by the back door, the robber put a gun to the manager’s head and demanded, “Get the money.” He took the manager’s cell phone and instructed Cameron to get the money; the manager told Cameron to obey the robber, and she unlocked the manager’s desk drawer and put the money in a bag. The manager described the robber as a black male with dark eyes and a “very well groomed” goatee and mustache, wearing a black Carhartt-style heavy jacket with a grey hoodie underneath, khaki pants, white tennis shoes and a black ski mask. The manager also testified that Cameron was unnaturally calm during the robbery and ignored the robber’s instructions to remain in the bathroom for ten minutes after he left. The male employee returned about five minutes before 1:00 p.m. and chased the robber out the back door; he caught a glimpse of “dark clothes, white shoes.” After the robbery, the deposit bag was discovered lying on the floor near the manager’s desk “as if someone had dropped it.”

At about 1:00 p.m., a Monroe police officer on patrol noticed Johnson, whom he knew from prior law enforcement contact, walking down the street behind the finance company. Johnson, whose photograph depicts a black male with a neatly-trimmed goatee beard and mustache, was wearing khaki pants and a dark-colored jacket, and it appeared to the officer that Johnson was trying to avoid him. A few minutes later, the officer learned that the finance company had been robbed and received the description of the suspect. He immediately returned to the area but was unable to relocate Johnson. After obtaining a photograph of Johnson, he provided it to other officers and they all continued the search. Several hours later, Johnson was located and taken into custody; $300 in cash, a cell phone, and a cell phone charger were found on his person.

The City of Monroe police department is located less than a block from the scene of the robbery. The police arrived “very, very quickly” and began their investigation. A nearby resident reported seeing an older model “white BMW with light tinted windows” driving back and forth “four or five times” on his street at about 12:30 p.m. on the day of the robbery. The last time the vehicle went by, around 1:00 p.m., it was traveling at a high rate of speed “from downtown going towards Spring Street” and was occupied by two or three individuals. A sheriff’s deputy took information from the resident and instructed officers to be on the lookout (BOLO) for a “white BMW with small, gold rims.”

Another sheriff’s deputy in an unmarked vehicle received the BOLO and recalled that he had recently seen a similar vehicle in a subdivision about two miles from the robbery scene. He drove to the subdivision, and around 1:45 p.m., he saw a white BMW pull up to a residence; two black males, whom he recognized from “dealing with them” although he did not recall their names, went in the house. Afew minutes later, the deputy saw the same men get into a different vehicle and leave, and he radioed that information to dispatch. Other officers made a traffic stop on the second vehicle; Ansley was driving and Hannah was a passenger.

Both men were questioned and arrested, but the trial court later determined that the arrests were based upon insufficient probable cause and suppressed their statements given at the time of the arrest. The trial court held, however, that the vehicle stop itself was permissible based upon the specific and articulable facts known to the police.

After police informed the manager of the finance company that Ansley had been arrested, she told police that she recognized his name. Ansley was the cousin of Roman, Cameron’s live-in boyfriend and father of her child, and the manager had seen Ansley on several occasions when she gave Cameron a ride home. A police detective spoke with Cameron and her boyfriend that evening, and explained that he believed the robbery was committed by someone with “inside knowledge” who knew that there was a large amount of money on hand and that the only male employee would be out of the office. Both agreed that there had to be inside knowledge, and both agreed to come down to the police station for polygraph examinations. But when Cameron arrived for her polygraph, she instead gave a voluntary statement asserting that the robbery was planned by Ansley and Hannah in her apartment. Cameron pleaded guilty and testified at trial.

Four days after the arrest of Ansley and Hannah, a jail trusty, who was acquainted with both men, was asked by Hannah to deliver a letter to Ansley. The letter was intercepted by jail personnel; it was addressed to “White Boy” and instructed him in detail as to “your story.” The letter added, “don’t take no pleas all of us is taking to to [sic] trail [sic] if they don’t drop it in less than 2 years nobody going to talk then we will be free.” Ansley has “White Boy” tattooed on his arm; Johnson’s given name is Brian, and Hannah’s letter repeatedly referred to “Bryant” and “Black” and instructed Ansley to say that he knew “Bryant” as “Black.”

Case No. A13A1078

1. In his sole enumeration of error, Ansley contends that the trial court erred in denying his motion to suppress, for two reasons. First, he contends that the traffic stop of the vehicle he was driving was improper, relying almost exclusively upon Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). Second, he contends that Cameron’s statement to police should have been suppressed as “fruit of the poisonous tree” because she knew that he had been arrested and this knowledge caused her to reveal his involvement in the robbery. Neither contention has merit.

(a) A “particularized description of a suspect vehicle may provide a reasonable suspicion sufficient to warrant a Terry stop.” Shorter v. State, 239 Ga. App. 625, 626 (1) (521 SE2d 684) (1999). Here, police had a detailed description of the car including its make, color, approximate age, and features such as tinted windows and rims. A deputy was able to locate the car within 45 minutes after a BOLO was put out, at a location within two miles of the robbery that could he easily reached on main roads in the direction the vehicle was last seen traveling. This description “was much more particularized than that in Vansant.” Cray v. State, 291 Ga. App. 609, 611-612 (1) (662 SE2d 365) (2008) (description including make, model, color, size, wheels; vehicle found and stopped 30 minutes after robbery). “Given the vehicle’s description and proximity to the crime, the officer had a well-founded, objective basis for suspecting the occupant of the vehicle was the subject of the lookout.” (Citations and punctuation omitted.) Id.

In addition, officers knew that the white BMW belonged to Ansley, went to the area where it was last seen, and had Ansley and his companion under observation when they switched cars — conduct that suggested an effort to throw off pursuit. See, e.g., Watt v. State, 317 Ga. App. 551, 554 (1) (732 SE2d 96) (2012) (planto switch vehicles part of trafficking scheme). The trial court did not err in holding that the officers had sufficient specific and articulable suspicion to support a Terry stop. Cray, supra, 291 Ga. App. at 612 (1).

(b) Ansley, citing only the venerable decision of Wong Sun v. United States, 371 U. S. 471 (83 SCt 407, 9 LE2d 441) (1963), contends that Cameron’s statement to police should have been suppressed as “fruit of the poisonous tree,” because Cameron knew that Ansley had been arrested and this caused her to reveal his involvement in the crime. But even assuming that this conjecture regarding Cameron’s motivation is correct, “[t]he ‘fruit of the poisonous tree’ doctrine fails where intervening circumstances attenuate the link between the illegality and the evidence obtained. [Cit.]” Rashid v. State, 292 Ga. 414, 419 (4) (737 SE2d 692) (2013).

[W]hen examining the admissibility of evidence that is “fruit of the poisonous tree,” the appropriate question is whether the evidence at issue has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Using this rationale, two functionally similar exceptions to the exclusionary rule — the independent source doctrine and the ultimate or inevitable discovery doctrine — have developed because the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.

(Citations, punctuation and footnote omitted; emphasis in original.) Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007).

The independent source doctrine allows admission of evidence that was discovered by means wholly independent of any constitutional violation, while the ultimate or inevitable discovery doctrine allows admission of evidence that was discovered as a result of police error or misconduct if the State establishes by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, without reference to the police error or misconduct.

(Citation omitted.) Id. at 323-324 (2). “In making this determination, we consider the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.” (Citations and punctuation omitted.) Watson v. State, 302 Ga. App. 619, 624-625 (1) (691 SE2d 378) (2010). And on review by this court,

[t]he legal question is whether there is any evidence to support the judgment call made by the trial court. In the case at bar, the evidence was almost entirely testimonial. The judgment call thus depends largely on the trial court’s evaluation of the witnesses’ credibility and the weight to be assigned to their varying testimony.

Stidham v. State, 299 Ga. App. 858, 864 (1) (683 SE2d 906) (2009).

Here, as noted above, the police had a specific and articulable suspicion to support the stop of the vehicle driven by Ansley, and, as the trial court correctly observed, his identification as a suspect was independent of his illegal arrest. Even had Ansley not been arrested after the legal traffic stop, he was identified as a suspect within an hour of the robbery, and the police would have continued their investigation of him regardless of whether he was in custody. It is at least as likely that Cameron could have been motivated to confess by the detective’s informing her that the robbery involved inside information. But even assuming that Cameron was motivated by news of Ansley’s arrest rather than the police investigation, there is no evidence that Cameron’s actions would have been different had she learned instead that Ansley had been stopped and questioned, or that he had been identified as a suspect. And the manager’s report to police of Ansley’s relationship with Cameron would not have changed, regardless of how she learned that Ansley was a person of interest to the police. Moreover, given the substantial facts suggesting that the robbery was an “inside job,” there is a reasonable probability that the police in the ordinary course of their investigation would have uncovered the connection between Ansley and Cameron regardless of his arrest.

The trial court did not err in concluding that Cameron’s statement is “untainted by any illegality associated with the arrest of the defendant and is therefore admissible.” See Watson, supra, 302 Ga. App. at 625-626 (1) (reasonable probability that witness’ statements would have been discovered during ordinary course of police investigation, regardless of illegal search); Stidham, supra, 299 Ga. App. at 864 (1) (“In view of the multiple investigations which were ongoing contemporaneously ..., we cannot say that there was no evidence to support the trial court’s decision.”).

Case No. A13A1079

In a single enumeration of error, Johnson contends that the trial court erred in denying his motion to suppress, and that the evidence therefore was insufficient to support his conviction.

2. (a) Johnson contends that the trial court erred in denying his motion to suppress because officers had no probable cause to arrest him. But an arrest

is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

(Citations and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 759 (4) (d) (732 SE2d 810) (2012).

Here, the victim gave a detailed description of the armed robber, including his clothing and beard, and the direction in which he fled from the building. Almost simultaneously with the commission of the crime, a police officer fortuitously encountered Johnson, whom he knew and recognized, on the street behind the building. Johnson appeared to the officer to be trying to avoid him, and the officer almost immediately learned that Johnson matched the description of the robber. The officer obtained a photograph of Johnson and provided it to other officers who eventually located and arrested him; the photograph introduced in evidence by the State shows Johnson wearing a neatly-trimmed goatee beard and mustache, as described by the robbery victim.

In Davis v. State, 304 Ga. App. 355, 358 (1) (a) (696 SE2d 381) (2010), we found probable cause to arrest Davis when an eyewitness gave a detailed description of the shooter and his clothing and the direction in which he fled, and police shortly afterward encountered Davis, who matched the description, near the scene. And though Johnson was arrested as a result of the information shared among several officers, “[p]robable cause can be based upon the collective knowledge of multiple police officers when there is some degree of communication between them.” (Citation and punctuation omitted.) Id.

(b) The evidence presented at trial was sufficient to support Johnson’s conviction under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Garlington v. State, 268 Ga. App. 264, 272 (6) (601 SE2d 793) (2004).

Case No. A13A1303

3. In his first enumeration of error, Hannah contends that the trial court erred in denying his motion to suppress the letter he attempted to send to Ansley. He argues that had he not been illegally arrested, he would never have written the note and the police would not have seized it. For the reasons discussed in Division 1 (b), above, given the ongoing police investigation, Hannah’s identification as a suspect within an hour of the robbery on December 4, and Cameron’s positive identification on December 8 of Hannah as a participant in the robbery, we cannot say that the trial court erred in concluding that the connection between Hannah’s arrest and the letter was sufficiently attenuated.

4. In two enumerations of error, Hannah alleges ineffective assistance on the part of his trial counsel.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation and punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). And “[a] trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

(a) Hannah first contends that his trial counsel was ineffective in failing to communicate a plea offer from the State. At sentencing, the prosecutor stated that Hannah had been offered a plea of twenty with ten years to serve for armed robbery. Hannah claimed he was never informed of any plea offer and that he would have accepted it, but “every time I asked [trial counsel] about a plea, he told me, they really ain’t got no case, we going to win.” Hannah’s trial counsel, on the other hand, testified that the State made a plea offer in writing over a year before trial of 12 years to serve. According to trial counsel, at the pretrial conference in October, “the Judge said, has the state made you an offer, and I looked at [Hannah] and said, yes, it’s 12 years to serve. And he said he didn’t want it. I relayed to the Judge he did not want the offer.” He also testified that Hannah told him “he did not want to be sentenced under armed robbery if he could avoid it” because of the mandatory minimum sentence.

Hannah contends that the inconsistency in the term of years mentioned by his trial counsel at the hearing on the motion for new trial and that stated by the prosecutor at sentencing, together with trial counsel’s failure to correct the prosecutor when he told the judge that no plea offer was on the table, demand a finding of ineffective assistance. We disagree.

The trial court noted correctly that the conflicting testimony presented a credibility issue. In resolving the conflict, the court expressly considered several factors: that Hannah acknowledged he was informed of the minimum and maximum sentences for armed robbery, that his counsel testified that he discussed a plea with Hannah “over and over,” and that Hannah rejected the idea of any plea to armed robbery because he did not want to serve the mandatory ten years. The trial court also considered the letter written by Hannah from the jail instructing his co-defendant, “don’t take no pleas,” and concluded that Hannah “had no intention of accepting any plea offer and would not plead guilty regardless of any sentencing offer.”

“When considering claims of ineffectiveness of counsel, the trial judge determines witness credibility and is not required to accept the defendant’s version of events. [Cits.]” Matthews v. State, 294 Ga. App. 836, 840-841 (3) (b) (670 SE2d 520) (2008). “Since determining the credibility of witnesses is a matter left to the trial court’s discretion,” we find that the trial court did not err in denying Hannah’s motion for new trial based on alleged ineffective assistance of counsel in failing to communicate a plea offer. Terrell v. State, 276 Ga. App. 102, 104 (1) (622 SE2d 434) (2005) (when evidence in conflict, trial court did not abuse discretion in determining that defendant was informed of plea offer).

(b) Hannah asserts that his trial counsel rendered ineffective assistance generally “throughout trial,” citing in an abbreviated fashion various instances of alleged ineffectiveness. Although Hannah complains that trial counsel failed to file a motion to sever his trial from that of his co-defendants, “[t]he decision regarding whether to file a motion to sever is a matter of trial tactics and strategy, and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective.” (Citations and punctuation omitted.) Ross v. State, 313 Ga. App. 695, 696 (1) (a) (722 SE2d 411) (2012). Moreover, Hannah has not demonstrated that a motion to sever would have succeeded.

[A]ntagonism between co-defendants is not enough in itself to require severance, rather [Hannah] must also demonstrate that he was harmed by the failure to sever. [Hannah] has not made this showing; nor has he shown a reasonable likelihood that the outcome of his trial would have been different if severance had been granted.

(Citations and punctuation omitted.) Johnson v. State, 287 Ga. 767, 770 (2) (700 SE2d 346) (2010).

During Ansley’s cross-examination of Cameron, the prosecutor interposed an objection to a question by Ansley’s counsel regarding the potential sentence to which Cameron was exposed as a result of her guilty plea. Hannah complains that his trial counsel was ineffective in failing to object to the prosecutor’s objection because the prosecutor incorrectly stated the potential sentence as thirty rather than ten years. See OCGA § 16-4-8. But, as the prosecutor noted at the hearing on the motion for new trial, Cameron’s plea agreement, in which she was represented by counsel, itself recited that “for the offense(s) you have been charged with, you could be sentenced up to 30 YES confinement.” Thus “any possible bias the witness may have had” was not affected by the legal error on the part of the prosecutor. Moreover, as the trial court observed, an overstatement of the penalty may well have been more damaging to Cameron’s credibility because it increased the likelihood of a perception of witness bias.

Hannah also complains that his trial counsel did not introduce certified copies of the jail trusty’s criminal convictions. Trial counsel testified at the hearing on the motion for new trial and explained that he did not believe it necessary to do so because “he was already in jail and the jury knew it.” The trusty appeared in the courtroom in a jail uniform, shackles, and handcuffs, and testified that he was “locked up in the Walton County jail” at the time the letter was given to him. “[Strategic decisions regarding what witnesses to call, whether and how to conduct cross-examination, and all other tactical decisions are the exclusive province of the lawyer after consultation with his client.” Campos v. State, 263 Ga. App. 119, 122 (587 SE2d 264) (2003). Counsel’s testimony supported the trial court’s conclusion that Hannah failed to demonstrate ineffective assistance on these grounds.

Finally, Hannah complains that his trial counsel improperly questioned a police officer regarding evidence that was excluded by a pretrial order to suppress. Trial counsel, while cross-examining the officer that arrested Brian Johnson, asked the officer the basis for Johnson’s arrest, and the officer responded, “There was some other stuff that was said that I can’t go into.” Counsel persisted, and Ansley’s counsel objected on the basis of hearsay. The trial court then excused the jury, and a discussion of the hearsay issue ensued, with the trial court’s observing that it had excused the jury to avoid placing objectionable testimony on the record. The issue of the suppression order was then raised by the witness himself.

At that point, the trial court discussed with counsel the best way to “limit the damage,” and after conferring among themselves, Hannah’s counsel offered to withdraw the question, and Ansley and Johnson’s counsel moved for a mistrial. The trial court concluded that the best way to handle the situation was to allow Hannah’s counsel to withdraw his question, and allow the prosecutor to elicit a statement that the arrest of Johnson was based on other unspecified information obtained by the police that day.

At the hearing on the motion for new trial, counsel acknowledged that he did not have any details regarding the arrest of Johnson. But he added that he was not concerned because neither the arresting officer nor his testimony involved his client, and that his question was merely intended to suggest that the police arrested Johnson because “he was a black man in Monroe”; he believed that it “was a question that really helped Quincy Hannah.”

Decided November 18, 2013

Reconsideration denied December 3, 2013

John M. Petty, Jr., for appellants (case nos. A13A1078 and A13A1079).

John W. Donnelly, for appellant (case no. A13A1303).

Layla H. Zon, District Attorney, Kimberly M. Minicozzi, Ronald V. McNease, Jr., Walter C. Howard, Assistant District Attorneys, for appellee.

Hannah’s claims are “judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight. The constitutional guarantee of effective legal assistance means that a defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.” (Citations, punctuation and footnotes omitted.) Alexander v. State, 319 Ga. App. 199, 203 (2) (734 SE2d 432) (2012). As the trial court observed, Hannah’s trial counsel should have been aware of the suppression of the evidence in question, but Hannah failed to show that the outcome of his trial would have been different had his trial counsel not asked the question. Not only did the question have no direct connection with Hannah, the trial court immediately excused the jury before the question was answered, and crafted a series of questions for counsel to “correct any error that would otherwise have been induced.” We cannot say that the trial court erred in denying Hannah’s motion for new trial on this ground.

Judgments affirmed.

Doyle, P. J., and McFadden, J., concur.

       The owner of the residence testified that Ansley came to her home that day and asked to borrow her car because his foot was injured and he could not drive his straight shift car.

       Hannah puts great emphasis on the short period of time between Cameron’s interview on December 8 and the discovery of the letter. But given the ongoing, intensive police investigation and the fact that Hannah was identified as a suspect within a few minutes of the robbery, there was sufficient probability that Hannah’s arrest would have taken place by December 8 or even sooner, had the investigation proceeded without his initial arrest. Hannah’s contention that he would not have been in jail on December 8 and would not have written the letter was resolved against him by the trial court.

       Hannah points to a colloquy between the court and prosecutor at a status hearing on October 10, 2011, in which he claims “the State announced that there was no plea offer.” But a review of the relevant transcript shows that the prosecutor, in response to the trial court’s question as to whether an offer had been made, responded, “I cannot say if it has or hasn’t, Your Honor.”