author: Mercier, Judge.

text:
    A16A0245.
    EVANS v. GWINNETT COUNTY PUBLIC SCHOOLS.
    (788 SE2d 577)
   Mercier, Judge.

Phillip Evans appeals an order of the Superior Court of Gwinnett County dismissing his complaint against the Gwinnett County Public Schools (the “School System”). Evans contends that the trial court erred by ruling that a declaratory judgment may not issue to address the validity of a proposed future action, by ruling that the School System has sovereign immunity against state law claims, by ruling that the threat of arrest cannot constitute a Fourth Amendment violation, and by failing to consider the availability of damages as a remedy. Finding no error, we affirm.

Evans is a resident of Gwinnett County, and in 2014, his child attended public school in Gwinnett County The school his child attended is owned and operated by the School System. Evans possesses a Georgia Weapons Carry License (“GWL”) pursuant to OCGA § 16-11-129. Under OCGA § 16-11-127.1 (b) (1), it is a crime to carry a firearm in a “school safety zone.” The school which Evans’s child attended is a “school safety zone” as defined by OCGA § 16-11-127.1 (b)(3).

During the 2014 legislative session, the General Assembly passed House Bill No. 826 and House Bill No. 60. House Bill No. 60 (“HB 60”) prohibited anyone from carrying any weapon (including a pistol or revolver) in a school safety zone, with the exception that a GWL holder is permitted to do so when he “carries or picks up” a student. See HB 60, Ga. L. 2014, p. 599. In contrast, House Bill No. 826 (“HB 826”) contained provisions that expressly conflicted with HB 60. Under HB 826, GWL holders were permitted to possess their licensed firearms within a school safety zone (a term redefined in HB 826). See HB 826, Ga. L. 2014, p. 432. The two bills contained conflicting versions of OCGA § 16-11-127.1. Where HB 60 prohibited possession of a firearm in a school safety zone (except that a GWL holder could when carrying or picking up a student), HB 826 expressly authorized a GWL holder to possess a firearm in a school safety zone without the aforementioned qualifying language.

HB 826 was signed into law by Governor Deal on April 22, 2014, while HB 60 was signed into law on April 23, 2014. See HB 60 and HB 826 supra. The version of OCGA § 16-11-127.1 that was published in the Official Code of Georgia Annotated was the one contained in HB 60. See OCGA § 16-11-127.1 (2014).

After the laws were passed, Evans contacted the School System to ask if, as a GWL holder, he would be permitted to carry a licensed firearm in the schools owned and operated by the School System. On July 28, 2014, an official from the School System replied to Evans. The official explained that it was still a crime for Evans to carry a firearm in the School System’s schools unless he was picking up or dropping off a student. He explained that if Evans chose to carry a firearm in a School System school, the School System would seek to have him prosecuted, and that they might issue him a criminal trespass warning. Evans did not carry a firearm into a school system school and was not arrested or prosecuted.

On September 2,2014, Evans filed a complaint seeking damages, along with declaratory and injunctive relief. Evans’s complaint alleges that the School System violated his rights under OCGA §§ 16-11-127.1 and 16-11-173. Furthermore, he sought a declaration that OCGA § 16-11-127.1 gave GWL holders the right to carry their firearms in a school safety zone. Evans later amended his complaint to include a claim under 42 USC § 1983 alleging that the School System violated his right against unlawful seizure under the Fourth Amendment of the United States Constitution.

The School System filed an answer along with a motion to dismiss Evans’s complaint on October 9, 2014. After a hearing, the trial court entered an order on February 5, 2015, granting the School System’s motion to dismiss, dismissing all Evans’s claims without prejudice. This appeal followed.

1. Evans argues that the trial court erred by ruling that the School System has sovereign immunity against state law claims. “We review de novo a trial court’s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that the party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Pelham v. Bd. of Regents of the Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013) (citation and punctuation omitted). Moreover, “[a] motion to dismiss asserting sovereign immunity ... is based upon the trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiff’s claim.” Bonner v. Peterson, 301 Ga. 443 (687 SE2d 676) (2009) (citation omitted).

The Georgia Constitution provides:

. . . [Sjovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

1983 Ga. Const., Art. I, Sec. II, Par. IX (e). We have stated previously that this provision

includes county-wide school districts ... created pursuant to Art. VIII, Sec. V, Par. I of the 1983 Georgia Constitution and OCGA § 20-2-50. Like the counties within which they are created, such school districts are political subdivisions of the state entitled to the sovereign immunity extended to the state.

Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995) (citation and punctuation omitted). Accordingly, Evans must show that the General Assembly specifically waived the School System’s sovereign immunity with regard to his claims.

Evans argues that such a specific waiver can be found in OCGA § 16-11-173 (b) (1) which provides:

Except as provided in subsection (c) of this Code section, no county or municipal corporation, by zoning, by ordinance or resolution, or by any other means, nor any agency, board, department, commission, political subdivision, school district, or authority of this state, other than the General Assembly, by rule or regulation or by any other means shall regulate in any manner:
(B) The possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or other weapons or components of firearms or other weapons [.]

The statute goes on to establish a private right of action which includes the potential for the recovery of actual damages, equitable relief, and any other reliefa court may deem proper. OCGA § 16-11-173 (g). While this statute may constitute a waiver by the General Assembly of the School System’s sovereign immunity in some instances, it does not waive the School System’s sovereign immunity as to Evans’s claims.

The version of OCGA § 16-11-173 on which Evans relies did not become effective until July 1, 2015, and so was not applicable at the time he filed this action. The version of OCGA § 16-11-173 (b) (1) in effect in 2014 provided:

Except as provided in subsection (c) of this Code section, no county or municipal corporation, by zoning or by ordinance or resolution, nor any agency, board, department, commission, or authority of this state, other than the General Assembly, by rule or regulation shall regulate in any manner:
(B) The possession, . . . carrying, ... of firearms.

This version of the statute, which was applicable at the time Evans filed this action, did not specifically include school districts as did the one that became effective on July 1, 2015.

“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-701 (10 SE2d 375) (1940) (punctuation omitted). Moreover, “from the addition of words it may be presumed that the legislature intended some change in the existing law.” Bd. of Assessors of Jefferson County v. McCoy Grain Exchange, Inc., 234 Ga. App. 98, 100 (505 SE2d 832) (1998) (citation and punctuation omitted). Applying these principles, if the version of OCGA § 16-11-173 (b) (1) applicable at the time Evans filed this action had waived the sovereign immunity of school districts, it would render the addition of “school district^]” to the statute meaningless. Given the addition of these words to OCGA § 16-11-173 (b) (1), we must presume that the 2015 amendment was intended as a change to the law. Since the legislature expressly added “school districts” to the organizations regulated by the statute, it follows that under the prior law school districts were not included. Accordingly, the version of OCGA § 16-11-173 (b) (1) applicable at the time this case was filed did not act as a specific waiver of sovereign immunity as to the School System. Thus, the trial court lacked subject matter jurisdiction over Evans’s state law claims at the time the suit was filed and dismissal was appropriate. See generally Bonner, supra.

2. Moreover, Evans’s claims are moot due to the General Assembly’s adoption of House Bill No. 90 (“HB 90”). HB 90 was approved by Governor Deal on March 13, 2015, and states specifically that

the text of Code sections and title, chapter, article, part, subpart, Code section, subsection, paragraph, subpara-graph, division, and subdivision numbers and designations as contained in the Official Code of Georgia Annotated... as amended by the text and numbering of Code sections as contained in the 2014 supplements to the Official Code of Georgia Annotated . . . are hereby reenacted.

HB 90, Ga. L. 2015, p. 5, § 54. The version of OCGA § 16-11-127.1 printed in the Official Code of Georgia Annotated was the one adopted in HB 60, and any conflict between the two versions was resolved by HB 90. OCGA § 28-9-5 (c) provides:

The Code Revision Commission shall prepare and have introduced at each regular session of the General Assembly one or more bills to reenact and make corrections in the Official Code of Georgia Annotated, portions thereof, and the laws as contained in the Code and any pocket part, supplements, and revised volumes thereof. Except as otherwise provided by general law, such reenactment of the Official Code of Georgia Annotated shall have the effect of adopting and giving force and effect of law to all the statutory text and numbering as contained in such volumes, pocket parts, and supplements, including but not limited to provisions as published therein in accordance with subsections (a) and (b) of this Code section.

Thus, by passing HB 90 and expressly reenacting the language of OCGA § 16-11-127.1 taken from HB 60, the General Assembly affirmatively re-adopted the language of HB 60.

“A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights.” Brown v. Spann, 271 Ga. 495, 496 (520 SE2d 909) (1999) (citation omitted). Here, Evans’s entire case is predicated on the conflict between HB 60 and HB 826. But HB 90 resolved that conflict by establishing that the language used in OCGA § 16-11-127.1 was the language from HB 60. Accordingly, because the legislature has now affirmatively expressed its intent by adopting the language contained in HB 60, whether the language of HB 826 should have been applicable at the time Evans contacted the School System is now a mere abstract question. We hold that HB 90 establishes unequivocally that the version of OCGA § 16-11-127.1 printed in the Official Code of Georgia Annotated is the version the General Assembly intended to pass and be given the full force of the law, such that a person possessing a GWL is prohibited from carrying a firearm in a school safety zone except as provided in OCGA § 16-11-127.1 (c). Thus, the issues raised in Evans’s declaratory judgment action are moot.

For this Court to strike down two separate laws duly passed by the General Assembly and signed by the Governor simply because Evans wishes his interpretation of HB 826 to carry the day would be an example of the “judicial activism of the highest order” that Evans so vociferously warns this Court about in his reply brief.

Additionally, Evans’s contention that the School System’s argument as to HB 90 is improperly being raised for the first time on appeal is unavailing. HB 90 was signed into law on March 13, 2015, and the order dismissing Evans’s case was entered on February 5, 2015. Thus, HB 90 was not law at the time this case was before the trial court, and the School System could not have raised that particular argument below. In any event, its subsequent passage renders Evans’s case moot.

3. However, even if we were to find that both the previous and current versions of OCGA § 16-11-173 (b) (1) acted as a waiver of sovereign immunity as to school districts, and that Evans’s case is not moot, Evans’s claim still fails. OCGA § 16-11-173 provides that no authority enumerated in the statute shall by way of “rule or regulation or by any other means . . . regulate in any manner” the “possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or other weapons or components of firearms or other weapons[.]” OCGA § 16-11-173. The only authority which may regulate such activity is the General Assembly. Id.

Here, there is no evidence that the School System has attempted to regulate the possession, transport, or carrying of firearms in any manner. In fact, the only rule or regulation under scrutiny as to the legality of citizens with GWLs being permitted to carry firearms in school safety zones is OCGA § 16-11-127.1, which was passed by the General Assembly If the School System were to pass its own rules as to the regulation of firearms, that might violate OCGA § 16-11-173. Here, an official with the School System simply informed Evans, a GWL holder, that in his opinion Evans would be in violation of OCGA § 16-11-127.1 if he carried a firearm onto school property, adding that he would notify the authorities if Evans did so. Accordingly, the School System was not in violation of OCGA § 16-11-173 (b) (1) even if the statute did grant a waiver of sovereign immunity at the time the suit was filed.

4. Evans argues that the trial court erred by dismissing his claim under 42 USC § 1983 for failure to state a claim because a threat of arrest cannot be a Fourth Amendment violation. A local governing body may be sued for monetary, declaratory, and injunctive relief under 42 USC § 1983 when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dept. of Social Svcs. of City of New York, 436 U. S. 658, 690 (II) (98 SCt 2018, 56 LE2d 611) (1978). To prevail on a claim under 42 USC § 1983, Evans must demonstrate that the School System subjected him “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]” 42 USC § 1983. Furthermore, he must show that “[the School System’s] action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Bd. of County Commrs. of Bryan County, Okl. v. Brown, 520 U. S. 397, 404 (II) (117 SCt 1382, 137 LE2d 626) (1997). Here, the trial court ruled that Evans’s pleadings failed to establish a “seizure” such that he would have a valid claim that his Fourth Amendment rights had been violated. We agree.

Evans cites to GeorgiaCarry.Org, Inc. v. Georgia, 687 F3d 1244 (11th Cir. 2012) for the statement that

[t]his court has held that a risk of prosecution is sufficient if the plaintiff alleges (1) that an actual threat of prosecution was made, (2) that prosecution is likely, or (3) that a credible threat of prosecution exists based on the circumstances. To show that a prosecution is likely or a credible threat exists, a plaintiff must show that there is a realistic danger of sustaining direct injury as a result of the statute’s operation or enforcement. We look to see whether the plaintiff is seriously interested in disobeying, and the defendant seriously intent on enforcing the challenged measure.

Id. at 1252 (citations and punctuation omitted). While this is an accurate quote from the Eleventh Circuit Court of Appeals, it does not support Evans’s argument. The Eleventh Circuit made that statement while considering the question of standing to bring a facial challenge to a statute, not in determining whether a “seizure” had taken place for purposes of a Fourth Amendment analysis. We agree that Evans has standing to bring his claims, however he has not brought a facial challenge to OCGA § 16-11-127.1, and the facts do not support a finding that Evans suffered a deprivation of his Fourth Amendment rights.

“A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.” Brendlin v. California, 551 U. S. 249, 254 (II) (A) (127 SCt 2400, 168 LE2d 132) (2007) (citations and punctuation omitted). To determine whether a “seizure” has taken place within the meaning of the Fourth Amendment, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U. S. 429, 437 (II) (111 SCt 2382, 115 LE2d 389) (1991) (citations and punctuation omitted).

Here, Evans makes no argument that his freedom of movement was ever restrained by police conduct, or that he did not have the freedom to go about his business. Instead, Evans argues that it was the threat of prosecution by a school official that amounted to a seizure and implicated his Fourth Amendment rights. He cites to Steffel v. Thompson, 415 U. S. 452 (94 SCt 1209, 39 LE2d 505) (1974) for the proposition that threats of arrest or prosecution can give rise to valid claims under 42 USC § 1983. However, Steffel is distinguishable from the instant case. In Steffel, the petitioner and a friend were distributing anti-war handbills on an exterior sidewalk of the North DeKalb Shopping Center. After they declined a request by shopping center employees to stop passing out the handbills, the police were called. The police officers told both individuals they would be arrested for violating a criminal trespass statute if they continued passing out the handbills. The individuals left the shopping center to avoid arrest. Two days later, the scene repeated itself, and while the petitioner left to avoid arrest, his companion stayed and was arrested. The petitioner brought suit against the DeKalb County Solicitor, the DeKalb County Police, as well as both the owner and the manager of the North DeKalb Shopping Center to prevent enforcement of the statute at issue. See Steffel at 455-456.

In Steffel, the petitioner was actually threatened with arrest and prosecution by police, and his companion was in fact arrested. The instant case is distinguishable because Evans was never approached by police and threatened with arrest or prosecution. Moreover, Evans does not claim that the law itself is unconstitutional or being unconstitutionally applied to him. Instead, Evans is claiming he was seized in violation of the Fourth Amendment because a school official informed him that if he carried a weapon into a school safety zone he would be in violation of the law. However, there is no evidence that Evans was approached by any law enforcement official and threatened with arrest or prosecution. Absent more, the mere opinion and statement of intent by a school official is not a seizure for purposes of a claim under the Fourth Amendment. Thus, when we examine the totality of the circumstances we conclude that Evans has failed to show that he suffered an injury sufficient to state a claim under the Fourth Amendment, and the trial court was correct to dismiss his 42 USC § 1983 claim. See Solano-Rodriguez v. State, 295 Ga. App. 896, 901 (1) (673 SE2d 351) (2009) (“Taking into account all of the foregoing circumstances, we conclude that the trial court was authorized to find that no seizure occurred.”).

Decided July 1, 2016.

John R. Monroe, for appellant.

Thompson, Sweeny, Kinsinger & Pereira, Stephen D. Pereira, W. Creighton Lancaster, for appellee.

5. In light of our finding that the trial court did not err in dismissing Evans’s complaint, we need not address his remaining enumerations of error.

Judgment affirmed.

Ellington, R J., and Branch, J., concur.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A0256.
    THE STATE v. MANTOOTH.
    (788 SE2d 584)
   McMlLLIAN, Judge.

In this interlocutory appeal, we are asked to consider whether a criminal defendant has standing to object to a prosecuting attorney’s decision to recuse himself after the prosecutor has determined that he has an actual or potential conflict of interest in the case. For the reasons set forth below, we answer in the negative and reverse the trial court’s order vacating the recusal.

We review this issue of law de novo. See Tisdale v. City of Cumming, 326 Ga. App. 19, 20 (755 SE2d 833) (2014). Following her arrest in February 2013, Donna Mantooth was charged with DUI per se (OCGA § 40-6-391 (a) (5)) and an open container violation (OCGA § 40-6-253). Because of Mantooth’s relationship to a member of the Cobb County Solicitor-General’s staff, the Cobb County Solicitor-General (the “Solicitor-General”) recused himself and notified the Attorney General of Georgia, pursuant to OCGA § 15-18-65, of his office’s conflict of interest in this case. The Attorney General then appointed the DeKalb County Solicitor-General to act as a solicitor-general pro tempore in the case against Mantooth. More than two years later, Mantooth moved to vacate the Solicitor-General’s recusal, arguing that there was no actual conflict of interest and that he had recused himself without a hearing or the defendant’s consent. Following a hearing, the trial court granted Mantooth’s motion and also granted the State a certificate of immediate review. We granted the State’s application for interlocutory review, and this appeal followed.

1. In its first enumeration of error, the State asserts that the trial court erred in granting Mantooth’s motion to vacate the recusal because a criminal defendant does not have standing to object to the recusal of a solicitor-general.

We turn first to the relevant legal framework. OCGA § 15-18-65 (a) provides:

When a solicitor-general’s office is disqualified from interest or relationship to engage in the prosecution of a particular case or cases, such solicitor-general shall notify the Attorney General of the disqualification. Upon receipt of such notification, the Attorney General shall request the services of and thereafter appoint a solicitor-general, a district attorney, a retired prosecuting attorney as provided in Code Section 15-18-30, or other competent attorney to act in place of the solicitor-general, or may designate an attorney from the Department of Law. The appointment of the solicitor-general pro tempore shall specify in writing the name of the case or cases to which such appointment shall apply.

The Georgia Rules of Professional Conduct make clear that it is the duty of the individual attorney to determine whether a conflict of interest exists, and if so, whether to decline representation. Rule 1.7 (a) provides:

A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).

Comment 1 to Rule 1.7 explains that “[l]oyalty and independent judgment are essential elements in the lawyer’s relationship to a client. If an impermissible conflict of interest exists before representation is undertaken, the representation should be declined.” And our Supreme Court has reiterated that “the primary responsibility for resolving questions of conflict of interest” rests with the lawyer undertaking the representation. Bernocchi v. Forcucci, 279 Ga. 460, 463 (2) (614 SE2d 775) (2005) (relying on Comment 15 to Rule 1.7).

Mantooth argues, nonetheless, that she has standing to challenge the order based on the State’s alleged failure to prove any legal basis for the recusal and further attempts to distinguish her case from those relied upon by the State that involved a “legitimate conflict of interest.” However, pretermitting whether the State can — or is even required to — prove that the Solicitor-General had a “legitimate” conflict of interest, Mantooth has shown us no legal authority supporting the proposition that a criminal defendant has standing to object to a prosecuting attorney’s voluntary recusal. Indeed, Georgia law dictates otherwise. This Court has specifically held that a defendant “does not have a substantive right to have his case tried by a specific prosecutor so as to make notice necessary in order to oppose the [solicitor-general]’s disqualification.” Nel v. State, 252 Ga. App. 761, 762 (1) (a) (557 SE2d 44) (2001). And we are aware of no other jurisdiction that permits a criminal defendant to choose his or her prosecutor. See Gonzales v. Rapelje, No. 06-CV-10191, 2015 U.S. Dist. LEXIS 44524 at *14-15 (E.D. Mich. April 6, 2015) (“Court is aware of no Supreme Court (or, for that matter, any) precedent establishing that a defendant’s right to counsel of choice extends to the right to choose a prosecutor.”).

Mantooth further argues that, even if her relationship to an employee presented a conflict, the Solicitor-General should have imposed an ethical screen around the employee rather than voluntarily recuse his entire office. However, that would require the Solicitor-General to remain in the difficult, position of having to zealously advocate for the conviction of the family member of an employee or face accusations of showing inappropriate favoritism. While implementing proper screening measures around a nonlawyer may be useful in preventing the improper sharing of confidential information, we believe the determination of whether screening measures would be sufficient in this case or whether recusal of the entire office is necessary is best left to the individual prosecuting attorney. Under the circumstances presented in this case, we will not second guess the Solicitor-General’s voluntary recusal. See Wilson v. State, 257 Ga. 352, 353 (359 SE2d 661) (1987) (counsel “is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial”) (citation and punctuation omitted). Because Mantooth does not have the right to challenge the Solicitor-General’s voluntary recusal, the trial court’s order granting her motion to vacate must be reversed.

2. Alternatively, the State also asserts that the trial court lacked legal authority to vacate the Attorney General’s administrative appointment of a solicitor-general pro tempore following the voluntary recusal of the prosecutor’s office pursuant to OCGA § 15-18-65 (a). We agree.

In addressing this enumeration, it is helpful to examine the prior iterations of the relevant statutory framework. Prior to 1996, the Official Code of Georgia Annotated did not specifically address the duties, powers, or responsibilities of the State’s chief prosecuting attorney in State Courts, then known as “solicitors.” Because there was “no specific statutory provision for disqualifying a state court solicitor and appointing a substitute to prosecute in his place,” courts found it “instructive to look to the statutory rules applying to district attorneys.” State v. Evans, 187 Ga. App. 649, 651 (3) (371 SE2d 432) (1988), overruled on other grounds, State v. Smith, 268 Ga. 75 (485 SE2d 491) (1997). Thus, relying on former OCGA § 15-18-5 (a), a presiding judge had the authority to appoint a temporary solicitor when the solicitor was absent, indisposed, or disqualified. See Cramer v. Spalding County, 261 Ga. 570, 574 (4) (409 SE2d 30) (1991). And the trial judge had the authority to disqualify the prosecuting attorney, although that authority was not unbounded. See, e.g., State v. Davis, 159 Ga. App. 537, 538-39 (2) (284 SE2d 51) (1981) (trial court erred in disqualifying the district attorney for moving to nol-pros the indictment) .

Effective July 1, 1996, the General Assembly comprehensively revised the laws regarding the office of state court solicitor, renaming the office that of “solicitor-general.” See State v. Risk, 222 Ga. App. 729, 731 (1), n.3 (476 SE2d 50) (1996); OCGA § 15-18-60 et seq. Pertinent to this case, one of the changes enacted by the General Assembly was the adoption of a new process for appointing a solicitor-general pro tempore after a voluntary recusal. See OCGA § 15-18-65 (a). And after the 2002 revisions to OCGA § 15-18-5, to track the language of OCGA § 15-18-65, the only mechanism for appointing either a substitute district attorney or solicitor-general after a voluntary recusal is that contained in those statutes, i.e., the prosecuting attorney must notify the Attorney General of the disqualification, who is the only person then authorized to appoint a substitute prosecuting attorney pro tempore. Thus, following the General Assembly’s comprehensive revisions, the trial court no longer enjoys the same authority it once did in disqualifying and appointing substitute prosecuting attorneys.

Although subsection (d) of OCGA § 15-18-65 recognizes that trial courts retain the inherent authority to disqualify an attorney who is legally disqualified, they no longer have the same discretion to do so and must “specify the legal basis of such order” which is then subject to interlocutory appellate review. Tellingly, there is no similar language contained in subsection (a) of this statute granting trial courts any authority to intervene in the voluntary recusal and subsequent appointment of a substitute solicitor-general through the Attorney General’s office. We also note that, under the plain language of OCGA § 15-18-65 (a), neither the solicitor-general nor the Attorney General is required to provide a “legal basis” for the disqualification of a solicitor-general.

Decided July 1, 2016.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor-General, for appellant.

Cindi L. Yeager, for appellee.

Daniel J. Porter, District Attorney, Tracy Graham Lawson, District Attorney, Rebecca L. Grist, Solicitor-General, Charles A. Spahos, Charles C. Olson, Robert W. Smith, Jr., Gary D. Bergman, amici curiae.

Accordingly, because the trial court lacks authority to vacate the Attorney General’s appointment of a prosecuting attorney pro tem-pore, the trial court’s order granting Mantooth’s motion to vacate the recusal must be reversed on this ground as well. See In re Tidwell, 279 Ga. App. 734, 741 (3) (632 SE2d 690) (2006) (trial court’s appointment of substitute prosecuting attorney was in error).

3. Because we reverse the trial court’s order for the reasons set forth in Divisions 1 and 2, we need not address the State’s remaining enumerations of error.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

       We note that a joint amicus curiae brief has been filed by the Prosecuting Attorneys’ Council of Georgia, the District Attorneys’ Association of Georgia, and the Georgia Association of Solicitors-General.

       This statute served as the model for the 2002 revision of OCGA § 15-18-5 providing for the recusal or disqualification of district attorneys. See Ga. L. 2002, p. 1211, § 1 (SB 276).

       In addition, a solicitor-general is required to swear an oath that he “will well, faithfully, and impartially and without fear, favor, or affection discharge [his] duties as solicitor-general. . . .” OCGA § 15-18-61.

       We note that the Supreme Court also held that opposing counsel may raise the question “where the conflict is such as clearly to call into question the fair or efficient administration of justice.” (Citation and punctuation omitted.) Bernocchi, 279 Ga. at 463 (2) (cautioning that such objections should be viewed with caution as they can be misused for purposes of harassment). However, we do not read this holding to include the reverse, i.e., that a party may challenge opposing counsel’s determination that a conflict does exist, and decline to extend the Supreme Court’s holding here.

       See Hodge v. URFA-Sexton, LP, 295 Ga. 136, 140 (1) (758 SE2d 314) (2014).

       We also express no opinion as to the reverse situation — whether a screening measure would have been sufficient if the Solicitor-General had elected not to recuse.

       See OCGA § 1-3-1 (a) (“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”); Evans v. State, 334 Ga. App. 104, 106 (778 SE2d 360) (2015).

       Former OCGA § 15-18-5 provided, in part:
      (a) When a district attorney is absent, indisposed, or is disqualified from interest or relationship to engage in a prosecution, the presiding judge, as the emergency, in his discretion, requires, may:
      (1) Appoint a competent attorney of the circuit to act in his place;
      (2) Command the services of a district attorney of any other accessible circuit; or
      (3) Make a requisition to the Governor for the service of the Attorney General.

       See Ga. L. 1996, pp. 748, 749, § 2.

       See Bernocchi, 279 Ga. at 463 (2) (trial court may sua sponte raise the question of a conflict of interest when it appears the attorney has neglected his responsibility to resolve such questions).

       OCGA § 15-18-65 (d) provides:
      Any order entered by a court disqualifying a solicitor-general’s office from engaging in the prosecution shall specify the legal basis of such order. The solicitor-general may, on behalf of the state and prior to the defendant in a criminal case being put in jeopardy, apply for a certificate of immediate review as provided in Code Section 5-7-2, and such order shall be subject to appellate review as provided by Chapter 7 of Title 5.

       We reject Mantooth’s contention that unlimited voluntary recusals by a prosecuting attorney would allow prosecutors to pick and choose who their offices elect to prosecute. Other remedies exist to address a public official, such as a district attorney or solicitor-general, who fails to perform the duties of his or her office.


author: BARNES, Presiding Judge.

text:
    A16A0344, A16A0345.
    BROWN v. TUCKER; and vice versa.
    (788 SE2d 810)
   BARNES, Presiding Judge.

Tisha Tucker was a passenger in a pickup truck driven by Tammy Brown when Brown struck a tractor-trailer rig parked by the road. Tucker sued Brown for her resulting injuries, and Brown identified the tractor-trailer driver as a nonparty against whom the jury should apportion fault. After trial, the jury returned a verdict of $2 million, apportioning 40 percent fault to the tractor-trailer driver and 60 percent to Brown. The trial court subsequently awarded Tucker an additional $533,180 in attorney fees and expenses of litigation under the offer of settlement statute, OCGA § 9-11-68 (d).

Both parties have appealed. Brown enumerates seven errors related to evidentiary issues, jury charges, and the court’s response to a jury question regarding apportionment. Tucker enumerates three errors, all of which relate to her contention that the trial court should have granted her motion for a directed verdict of 100 percent liability against Brown. For the reasons that follow, we affirm.

The evidence before the jury included the following: Passenger Tucker called Driver Brown on cross-examination, and Brown admitted that, before the collision, the sun had been in her eyes so badly that she could not see in front of her; that she did not put her visor down, shield her eyes with her hand, or don sunglasses, and that she continued driving for some distance without being able to see where she was going. She further admitted that she first saw the tractor-trailer after she hit it, and that if she had seen it, she could have avoided it. The jury then made a site visit.

Next, an eyewitness to the collision testified that he saw the tractor-trailer pulling out of a neighbor’s driveway and heard it sputtering “like something was wrong with the motor.” He heard the tractor cut off, saw where the rig was parked, looked down, and looked up to see Brown’s pickup truck hit the back end of the flatbed trailer. According to the witness, the back tire was on the fog line and the back end of the trailer was sticking about a foot and a half into the road. The tractor would not start, and the witness testified that, although a driver paying attention could have avoided hitting the trailer as it sat, he retrieved his bulldozer and pushed the back end of the trailer completely out of the road anyway because the wrecked pickup truck created a distraction.

A second witness testified that she heard the tractor’s engine making “spitter spatter” noises as it drove up the driveway across the street and pulled onto the side of the road. The driver got out, the witness turned away, and one to five minutes later she heard a “big boom” when Brown’s pickup hit the trailer. She testified that the trailer had been protruding only a few inches into the road before it was moved.

A third witness testified that he heard the collision and ran out to assist the pickup truck occupants and assess the scene. Brown had stepped out of the truck but her two passengers were still inside, and after the witness wrenched the passenger door open, Tucker’s arm fell a little and “blood poured out of the jacket” she was wearing. The witness wrapped his shirt around her arm and waited with both passengers until the ambulance came. He testified that a small section of the trailer was a few inches over the fog line into the road when Brown hit it.

Tucker testified that Brown had been driving Tucker back to her mother’s house with Brown’s daughter-in-law, Brooke Roberson, sitting between Brown and Tucker. Tucker noticed the parked tractor-trailer ahead on the side of the road ahead of them but was looking out the window daydreaming when Brown hit it. The EMT who treated Tucker at the scene and the surgeon who operated on her lacerated finger, broken arm, and dislocated elbow both testified about Tucker’s injuries.

After Tucker rested her case, the defense called three deputy sheriffs who had responded to the scene, Roberson, and the state trooper who was in charge of investigating the collision. The trooper testified about his training and experience and his conversations with Brown and Lee Patterson, who had identified himself as the driver of the tractor-trailer rig, which was owned by someone else. After describing his physical investigation, the trooper concluded that in his opinion the tractor-trailer had not been parked completely off the roadway when Brown hit it and that Brown had not been speeding. Brown was not called to testify on direct.

Case No. A16A0344

1. Brown argues that the trial court erred in granting Tucker’s motion in limine to exclude the state trooper’s opinion testimony that the cause of the collision was the tractor-trailer’s protrusion into the roadway, rather than Brown’s inability to see where she was going. After the trooper testified about his investigation, the jury was excused, and Brown made a proffer of the trooper’s testimony Brown asked the trooper, “Combining all the factors you talked about so far,... were you able to reach a conclusion in your mind as to what the cause of the accident was?” The trooper answered yes, and this exchange followed:

Q: Based on your experience and training, what opinion, if any, do you have as to what the cause of this accident was?
A: Okay. The parked tractor-trailer being partially in the roadway.
Q: Why is that?
A: The roadway is 20 feet wide. If you are negotiating a curve and you come around a curve and you don’t see something that is partially in the roadway, you’re going to hit it. And that’s basically what happened in this accident here.
Q: Did the sun figure into that at all?
A: The sun did figure in. It’s setting in the west, and if you got sunlight in your eyes while you’re negotiating a curve, it could possibly happen.

Tucker’s objection to this proffered testimony was that “opinions suchas [‘jifyou don’t see something in the roadway, you’re going to hit it[’] are certainly something that’s within the [ken] of the jury,” and that “it was not beyond the jury’s ability to weigh the position of the truck versus the effect of the sun.” The trial court agreed. It reasoned that the evidence presented during the trial clearly presented the question of how much the tractor-trailer in the roadway and how much the sun in Brown’s eyes caused or contributed to the collision. Sustaining Tucker’s objection, the court found that the last questions quoted above clearly went to the ultimate issue in the case, which was as easily determined by the jury as by the trooper.

We review a trial court’s evidentiary determinations only for abuse of discretion. Whitlock v. Moore, 312 Ga. App. 777, 779 (1) (720 SE2d 194) (2011). Brown argues that the trial court abused that discretion by sustaining Tucker’s objection to the proffered opinion testimony, which she argues was admissible because it was based on both the trooper’s examination of physical evidence at the scene and on witness interviews.

Generally, an officer with investigative training and experience may relate his opinion about the events that led to a vehicular collision, based on his observations, and may even testify about an ultimate issue if his conclusion exceeds the average juror’s ken and is not a determination of fault. Fortner v. Town of Register, 289 Ga. App. 543, 545-546 (1) (657 SE2d 620) (2008).

The trooper in this case did testify that in his opinion, based on his investigation, the trailer that Brown struck was protruding some distance into the road, and the sun was in Brown’s eyes. His conclusion about these factors was a proper matter for his testimony, as was the opinion of the investigating officer in Fortner that the decedent’s failure to stop at a stop sign was “a contributing factor to the accident.” 289 Ga. App. at 545 (1). But the jury in this case did not require an expert’s opinion regarding whether the tractor-trailer’s location was “the” ultimate cause of the collision.

Although an experienced police officer can be qualified as an expert to give opinion testimony about the cause of a traffic accident, it remains settled law in Georgia that expert opinion testimony is unnecessary and improper if a jury would be able to ascertain the cause of the accident on its own and without any such testimony.

(Citation omitted.) Whitlock, 312 Ga. App. at 779-780 (1).

Brown argues that the officer’s testimony in this case was admissible because it was based on his personal investigation in addition to witness statements, unlike the properly excluded evidence in Whitlock, 312 Ga. App. at 778-780 (1), and the erroneously admitted evidence in Purcell v. Kelley, 286 Ga. App. 117, 118 (1) (648 SE2d 454) (2007). This argument misses the point, which is that in this case, whether the collision was caused by the placement of the parked tractor-trailer, by Brown continuing to drive when she could not see where she was going, or by a combination of these factors was not an issue that a layperson needed expert opinion to decide. Thus, the trial court acted within its discretion in excluding the proffered testimony In contrast, the officer’s opinion about where the tractor-trailer was located before the collision and the degree to which the sun could have been in Brown’s eyes was properly admitted by the trial court, because those conclusions were based on the officer’s application of his expert knowledge to the physical evidence at the scene. See Kennebeck v. Glover, 294 Ga. App. 822, 823-825 (1) (670 SE2d 459) (2008) (no error in trial court allowing investigating officer to testify, in response to a hypothetical, that if defendant had been driving 20 miles over the speed limit when he hit plaintiff, he had been driving too fast for conditions).

2. Brown contends that the trial court erred in excluding evidence that Tucker had hired an expert but chose not to call him, asserting that the jury could have reasonably inferred from Tucker’s failure to call the expert that the expert’s report must have been unfavorable to Tucker. Again, we review this decision for abuse of discretion. Whitlock, 312 Ga. App. at 779 (1).

Tucker formally withdrew her designation of an expert witness and filed a motion in limine to exclude evidence that she had previously hired him or had failed to call him to testify. The trial court initially denied the motion, but reconsidered before Brown’s expert accident reconstructionist testified. Brown sought to introduce evidence through her expert that Tucker had hired a different, expert, and then “let [the jurors] draw whatever inferences they want to draw.” After further consideration, the trial court ruled that the issue of who hired an expert had nothing to do with the issue before the jury, which was to determine the proximate cause or causes of the accident. Brown then stated her understanding that the court was ruling she “was not allowed to mention” Tucker’s former expert, and the court clarified that Brown could not mention Tucker’s “hiring of an earlier expert that [she] did not call.” During the testimony of Brown’s accident reconstruction expert, Brown did not ask the expert to identify all the material he had relied on to form his opinions, although he did testify outside the jury’s presence that he had relied on material from Tucker’s former expert to form his own opinion.

Brown argues that the trial court abused its discretion by not allowing her to introduce evidence that Tucker had hired an expert she did not call as a witness. She contends that under the authority of Blige v. State, 264 Ga. 166, 168 (2) (441 SE2d 752) (1994) (Blige 4) and Blige v. State, 263 Ga. 244, 245 (2) (430 SE2d 761) (1993) (Blige 2), she should have been allowed to introduce foundation evidence that Tucker had hired an expert but did not call him and to argue the negative inference arising from Tucker’s failure to call that expert. These cases relied on Sabel v. State, 248 Ga. 10, 18 (6) (282 SE2d 61) (1981), in which the Supreme Court interpreted the reciprocal criminal discovery statute, former OCGA § 17-7-211 (b), as requiring an expert hired by a criminal defendant to reduce his opinions to a written report and give it to the State, even if the expert’s conclusions were unfavorable and the defendant elected not to call him. That portion of Sabel was overruled three years later, however, when the Supreme Court of Georgia noted that “the discovery rights granted to the [S]tate under Sabel [were] not reciprocal, but [were], in fact, greater than the statutory discovery rights granted to the defendant” because the State was not required to make its experts put their opinions into reports and give them to the defendant. Rower v. State, 264 Ga. 323, 325 (5) (443 SE2d 839) (1994). Citing due process concerns, the Supreme Court instead concluded that “with regard to scientific reports, the [S]tate is entitled to only those discovery rights specifically granted to the defendant by OCGA § 17-7-211.” Id.

This court has a long line of condemnation cases addressing whether a party may place the opinions of an opposing party’s former expert before the jury We have held that such an expert is subject to subpoena regardless of who initially hired him, but that all questions relating to the expert’s previous employment by the opposing party were irrelevant and inadmissible. Logan v. Chatham County, 113 Ga. App. 491, 492-493 (1), (2) (148 SE2d 471) (1966).

The Supreme Court in Blige 4 held that, generally, the fact that an expert witness had been originally employed by the opposing party was not pertinent to the issues in the case. 264 Ga. at 167 (2). The State further argued that the identity of the expert’s original employer was relevant to the witness’s interest, citing former OCGA § 24-9-68, which provided that “[t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury,” but the court responded that the statute could not be considered in a vacuum. Id. Evidence relating to a witness’s credibility is only relevant to attack or rehabilitate the witness’s credibility, and in Blige 4, the State had called the expert to testify for the State. Id. The State obviously had no interest in impeaching its own witness and the defendant had not attacked the witness’s credibility, and therefore the witness’s prior employment by the defendant was inadmissible.

Finally, in Blige 4, the State argued that the Logan rule, that a party cannot ask his own witness about having been previously employed by the opposing party, was inconsistent with Sabel’s holding that

[i]f the defendant does not call the expert as a witness, the [Sjtate may call the defendant’s ... [witness] without adding his or her name to the list of witnesses, or may argue to the jury that the defendant would have called the expert had the result of the testing been favorable to the defendant.

Blige 4, 264 Ga. at 168 (2), citing Sabel, 248 Ga. at 18 (6). The court in Blige 4 concluded that these two holdings were not inconsistent, because under Sabel, the State was required to elect between calling the witness or arguing the inference arising from the defendant’s failure to call the witness, but not both, as the State wanted to do in that case. 264 Ga. at 168 (2).

In Rower, decided less than two months after Blige 4, after overruling Sabel's requirement that a criminal defendant was required to make his expert witnesses reduce their opinions to writing and share that with the State, the Supreme Court held, simply, “With regard to the [S]tate’s right to call [the defendant’s] expert witnesses as its own, or to argue the inference arising from [the defendant’s] failure to call his own experts, see Blige v. State, 264 Ga. 166 (441 SE2d 752) (1994).” Rower, 264 Ga. at 325 (5).

According to Blige 4, 264 Ga. at 168 (2) and Rower, 264 Ga. at 325 (5), the State may argue in closing that the jury may draw a negative inference from a criminal defendant’s failure to call as a witness an expert whom the defendant previously hired. We have found no further discussion of the issue in any cases from the Supreme Court of Georgia, criminal or civil. But see ABM Realty Co. v. Bd. of Regents of the Univ. System of Ga., 296 Ga. App. 658, 662 (2) (675 SE2d 549) (2009) (no error in granting motion in limine to exclude property appraisal “with reference to the fact that the appraisal had been made on behalf of the [moving party] ... because a party is not bound by the rejected opinions of its expert witnesses”). See also H. D. McCondichie Properties v. Ga. Dept. of Transp., 280 Ga. App. 197, 198 (1) (633 SE2d 558) (2006) (“The issue of who hired a particular expert had nothing to do with the questions being tried, and the trial court properly excluded this evidence at trial.”); Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 84-85 (4) (532 SE2d 159) (2000) (whether opposing counsel had hired expert in other cases was not proper rehabilitation evidence during voir dire on expert’s qualifications); Jones v. Scarborough, 194 Ga. App. 468, 470-471 (3) (390 SE2d 674) (1990) (opposing party’s former expert could have been deposed and questioned at trial about his observations of that party, although his original employment “was not pertinent and could not have been brought out”).

Pretermitting whether the trial court erred in not permitting Brown to argue that Tucker had hired a particular expert that she did not call to testify on her behalf, we find no reversible error. Brown’s accident reconstruction expert testified that, in his opinion, the tractor-trailer had been protruding about two feet into the road, and that Brown had not continued driving while sun-blind for as long as Tucker argued she had. Further, Brown argued in closing that Tucker had failed to rebut the opinions presented by Brown’s accident reconstructionist as follows:

We called an expert. They could have called an expert. They didn’t not [sic] call an expert in this case to come in and say where those skid marks started, where the impact was. The only expert you’ve heard from from this side is [Tucker’s lawyer]. And I suggest to you he’s not an expert. He’s a lawyer. You only heard the science according to [Tucker’s lawyer].

The jury ended up apportioning a significant percentage of damages, 40 percent, to the tractor-trailer driver, and after reviewing the evidence, we conclude that the trial court’s decision not to allow Brown to argue a negative inference arising from Tucker’s failure to call her previously hired expert is not reversible error.

Brown also argues that her expert “should have been allowed to truthfully disclose the materials that he reviewed in forming his opinions,” which included the deposition and investigative material of Tucker’s expert. But the trial court did not rule that Brown was precluded from asking her expert about the evidence he relied on to form his opinions about the case. The trial court was very specific in holding only that Brown could not ask her own expert about the fact that Tucker had hired a different, expert, and, as Tucker noted in her responsive brief, Brown waived this argument because she never tried to introduce evidence that her expert had relied on material supplied by Tucker’s former expert.

3. Brown asserts that the trial court erred in allowing Tucker to elicit evidence from the second passenger, Brown’s daughter-in-law Brooke Roberson, “regarding a personal injury settlement,” pointing out that evidence about liability insurance is inadmissible in tort cases. OCGA § 24-4-411 prohibits the admission of evidence that someone was or was not insured against liability in a civil damages case not involving a common carrier, unless the evidence is offered for a relevant purpose and the trial court “finds that the danger of unfair prejudice is substantially outweighed by the probative value of the evidence.”

Here, the trial court considered the issue before trial began. It heard portions of Roberson’s deposition, including her testimony that she had received a letter from Brown’s insurance company saying “this is how much my medical bills [were], this is how much went to it, and this is how much I’ll be getting. And since I had just had a baby that five hundred something was perfect.” Roberson also testified in her deposition that she thought Tucker had sued the wrong party and that the truck driver was responsible for the wreck. Roberson’s testimony regarding how long she was blinded by the sun before the collision varied from “a few minutes” to less than 15 seconds, to almost immediately (“[I]t was like, can’t see, then boom, spinning. And then oh, look there’s a truck there.”).

The trial court found that whether Roberson had received money from Brown was relevant to her credibility, but also found that injecting the issue of insurance would be prejudicial to Brown. Before Roberson took the stand, the trial court again considered the issue and found that the value of allowing Tucker to ask limited questions about money she had received substantially outweighed the prejudice of having the jury possibly assume that Brown was insured.

Brown argues on appeal that the trial court abused its discretion in determining that the probative value of the evidence substantially outweighed the prejudice of allowing Tucker to introduce evidence of insurance.

No Georgia cases have yet addressed the application of OCGA § 24-4-411, but the proposition that a trial court must balance the prejudicial effect of liability insurance evidence with its probative value is not new.

The rule that the plaintiff be allowed the right of a thorough and sifting cross examination must be balanced against the rule that irrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out.

Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 830 (3) (212 SE2d 638) (1975); see also Morrison v. Kicklighter, 329 Ga. App. 630, 634 (2) (d) (765 SE2d 774) (2014) (physical precedent only). On the other hand, a party is entitled to explore any issues that may affect an opposing witness’s credibility or show bias. Presswood v. Welsh, 271 Ga. App. 459, 461 (3) (610 SE2d 113) (2005); Ayers v. Nichols, 136 Ga. App. 532 (1) (221 SE2d 835) (1975).

In this case, the jury heard no direct evidence regarding Brown’s liability insurance, only that Roberson had received money to settle any claims she had against Brown and that the truck driver had not paid her any money The trial court allowed Tucker to ask Roberson only whether she had accepted money to release her claims against Brown (she had); whether the money she received had helped her take care of her new baby (it had); and whether she was given money by nonparty truck driver Patterson or anyone else to release her claims (she had not been). We find no abuse of discretion in the trial court’s ruling, which balanced Tucker’s interest in showing that Roberson could possibly be biased against Brown’s interest in excluding evidence from which a jury could possibly assume she had insurance coverage, and found that the evidence of bias substantially outweighed the evidence of unfair prejudice.

While Brown also argues that any interest Roberson had in the trial’s outcome was established by evidence of her relationship to Brown, and not by evidence that she had previously received money from Brown to settle any claims against her, that argument goes to the weight of the evidence to show bias and not to its admissibility See Robert Stovall Family, L.P. v. Carroll County Water Auth., 255 Ga. App. 223, 224-225 (564 SE2d 763) (2002).

4. Brown argues that the trial court erred in charging the jury that the defendant had the burden of proving the negligence of the nonparty truck driver by a preponderance of the evidence. We review a trial court’s jury instructions as a whole, de novo, for legal error. Eagle Jets v. Atlanta Jet, 321 Ga. App. 386, 398 (6) (740 SE2d 439) (2013).

In its preliminary charge, after instructing the jury that Tucker had the burden of proving her case by a preponderance of the evidence and defining what that meant, the trial court instructed the jury regarding Brown’s burden of proof as to the nonparty truck driver as follows:

Now, the defendant has filed an issue which is known as an affirmative defense to the claims of the plaintiff. Specifically, there is a nonparty person that they are claiming has some responsibility here. As to that defense, the defendant bears the burden of proof by a preponderance of the evidence.

In the trial court’s final charge, after instructing the jury that Tucker had to prove her case by a preponderance of the evidence and explaining what that meant, the trial court continued:

Defendant Tammy Brown has filed what is known as an affirmative defense to the Plaintiff Tisha Tucker’s claim. Specifically, Defendant Tammy Brown alleges that Lee Patterson[,] who is not a party to this action[,] cause[d] or contributed to the damages claimed by Tisha Tucker. As to that defense, Defendant Tammy Brown bears the burden of proof by a preponderance of the evidence.

The trial court then gave further instructions regarding circumstantial and direct evidence, deposition testimony, expert witnesses, credibility, and impeachment, among others, before beginning the charges on proximate cause. The court then stopped, sent the jury out, and conferred with the parties. When the jury returned, the court charged them as follows:

The case before you is one in which the Plaintiff must prove by a preponderance of the evidence that the negligence of the Defendant, if any, was a proximate cause of the injuries to the Plaintiff.
Now, for you to consider the negligence of the nonparty Lee Patterson, the Defendant must prove by a preponderance of the evidence that the negligence of Lee Patterson, if any, was a proximate cause of the injuries to the Plaintiff.

The court then defined proximate cause and ordinary negligence, noting that the ordinary negligence standard applied to both Brown and nonparty Patterson.

While Brown argues that she asked the court to charge the jury that she had the burden of showing a rational basis for apportioning fault to the nonparty, she cites to no written request to charge on the defendant’s burden of proof regarding a nonparty In her brief, Brown cites to a discussion between the court and parties before the court’s preliminary charge to the jury, before opening statements, although the source of the language to which Brown objected is unclear, and also cites to the court’s preliminary charge itself. She does not cite to or otherwise address the final charge on the issue, her objections to it, if any, or either party’s written requests to charge, leading this court on a lengthy snipe hunt through the 35-volume record for the information. On this ground alone, we find no merit to Brown’s enumeration. See Jones, Martin &c. v. Westrex Corp., 310 Ga. App. 192, 198 (3) (b) (712 SE2d 603) (2011) (“Without knowing the precise charge requested, we cannot review the trial court’s denial of that request”; further, “absent a written request to charge or [substantial error harmful as a matter of law], we will not reverse for failure to give an instruction.”); Sanders v. Bowen, 196 Ga.App. 644, 646-647 (3) (396 SE2d 908) (1990) (absent record citation to charge and objection, issue is waived).

Absent a written request to charge, we review the propriety of the trial court’s instructions to determine whether the court made a substantial error that was harmful as a matter of law. OCGA § 5-5-24 (c); Pendarvis Constr. Corp. v. Cobb County-Marietta Water Auth., 239 Ga.App. 14, 16-17 (2) (520 SE2d 530) (1999) (charge shifting burden of proving value from condemnor to condemnee reversible error despite condemnee’s failure to object). Upon review, we find no substantial error here.

“The burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.” OCGA § 24-14-1. A defendant’s claim that a nonparty is liable for all or some of the plaintiff’s damages is an assertion of fact, the existence of which is essential to the defense. As an affirmative defense, the defendant bears the burden of proving her assertion of fact. See Metropolitan Publishers Representatives v. Arnsdorff, 153 Ga. App. 877, 878 (1) (267 SE2d 260) (1980) (affirmative defense that plaintiff had to remain employed to receive commissions was a factual issue on which the defendant bore the burden of proof). Generally, a defendant raising an affirmative defense admits the essential facts of a plaintiff’s complaint, “but [then] set[s] up other facts in justification or avoidance, or other special matters not merely elaborating or explaining a general denial,... the burden of proving which by a preponderance of the evidence will rest on the defendants.” Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 827 (a) (187 SE 194) (1936).

A defendant need not necessarily concede the essential facts of the plaintiff’s claim to raise a burden-shifting affirmative defense, however. A defendant may deny the essential facts asserted and also claim in the alternative that, if the plaintiff had been injured, the injury was due to causes other than the defendant’s actions. For example, when a plaintiff sued the driver of a car for her son’s wrongful death, the defendants denied liability but also contended that the child’s death was proximately caused by him dashing into the street. McCrackin v. McKinney, 52 Ga. App. 519 (183 SE 831) (1936). This defense was more than a simple denial of negligence, causation, and damages, and once the plaintiff had made out her prima facie case, “the burden rested upon the defendants ... to show by a preponderance of the evidence, in order to sustain their plea, that the plaintiff’s injuries were causedby her own negligence.” Id. at 521. The trial court properly charged the jury that

when the defendants deny an allegation made by the plaintiff, the burden rests upon the plaintiff to establish the truth of such allegations as may be denied by the defendant; but where the defendants set up an affirmative defense, the burden rests upon the defendants to establish the truth of such affirmative defense by a preponderance of evidence.

Id. at 520.

The affirmative defense that the jury should apportion fault against someone other than the defendant is no different analytically from the defense of contributory negligence. Once the plaintiff establishes her prima facie case, the defendant seeking to establish that someone else bears responsibility for the damages has the burden of proving that defense. See Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 679 (6) (278 SE2d 100) (1981).

Brown’s only support for her proposition that the defendant need only show a rational basis for apportioning fault is Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 272-273 (1) (740 SE2d 672) (2013). But the issue decided in Levine was whether the trial court erred in granting summary judgment to the defendant on the plaintiff’s count seeking damages for the total destruction of the business. The trial court granted this motion on the ground that the plaintiff had failed to establish how its damages should be apportioned between the defendant and the nonparty defendants with whom the plaintiff had settled. Id. at 271 (1). In reversing, this court held that, while the apportionment statute directs the jury to consider the negligence or fault of a nonparty that had settled with the plaintiff, OCGA § 51-12-33 (d) (1), at the summary judgment stage, the plaintiff need only establish that the defendant’s “alleged actions were the proximate cause of an approximate amount of damage.” Levine, 321 Ga. App. at 272 (1).

Further, charging the jury that the defendant must establish only a “rational basis” for finding a nonparty at fault would give the jury no guidance about how much evidence the defendant must produce to meet her burden of assigning fault to a nonparty. The “rational basis” test is most often applied when analyzing whether a statute violates a constitutional right to substantive due process and equal protection. See, e.g., State v. Nankervis, 295 Ga. 406, 408 (1) (761 SE2d 1) (2014) (“Unless governmental action infringes upon a fundamental right or the complaining party is a member of a suspect class,” the reviewing court “will uphold the statute if, under any conceivable set of facts, the classifications drawn in the statute bear a rational relationship to a legitimate end of government not prohibited by the Constitution.”). This is, of course, not the context applicable to this case involving apportionment of fault between a defendant and a nonparty defendant.

Additionally, the Supreme Court of Georgia case to which Levin e cites for its “rational basis” proposition addressed only the threshold question of whether a jury could even consider the “fault” of a criminal nonparty defendant in a premises liability case. Couch v. Red Roof Inns, 291 Ga. 359 (729 SE2d 378) (2012). The Supreme Court in Couch did not hold that the defendant’s burden at trial was to show a rational basis for the apportionment of damages to a nonparty; it simply noted that the plaintiff’s argument that a negligent landowner could show no rational basis for apportioning damages between itself and a criminal assailant was a factual issue, not a legal one. Id. at 366 (1). While Levine further states that “it is the defendant’s burden to establish a rational basis for apportioning fault to a nonparty,” to the extent that statement can be read to mean that the trial court should charge a jury that the defendant’s burden of proof is the “rational basis” test, it is dicta. 321 Ga. App. at 272.

In sum, Brown’s apportionment claim was an affirmative defense. She therefore had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that his negligence proximately caused all or some portion of damages to the plaintiff. Accordingly, the trial court committed no error in charging the jury to that effect.

5. Brown contends that the trial court erred in declining to give her request to charge the jury that “the issue of liability turns on the use of reasonable care under existing conditions rather than on compliance with government regulations,” both initially and in response to a jury question asking whether it was illegal to park over the fog line onto the roadway. Brown elicited testimony from one of the responding deputies that no law prohibited parking where nonparty Patterson had parked the tractor-trailer. Later, during its deliberation, the jury submitted a written question to the trial court asking, “Is it unlawful for a vehicle to at any time park over the fog line? And, if so, how far into the road [is] that[ ] legal?” The trial court responded, “No. It is not a violation of the criminal law or the traffic law to park over the fog line.” Brown objected to the answer, arguing that the court should have recharged the jury on ordinary negligence and also should have given her request to charge that liability depended on the use of reasonable care under the conditions.

In support of her proposed charge, Brown cites Sinclair Disposal Svc. v. Ochoa, 265 Ga. App. 172 (593 SE2d 358) (2004), in which we affirmed the trial court’s denial of a request to charge that a garbage truck driver could not be found negligent for parking halfway into the road because he had testified that his hazard warning lights had been on. That request to charge was improper because, while a violation of Georgia’s Uniform Rules of the Road “presents a prima facie case of negligence per se” absent a valid defense, the opposite is not true, because “[c]ompliance with the rules does not necessarily demonstrate that a defendant exercised ordinary care.” Id. at 173.

Pretermitting whether Brown’s requested charge was substantially covered by the court’s charge and verdict form as a whole, any error in failing to give this charge was harmless. See Fulton Nat. Bank v. Marshall, 245 Ga. 745, 747 (267 SE2d 225) (1980). By apportioning 40 percent fault to the nonparty defendant tractor-trailer driver, the jury clearly found that his “compliance with the rules” did not demonstrate that he exercised ordinary care.

6. Brown argues that the trial court erred in refusing to allow her to cross-examine Tucker about why her mother took pictures of her injured arm while she was in the hospital. Tucker affirmed in her deposition that one reason the pictures were taken was so she could use them later, if necessary, in a personal injury suit, and Brown argued that this evidence was relevant to show that “right then laying [sic] in that hospital bed, the Plaintiff in this case, confirming it in her own deposition, was already planning to file a lawsuit.”

“The trial court has a wide latitude of discretion in controlling the scope of cross examination and in the absence of an abuse of that discretion its exercise will not be controlled.” Temple v. Temple, 228 Ga. 73, 74 (184 SE2d 183) (1971). The trial court sustained Tucker’s objections, finding that the pictures had previously been admitted without objection when Tucker’s mother testified, and who took them or why they were taken was irrelevant. We find no abuse in the trial court’s discretion in sustaining the objection.

7. Finally, Brown contends that the trial court erred when it answered a jury question “by reading that part of OCGA § 51-12-33 . . . [that] states that the percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.” Brown reasons that reading this statute improperly indicated to the jury that Tucker would only recover those damages apportioned to Brown, asserting without citation to the record that the jurors “clearly adjusted their percentages of fault so as to ensure that Tucker received a certain amount of money.” Our review of the record reveals no evidence to support that assertion and no error in the charge.

The jury asked a total of three questions related to apportionment. The first two questions, which came after the jury deliberated for almost an hour and a half, were (1) “How would the percentage affect the amount of settlement?,” and (2) “On the percentages of fault, is this based on what the law is or what we, as a jury, feel that she was at fault?”

The trial court dismissed the jurors for lunch and consulted at length with the attorneys about how to answer those two questions. After the jury returned to the courtroom, the trial court first cautioned it not to speculate regarding the consequences of its verdict or make assumptions about matters not in evidence. The trial court responded to the first question, asking how the percentages affected the amount of damages, as follows:

Now, ladies and gentlemen, your job is, first of all, to set the total amount of damages that you feel like are appropriate for the damages incurred by Ms. Tisha Tucker. You are then, after that decision is made, you are then to go and determine how much fault, if any, was due to the defendant Brown and how much fault, if any, is due to the nonparty Patterson, Mr. Patterson. You are not to be concerned with anything else other than the latter questions. Do not reduce your total damages by any percentage of fault apportionment. The Court will take it from there.

In response to the jury’s second question (“On the percentages of fault, is this based on what the law is or what we, as a jury, feel that she was at fault?”), the trial court responded:

Now, your job is to apply the law and my instructions to the facts as you, the jury, find them to be by a preponderance of the evidence that has been presented to you. And the consequences of your verdict are matters to be addressed by the Court and the parties after you have reached your verdict on those issues at hand.

After deliberating for another three hours and twenty minutes, the jury asked to look at its first question to the court and also asked, “What does [‘]the percentage of fault[’] mean?” The trial court answered as follows:

Now, in assessing percentages of fault, you, the jury, shall consider the fault of all persons or entities who you feel contributed to the alleged injury or damages regardless of whether the person or entity was or could have been named as a party in the suit. [OCGA § 51-12-33 (c).]
Now, the assessment of percentages of fault of nonparties, which is Lee Patterson, should be used only in the determination of the percentage of fault of the named party. [OCGA § 51-12-33 (f) (1).] For example, if you determine that both Tammy Brown and Lee Patterson are at fault, then you, the jury, must determine how much each is at fault. And then the total of the two percentage[s] that you determine must be 100 percent.

Reviewing the jury charges de novo and as a whole, we find no error in the trial court’s response to the jury’s question. The portion to which Brown objects is a direct quote from the statute and a correct statement of the law. The trial court had already charged the jury that it was “required to report on [its] verdict form the percentage of fault born[e] by the Defendant, if any, and any negligent nonparty, if any.” The verdict form instructed the jury to write in the percentages of both Brown’s and Patterson’s fault and further said that the two percentages “must total 100%.” The verdict form being part of the charge, Cheddersingh v. State, 290 Ga. 680, 682 (2) (724 SE2d 366) (2012), and considering the charges as a whole, we find no error.

Case No. A16A0345

Tucker’s arguments in her cross-appeal all relate to her position that the trial court erred in failing to grant her motion for a directed verdict of liability solely against Brown. She contends that Brown’s admission that she was blinded by the sun when she struck the tractor-trailer required the trial court to find as a matter of law that Brown’s actions were the sole proximate cause of the collision; that the evidence showed the tractor-trailer driver stopped on the roadside due to a mechanical failure rather than voluntarily; and that Brown presented no evidence that the tractor-trailer driver breached a duty owed to Tucker that caused the collision.

8. Tucker first argues that the proper standard of review for her first two arguments is de novo rather than “any evidence,” because no evidence controverts Brown’s testimony that she could not see where she was going and hit the tractor-trailer, and no evidence indicates that the tractor-trailer driver had been negligent. She further contends that the “any evidence” standard applies in considering her argument that Brown presented no evidence of nonparty Patterson’s fault.

Tucker confuses these two standards of review.

[O]n appeal from the denial of a motion for a directed verdict, ... we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict. However, we review questions of law de novo.

(Punctuation and footnotes omitted.) Southland Propane v. McWhorter, 312 Ga. App. 812, 813 (720 SE2d 270) (2011).

Tucker is simply incorrect that “[r]egardless of any claimed negligence by anyone else, Brown’s admissions required a finding as a matter of law that her actions were the intervening, sole proximate cause of the collision.” Whether Brown or Patterson were negligent and if so, whether and to what degree their negligence proximately caused Tucker’s damages was precisely the question before the jury, even if Brown admitted that she was blinded by the sun. As this court has previously recognized, “a driver, however prudent he may be, must have time enough after being suddenly blinded [by the sun] to realize the situation with which he is confronted before he can be expected to stop his vehicle.” Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 776 (1) (101 SE2d 603) (1957).

9. All three enumerations fail if Brown presented any evidence that nonparty Patterson was negligent and that his negligence was a proximate cause of Tucker’s injuries. We thus consider whether any evidence supports the trial court’s denial of Tucker’s motion for a directed verdict.

Tucker’s first witness was Brown, whom she called for cross-examination. After completing the examination, Tucker moved for a directed verdict that Brown was 100 percent liable for Tucker’s damages. She argued that, even if there were evidence that the tractor-trailer driver was negligent, Brown’s “action of continuing to drive when she could not see [was] the sole proximate cause of this collision.” As Brown correctly noted in response at trial, this motion was premature, having been made before Brown had an opportunity to present any evidence at all. Tucker made a similar motion after Brown rested, which the trial court also denied.

On appeal, Tucker argues that “Brown’s negligence was the sole proximate cause of the collision,” and that the trial court therefore erred in denying her motion for a directed verdict of 100 percent liability against Brown. She likens the evidence to that presented in Wallace v. Yarbrough, 155 Ga. App. 184 (270 SE2d 357) (1980) and Brown, 96 Ga. App. 771. Neither case involved apportionment, however, and neither establishes that the trial court erred in this case.

In Wallace, 155 Ga. App. at 185 (1), we held that the trial court properly directed a verdict to a third-party defendant driver who stopped suddenly when a car pulled in front of her, after which the defendant driver struck the third-party defendant driver from behind. But the actions of the third-party defendant in quickly stopping her car in response to another car that had suddenly pulled in front of her are not analogous to nonparty defendant Patterson’s actions in leaving part of his rig protruding into the road, especially absent evidence showing why he did so. Neither Patterson nor the owner of the tractor-trailer rig whose driveway Patterson drove out of testified at trial.

Nor does Brown, 96 Ga. App. 771, establish error. In Brown, we held that the trial court properly sustained a general demurrer to a complaint alleging that the defendant Atlanta Gas Light failed to use ordinary care by negligently leaving loose dirt in the road while excavating for a gas line, which caused the plaintiff’s decedent to skid and flip his dump truck. Id. at 775 (1). The complaint excused the decedent’s failure to observe the dirt before he hit it by averring both that he had been blinded by the sun and that his vision had been partially obscured, but in granting the general demurrer, we held that, construing the averments most strongly against the pleader, the complaint showed that the decedent continued to drive while he “could not see the way ahead.” Id. at 776 (1).

Tucker argues that under the reasoning of Brown, 96 Ga. App. 771, the trial court was required to direct a verdict assigning sole proximate cause for the collision to Brown. But the analysis in Brown arose in the context of a pre-Civil Practice Act general demurrer, when a plaintiff had to plead a civil complaint with exacting particularity to survive. See generally PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 871 (1) (257 SE2d 285) (1979) (under technical rules of pleading in force before adoption of Civil Practice Act, a complaint failing to allege the adoption on the minutes of a contract with county was subject to general demurrer, but that pleading requirement did not survive passage of CPA); Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 605 (203 SE2d 173) (1973) (“[Ajdvent of the Civil Practice Act. . . abolished causes of action wherein the case had to be set forth fully in the pleadings.”).

Further, in this case, the evidence about how long and to what extent Brown was unable to see the road due to the setting sun consists of much more than a simple averment that she was blinded but continued to drive. Tucker asked Brown if she contended that the sun was in her eyes so brightly “at the point shown at Page 6 of Exhibit No. 2” (it is not clear from the record which point that is), and she replied, “The sun was in my eyes. But I was — I could see; but when I got on further around, I couldn’t see.” After Brown said she would have driven around the truck if she had seen it, Tucker asked, “So it’s not the truck that caused the collision; it was your failure to see the truck?” Brown responded, “No,” and further testified that if she had known there was something in the road she would have stopped and waited for the sun to go down.

When Tucker was asked if she had been bothered by the sun at any time before the collision, she responded, “Not at all.” Roberson, Brown’s other passenger, testified that the sun was not blinding when their pickup turned onto the road where the collision occurred. The sun did become blinding to her at some point before they hit the truck, but she was not sure how much time passed between then and the collision. In the last few seconds before the collision, Roberson said, she was “squinting her eyes” because the sun was in her face, and that affected her ability to see the trailer. It was not blinding her the entire time they were on the road, and did not render her completely unable to see.

The evidence presented did not demand a finding that Brown was the sole proximate cause of the collision, and the trial court did not err in denying Tucker’s motion for directed verdict to that effect.

10. Tucker’s final two arguments, that nonparty Patterson was not negligent as a matter of law, are similarly unavailing, regardless of whether it was legal for him to stop and park on the side of the road. A legal act can still be negligent, and unlike the facts presented in Brown v. Shiver, 183 Ga. App. 207, 208 (1) (358 SE2d 862) (1987), the facts in this case do not establish that Patterson had made reasonable efforts to start the stalled vehicle, that he had just retrieved it from a repair shop, that he had prior notice it was likely to stall, or that Brown could not have seen any warning indicators in time to avoid hitting the trailer. Brown’s testimony that she did not see the trailer before she hit it does not demand the conclusion as a matter of law that she still would not have seen it if Patterson had activated the tractor-trailer’s hazard lights or set up cones to warn oncoming traffic. One witness described the engine as making “spitter spatter” noises and going dead as Patterson drove it down the driveway Another witness testified that the tractor engine was “sputtering like something was wrong with the motor” as it pulled down the driveway toward the road, but Patterson kept driving until the rig was out of the driveway and the engine died. The witness also testified that the tractor-trailer owner decided to move the tail end of the trailer out of the roadway so no one else would hit it. As mentioned previously, the evidence indicated that the trailer was sticking somewhere between a few inches to two feet into the road before the owner used his bulldozer to push the trailer end completely out of the road.

The evidence did not establish as a matter of law that Tucker was entitled to a directed verdict that Patterson was zero percent at fault and Brown was 100 percent at fault. Accordingly, the trial court did not err in denying Tucker’s motion for a directed verdict.

Decided July 5, 2016.

Waldon, Adelman, Castilla, Hiestand & Prout, Daniel C. Prout, Jr., Denise D. Hoying, for appellant.

Brodhead Law, Ben C. Brodhead III, Jennifer S. Mundy, Ashley B. Fournet, for appellee.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       In Whitlock, the investigating officer simply repeated as fact the statements of witnesses describing the events that led to the collision, rather than investigating the physical evidence and drawing conclusions that required the application of expertise. 312 Ga. App. at 779 (1).

       In Purcell, the trial court erred in admitting the officer’s testimony that the defendant ran a red light, because that conclusion was based solely on witness testimony and the jury could determine for itself whether the witnesses were being truthful. 286 Ga. App. at 118 (1).

       Mr. Blige appealed two separate convictions for similar crimes, both of which were heard by both appellate courts, for a total of four appellate opinions.

       The current case was tried after the effective date of the revised Code of Evidence.

       This argument did not violate the trial court’s ruling on Tucker’s motion in limine. See Foskey v. William Bros. Trucking Co., 197 Ga. App. 715, 717 (2) (399 SE2d 484) (1990).

       The parties agreed that the jury meant to ask how the percentage of fault would affect the amount of any damages awarded rather than the amount of any settlement.

       Counsel indicated at oral argument that the tractor stopped because it had run out of gas, though that evidence was not presented to the jury.