author: Andrews, Judge.

text:
    A12A0976.
    A12A0977.
    A12A0978.
    FISHER v. THE STATE. LYNCH v. THE STATE. JADOORAM v. THE STATE.
    (732 SE2d 821)
   Andrews, Judge.

Niko Fisher, Bryant Lynch and Shammi Jadooram appeal after a jury found them guilty of numerous charges, including armed robbery, aggravated assault, false imprisonment, kidnapping, theft by taking and possession of a firearm during the commission of a crime. After reviewing the records we find no error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was that there were two armed robberies of convenience stores that occurred within twelve hours of each other. The participants in the first robbery were Lataliyia Ford, Mark Scott, T. J. Baugh, and Aleakeem Petersen. The participants in the second robbery were Ford, Petersen, Jadooram, Niko Fisher and his brother Jomandi.

The first robbery occurred when Petersen, armed with a gun, and Scott went into the Get N Fly convenience store while Ford and Baugh drove the car down the street to wait for them. After the robbery, Ford and Baugh picked up Scott and Petersen and drove to Ford’s house.

At some point, Scott and Baugh left the house and Jadooram, Lynch, Niko Fisher and Jomandi Fisher arrived. According to Ford, they began shooting dice and decided to go get “some more money.” Ford, Jadooram, Lynch, Niko Fisher, Jomandi Fisher and Petersen went to Jadooram’s house. Jadooram and Petersen went inside and came back with guns.

Ford and Jomandi Fisher stayed in the car while Petersen, Niko Fisher, J adooram and Lynch went to the Kangaroo convenience store. David Padgett, one of the victims, noticed the four men behind the store, all dressed in black, as he went into the store. Padgett told the cashier, Reba Knox, about the men, and Knox, Padgett, and Michael Hammack, a customer, went outside to see what was happening. The four men came up to Knox, Padgett and Hammack and forced them back into the store at gunpoint. They forced Padgett and Hammack to the floor, then took Hammack into a back room and stole his wallet. They told Knox to open the cash register. As she was trying to do so, she heard a gunshot and saw Padgett fall to the floor. Knox said that the man who shot Padgett came over to stand beside her, said “y’all think I’m playing with y’all?” and then fired the gun, grazing her neck. Three of the men took money out of the register and then all four left, taking Knox with them. The men forced Knox to get into Hammack’s car and drove away. They pulled into some apartments, let Knox go, left Hammack’s car, and got into the black Cadillac that Ford was driving. Jomandi Fisher testified that when he and Ford picked up Lynch, Jadooram, and Niko Fisher after the robbery, Lynch told them that Jadooram was the one who shot the victim.

Padgett testified at trial and said that he was shot before the men left the store with Knox. He stated that he crawled to the back of the store where the robbers had left Hammack and told Hammack that the men had gone. Padgett said that he suffered a gunshot wound to his spine, causing permanent paralysis.

The State presented evidence that the defendants stole a black bag from the Volvo belonging to Hammack, and also played a store surveillance tape for the jury. There was testimony that officers found ski masks, black stockings, and a .38 revolver in a bag hidden under a shed next to Jadooram’s house.

Niko Fisher was the only one of the defendants to testify at trial. He stated that although at first he went along with the decision to commit the robbery, he did not want to go through with it after they arrived at the Kangaroo store. Fisher said that Jadooram handed him a gun and when Fisher told him that he did not want to do it, Jadooram pointed a gun at him and told him to “go.” Fisher said he went in the store because he was afraid of Jadooram. Fisher testified that it was Jadooram who shot Padgett. Fisher admitted grabbing money from the cash register but said that Jadooram told him to do it. Fisher said Jadooram fired the gun at Knox and claimed that he was not part of the decision to take Knox with them when they left the store.

Although not enumerated as error, the evidence, as set out above, was sufficient for a rational trier of fact to find appellants guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Case No. A12A0976

1. In this case, Niko Fisher argues that he did not receive a full panel of qualified jurors at which to direct his peremptory strikes. He contends that the trial court erred in not granting appellants’ motions to excuse jurors Hughes and Franklin for cause.

The transcript shows that following voir dire of the first panel, all three defense counsel moved to have jurors Donehoo, Franklin and Hughes removed for cause. Donehoo stated that his aunt worked with Padgett’s aunt; he had heard the case being discussed; and, he had also read about the case in the newspaper. Franklin stated that he had followed the case in the news and had been threatened at his place of business by someone who said he was going to kill him. When asked if he would have difficulty deciding this case because of that incident, Franklin responded, “A little bit.” Hughes said that she worked with Padgett’s aunt and she was not sure that she could be impartial.

The court then questioned those three jurors outside the presence of the panel. The court questioned juror Donehoo first. The judge asked him if he could make a decision based on the law and the facts in the case. Donehoo replied “I’ve already kind of got my mind made up.” The judge pointed out that a juror’s duty was to listen and determine whether the State met its burden of proving that the defendants were responsible for the injury. Donehoo replied, “in my head, they’re already guilty.” The judge excused Donehoo but lectured him on his duties as a citizen.

The judge then talked to juror Hughes and asked her if she could weigh the evidence and make a decision based upon the evidence and the law. Hughes replied, “I think I could.” The judge asked juror Franklin the same question, and he replied that he could be fair and that he could carry out his duty as a juror to weigh the evidence and not show favoritism.

“[T]he burden of proving partiality lies with the party seeking to have the juror disqualified.” Hollis v. State, 269 Ga. App. 159 (603 SE2d 516) (2004).

The decision to strike a potential juror for cause lies within the sound discretion of the trial court, and before a potential juror is so excused, it must be shown that the individual holds an opinion of the defendant’s guilt or innocence that is so fixed and definite that the individual will not be able to set the opinion aside and decide the case based upon the evidence and the court’s instructions.

Higginbotham v. State, 287 Ga. 187, 191 (695 SE2d 210) (2010). “A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Cade v. State, 289 Ga. 805, 807 (716 SE2d 196) (2011).

In this case, although appellants claim that Hughes and Franklin were intimidated by the trial court’s reprimand of juror Donehoo, there is no evidence of that. As appellants acknowledge, there was no “browbeating” of jurors Hughes and Franklin, see Doss v. State, 264 Ga. App. 205, 210-211 (590 SE2d 208) (2003), nor is there anything in the record showing that Hughes or Franklin had a compelling bias or interest in the outcome of the case. See McClain v. State, 267 Ga. 378, 380-381 (477 SE2d 814) (1996). See also Higginbotham, supra (juror did not meet the qualification for dismissal for cause, merely because he knew the father of the victim); Cade, supra (juror stated that she had struggled a little with the question of impartiality); Patterson v. State, 233 Ga. App. 776, 777 (505 SE2d 518) (1998) (“The fact that a potential juror may have some doubt about her impartiality or complete freedom from all bias does not demand as a matter of law that the juror be excused for cause.”).

Accordingly, because the record does not show that Hughes’s and Franklin’s opinions were so fixed and definite that they could not be changed by the evidence and the charge of the court upon the law, we cannot say that the trial court abused its discretion in declining to .strike these jurors for cause. See Patterson, supra.

2. Next, Fisher argues that the trial court improperly limited voir dire. The transcript shows that defense counsel were still questioning the first panel after an hour and ten minutes had elapsed. The trial court stated: “Every one of you deserves to have a right to ask pertinent questions that you want to ask the jury panel, but you need to ask questions one time.” “[S]ome of them [questions] you have to ask again, I understand, but... ask whatever pertinent question you need to ask, but you do not need to ask the question that has already been asked this panel just for the sake of saying something to this jury.” Appellants complain that because of these instructions, trial counsel did not follow up or return to the questioning of jurors Donehoo, Hughes, and Franklin.

There was nothing improper in the trial court’s instruction to defense counsel and defense counsel were not prevented from asking any questions they chose; the trial court merely stated that counsel were not to ask the same questions that had already been asked and answered. Fisher cites Lane v. State, 126 Ga. App. 375 (190 SE2d 576) (1972), as authority for his claim of error, but that case does not support his argument. In Lane, the trial court told counsel he would permit counsel to ask the juror only two more questions. Further, in that case, there was no suggestion that the examination had been too lengthy or drawn out. Id. at 377.

That is not the case here. The court did not limit the number of questions counsel could ask nor did it curtail further inquiry.

3. Fisher next argues that the prosecutor made an improper “golden rule” argument. The record shows that during closing argument, the prosecutor described what the victims Hammack, Padgett and Knox must have felt during the robbery, the shooting and the kidnapping. The prosecutor then stated: “what we can do is make sure that the people, each and every one of them that participated in that, are responsible for what happened because let me tell you[,] that could have been you, that could have been me, and that could have been our children that walked into that store.”

Defense counsel objected and moved for a mistrial. The trial court denied the motion for mistrial but gave curative instructions as follows:

During the State’s closing argument, Ms. Heidmann made reference to these events that have occurred allegedly in this indictment and that it could have affected her or yourselves or your children. That is an improper argument under the law. You are not to place yourself, your family, or any other person in the place of the actual victims in this case, and you should not consider that in your deliberations. Your concern here is to decide whether or not the State has proven the guilt of these defendants beyond a reasonable doubt and not to make a decision based upon sympathy or any reference to yourselves. It is totally improper for a juror to put themselves in the place of the victim or a named victim in a case.

“A prohibited ‘golden rule’ argument is one which, either directly or by implication, tells the jurors that they should place themselves in the position of the victim in rendering a verdict.” Carpenter v. State, 285 Ga. App. 296, 298 (645 SE2d 709) (2007). “Whether to grant a mistrial for improper argument is a matter within the discretion of the trial court, and even when an objection to improper argument is sustained but a mistrial is denied, other action, including the giving of curative instructions, is not mandatory.” Emmanuel v. State, 300 Ga. App. 378, 381 (685 SE2d 361) (2009). Here, the trial court did give curative instructions; therefore, we cannot say that the trial court abused its discretion in denying the motion for mistrial. See Brown v. State, 260 Ga. App. 77, 82-83 (579 SE2d 87) (2003) (in view of curative instructions given after prosecutor’s “golden rule” argument, there was no abuse of discretion in trial court’s denial of motion for mistrial).

4. Fisher argues that the trial court erred in denying his motion to sever his case from that of the other defendants. Fisher contends that he did not participate in the first robbery at the Get N Fly store which gave rise to the charges in Counts 18,19, and 20, and therefore he was harmed because of the confusion and prejudice resulting from evidence of that robbery. We disagree.

It is not an abuse of discretion in the interest of justice for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other.

Stewart v. State, 239 Ga. 588, 589 (238 SE2d 540) (1977). See also Padgett v. State, 239 Ga. 556, 558 (238 SE2d 92) (1977) (although acting individually, defendants had a single criminal purpose, which was to engage in the business of prostitution).

Further, the burden is on appellant to show prejudice, and he “must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Punctuation omitted.) Owen v. State, 266 Ga. 312, 314 (467 SE2d 325) (1996). Fisher has made no clear showing of prejudice, either below or on appeal. This enumeration of error is without merit.

5. Fisher also argues that the trial court erred in recharging the jury outside of his presence. The record shows that the trial judge was summoned to the jury room because the jurors’ discussion was becoming hostile and tempers were flaring. The judge repeated that portion of the charge stating that each juror must decide the case for himself after a thorough consideration of the evidence and deliberation with his fellow jurors. The court then reminded the jurors that any further communication must be in writing. The court called the lawyers and their clients back to the courtroom, described what happened, and offered to restate the instruction in open court. All of the lawyers stated that it was not necessary to recharge the jury, none of the lawyers requested a mistrial nor did anyone object or request further action of any kind.

This issue was not preserved for appeal. Within the Georgia constitutional right to the courts is a criminal defendant’s “right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” Wade v. State of Ga., 12 Ga. 25, 29 (1852). See Martin v. State of Ga., 51 Ga. 567, 568 (1874). “Acolloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” Hanifa v. State, 269 Ga. 797, 807 (505 SE2d 731) (1998). However, “[defendants] waived [their] right to appellate review of this issue by failing to voice an objection or seek a mistrial after being informed by the trial judge, prior to the return of the jury’s verdicts, of his visit with the jury.” Id.

Case No. A12A0977

6. In this case, Bryant Lynch contends that the trial court erred in not excusing jurors Hughes and Franklin for cause. This claim has already been addressed in Division 1 of Case No. A12A0976.

7. Next, Lynch argues that the trial court erred in denying his challenge to the array of the jury panels. The record shows that after the third panel of jurors was brought into the courtroom, counsel challenged the array of the jurors, stating that “there were only four black jurors brought up before this panel,... and none of them were of the age group or the gender of these defendants.”

The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him. The court shall determine the sufficiency of the challenge at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed.

OCGA § 15-12-162.

In a similar case, the defendant contended that “the rejection of his pretrial challenge to the array violated his constitutional rights and the principles of fundamental fairness” because “the panel was comprised of too few persons of his race, gender, and age.” Kent v. State, 245 Ga. App. 531 (538 SE2d 185) (2000). This Court held:

[Appellant] misperceives the law. While traverse jury lists must consist of a representative and fair cross-section of the community to the fullest extent possible, the same is not true of an array. Provided that persons are not systematically excluded on the basis of race or other cognizable grouping, and provided that the jurors comprising a panel are randomly selected from a representative pool, the selection process is not inherently defective.

Id.

The defendant has the burden of proving purposeful discrimination in the jury array. Pruitt v. State, 279 Ga. 140, 142 (611 SE2d 47) (2005). Neither below nor on motion for new trial did Lynch point to any evidence that jurors were systematically excluded on the basis of race or other cognizable grouping, nor did he produce evidence that jurors comprising the panel were not randomly selected from a representative pool. There was no error.

Case No. A12A0978

8. In this case, Shammi Jadooram appeals. He raises two enumerations that were previously addressed; specifically, that the trial court erred in limiting voir dire, and also erred in refusing to grant a mistrial following the prosecutor’s “golden rule” argument made during closing. These arguments were addressed in Divisions 2 and 3 in Case No. A12A0976.

9. Next, Jadooram argues that the trial court erred in refusing his motion to sever his case from that of his co-defendants. He argues that there was no common scheme or plan and therefore his motion should have been granted.

As previously discussed in Case No. A12A0976, the crimes that were the basis of the trial in this case were two armed robberies of convenience stores, using masks and occurring just hours apart. As in that previous case, Jadooram does not show “clear prejudice” from the refusal to sever, but argues only that there was a substantial likelihood that the jury would confuse or misapply the evidence in a joint trial. See Owen, supra at 314. Accordingly, we conclude that the trial court did not err in denying the motion to sever.

10. Next, Jadooram contends that the trial court erred in denying his motion to suppress the gun and the mask found in a black bag under a neighbor’s storage building and a dismantled shotgun broken into three pieces found in a drainage ditch in an overgrown area some fifty-four yards from Jadooram’s residence. Jadooram points out that the search warrant did not have his correct address listed on it and the trial court suppressed all evidence found at that address.

The trial court did not, however, suppress the mask and gun found in the black bag or the shotgun found in the drainage ditch, concluding that Jadooram had no expectation of privacy in the neighbor’s shed or in the drainage ditch. Further, the trial court properly held that nothing found in Jadooram’s house pursuant to the invalid search warrant led officers to the bag or the gun, and therefore the items were not fruit of the poisonous tree.

Counsel argued that the search of the residence established that Jadooram “had at least some presence at that residence.” But officers already knew that Jadooram lived there. Accordingly, Jadooram has not shown that the bag and gun were discovered as a result of any evidence found in the house and later suppressed. See Leftwich v. State, 299 Ga. App. 392, 394 (682 SE2d 614) (2009) (evidence is fruit of the poisonous tree only if it would not have been discovered but for the illegal police conduct).

Further, “[t]he burden is on the defendant to show that he has standing to contest the alleged violation, i.e., that he has a legitimate expectation of privacy.” (Punctuation omitted.) Johnson v. State, 305 Ga. App. 635, 637-638 (700 SE2d 612) (2010). Jadooram could not show that he had any expectation of privacy in the neighbor’s outbuilding, nor does he attempt to do so.

As to the gun found in the drainage ditch, “a defendant who abandons seized property lacks standing to challenge the validity of the search and seizure.” (Punctuation omitted.) Johnson, supra at 638. See also Simmons v. State, 164 Ga. App. 643, 644 (298 SE2d 313) (1982) (appellant had thrown the gun into a densely overgrown area behind his house and therefore “had no reasonable expectation of privacy in the area where he abandoned the gun”).

11. In his last enumeration of error, Jadooram contends that trial counsel was ineffective for failing to object to the judge’s conversation with the jury and the recharge of the jury outside his presence. Jadooram claims that counsel should have objected to the exchange and should have accepted the trial court’s offer to recharge the jurors in the defendants’ presence.

[I]n order to prevail on his claim of ineffective assistance, [Jadooram] must show that his attorney’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of his trial would have been different; he also must overcome the strong presumption that his attorney’s conduct fell within the broad range of reasonable professional conduct.

Smith v. State, 282 Ga. 388 (651 SE2d 28) (2007), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “This Court gives deference to the trial court’s factual findings, which are to be upheld unless clearly erroneous, and reviews the lower court’s legal conclusions de novo.” Sanford v. State, 287 Ga. 351, 356 (695 SE2d 579) (2010).

A defendant has the constitutional right to be present

at any stage of a criminal proceeding that is critical to its outcome if [his or her] presence would contribute to the fairness of the procedure.... [A] critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.

(Punctuation omitted.) Huff v. State, 274 Ga. 110, 111 (549 SE2d 370) (2001).

In general, a trial judge should not communicate with the jury without all parties present in open court. The better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused.

(Punctuation omitted.) Chandler v. State, 277 Ga. App. 78, 80 (625 SE2d 495) (2005).

Decided October 3, 2012

Cox, Byington, Corwin, Brumlow & Twyman, Christopher P. Twyman, for appellant

(case no. A12A0976).

David L. Lumpkin, for appellant

(case no. A12A0977).

Vaughan & Evans, Donald C. Evans, Jr., Tracy L. Rhodes, for appellant

(case no. A12A0978).

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Rosemary M. Greene, Stewart D. Bratcher, Assistant District Attorneys, for appellee.

Trial counsel testified at the hearing on the motion for new trial that he did not object because the issue did not appear to be substantive or to be one that would affect the trial. He stated that it appeared to be more in the way of an emergency matter that involved security. Jadooram has not suggested that the recharge was incorrect nor has he shown that, had he been present or had counsel objected, the matter would have been dealt with differently. See Chandler, supra at 80. There was no error.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       These seven were the original defendants in the case. Scott’s motion to sever was granted, and Ford and Jomandi Fisher pled guilty. Of the four that went to trial, Lynch, Jadooram, and Niko Fisher have appealed in these consolidated cases.

       The affidavit did list the correct address, but due to a scrivener’s error, the address was not listed on the search warrant.


source: Caselaw Access Project

license: Public Domain

text:
    A12A1066.
    JONES v. VALDOSTA BOARD OF EDUCATION.
    (732 SE2d 830)
   Andrews, Judge.

On appeal from a grant of summary judgment to the Valdosta Board of Education, Jo Ann Jones argues that questions of material fact remain as to her claim that the Board discriminated against her when she was passed over for promotion. We find no error and affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

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

So viewed, the record shows that in 1996, the Board hired Jones, a now-64-year-old African-American and Muslim woman, as a media specialist. In September 2006, the Board announced a vacancy for a systemwide position as director of information technology, with responsibilities including the selection of software, programming, and website development. The then director of finance and currently the superintendent of the Valdosta City Schools, a white male approximately Jones’s age or older, appointed four other people to serve with him on a hiring committee. As ultimately constituted, the panel consisted of three males and two females. Of these, two were white and three were African-American; three of the five (one white and two African-American) were also as old or older than Jones.

Approximately 15 people applied for the position. After reviewing the applications, the committee sought to interview five candidates, but could not arrange an interview with the fifth candidate at or near the time it set for the remaining four. After holding the four interviews and noting that none of the four interviewees met all of the hiring criteria, the committee selected two finalists: Jones and one other woman. Both finalists were asked to submit a project demonstrating their skills, but a review of their submissions by the directors of finance and personnel, respectively, led both to the conclusion that neither finalist fully satisfied what they were looking for. The director of personnel, who had continued efforts to reach the fifth candidate throughout, then succeeded in reaching him and scheduled an interview. As the committee of the whole had required of Jones and the other finalist, both directors asked the fifth candidate to submit a project, reviewed the fifth candidate’s submission as well as his application and supporting documents, and recommended him for the job for which he was later hired. The fifth candidate was a white male 20 years younger than Jones.

The director of personnel, an African-American woman among those as old or older than Jones, testified that neither Jones’s age, her race, nor her faith had any impact on the committee’s decision not to offer her the position. Jones herself believed, however, that she was more qualified than the fifth candidate, even though no one on the committee had ever expressed this opinion to her. As she admitted at her deposition, moreover, Jones had no knowledge or information that her age, race, or gender had any impact on the Board’s decision to offer the fifth candidate the position. In November 2009, Jones brought this Title VII discrimination claim. The trial court later granted the Board’s motion for summary judgment.

Because no state or local government may discriminate against rights arising under federal laws, “Georgia courts may not refuse to exercise original jurisdiction over claims under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972.” Williamson v. Dept. of Human Resources, 258 Ga. App. 113, 116 (1), n. 7 (572 SE2d 678) (2002), citing Collins v. Dept. of Transp., 208 Ga. App. 53, 56 (429 SE2d 707) (1993).

The burden facing the Board as the movant for summary judgment on a Title VII claim is a familiar one:

[T]he moving party is not required to support its motion with affidavits or other similar material negating the opponent’s claim in order to discharge this initial responsibility. Instead, the moving party simply may show — that is, point out to the district court — that there is an absence of evidence to support the non-moving party’s case. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial.

Fitzpatrick v. City of Atlanta, 2 F3d 1112, 1115-1116 (II) (B) (11th Cir. 1993). Specifically, an employer facing a prima facie case of discrimination may

rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.

(Citations omitted; emphasis supplied.) Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254-255 (II) (101 SC 1089, 67 LE2d 207) (1981). Further, the employer’s burden in the rebuttal stage is very light. Walker v. Nations Bank of Florida, 53 F3d 1548, 1556 (11th Cir. 1995). “[T]he employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” (Punctuation omitted; emphasis in original.) Combs v. Plantation Patterns, Meadowcraft, 106 F3d 1519, 1528 (IV) (B) (11th Cir. 1997), quoting Burdine, supra, 450 U. S. at 257 (III) (A). And upon satisfaction of the foregoing burden, the employee, who retains the burden of persuasion, must then “prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination.” Id. at 253 (II), citing McDonnell Douglas Corp. v. Green, 411 U. S. 792, 804 (93 SC 1817, 36 LE2d 668) (1973). Plaintiff’s demonstration of pretext merges with her “ultimate burden of showing that the defendant intentionally discriminated against the plaintiff.” Holifield v. Reno, 115 F3d 1555, 1565 (B) (1) (11th Cir. 1997), citing St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 511 (113 SC 2742, 125 LE2d 407) (1993).

As the Board concedes on appeal, Jones has proven a prima facie case of discrimination in that she is a member of a protected class, applied for and was qualified for the position, and was rejected for that position despite her qualifications in favor of a person not a member of the protected class. See Burdine, supra, 450 U. S. at 253 (II). The Board also points out, however, that there is neither direct nor circumstantial evidence of any discriminatory intent in this case. On the contrary, the Board provided evidence that the committee members who reviewed the finalists’ programming projects agreed that neither candidate was a complete fit for the job and that all the applications for the position should be revisited in an effort to identify a candidate “with greater knowledge” of software programming and website construction.

Although Jones concedes that the Board met its burden to rebut her prima facie case of discrimination by the foregoing nondiscriminatory reasons for its decision not to offer her the job, she points to no evidence that race, gender, or age bias were its true reasons for the same. Instead, Jones insists only that her qualifications were superior to those of the person who got the job and that she believed actionable discrimination was present because the director of finance told her after the fact that she had proved not to be the right fit for the job. Speculation and aspersions, however, do not create any genuine issue of fact; rather, Jones’s prima facie case of discrimination as duly rebutted, it was Jones’s burden to show evidence of pretext and intentional race, gender, and age discrimination. See Burdine, supra, 450 U. S. at 253 (II); see also Holifield, supra, 115 F3d at 1565 (B) (1). This Jones failed to do.

Because Jones has failed to present any evidence to refute the Board’s own evidence that it did not discriminate against her, the trial court did not err when it granted the Board summary judgment.

Decided October 3, 2012.

Terry & Peterman, Jody D. Peterman, for appellant.

Moser & Aeree, Gary L. Moser, Gannam, Gnann & Steinmetz, Christian J. Steinmetz III, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       Jones has abandoned her claim that she was the victim of religious discrimination.


author: McFadden, Judge.

text:
    A12A1140.
    McSMITH v. BROWN.
    (732 SE2d 839)
   McFadden, Judge.

Derek LeRoy McSmith appeals pro se from the trial court’s order dismissing, for failure to state a claim, his malicious prosecution action against Greg Brown, an assistant solicitor-general in the office of the Fulton County Solicitor-General. Because we agree with the trial court that Brown is entitled to prosecutorial immunity from this suit, we affirm.

‘We review de novo the grant of a motion to dismiss for failure to state a claim and construe the complaint’s factual allegations in favor of the plaintiff.” (Citation omitted.) Thomas v. Bank of America Corp., 309 Ga. App. 778 (771 SE2d 371) (2011). McSmith made the following allegations in his complaint: that he was issued multiple traffic citations on December 22, 2009; that he pled not guilty to the traffic citations and demanded a jury trial; that Brown was designated as a special prosecutor for his case after the assigned solicitor-general recused; that Brown maliciously amended the accusation to include a count of DUI less safe involving marijuana; that during the December 22 traffic stop no marijuana had been found on his person or in his vehicle; that none of the traffic citations issued at that stop were for possession of marijuana or DUI less safe involving marijuana; that a jury subsequently found him not guilty of the DUI charge; and that he had “satisfie[d] all elements to bring a malicious prosecution claim.”

Brown moved to dismiss the complaint for failure to state a claim under OCGA § 9-11-12 (b) (6), arguing, inter alia, that the claim was barred by the doctrine of prosecutorial immunity. The trial court agreed and granted Brown’s motion on this ground, among others.

OCGA § 15-18-74 (c) provides that “[s]olicitors-general of state courts and their staff shall be entitled to immunity from private suit for actions arising from the performance of their official duties to the same extent as district attorneys.” Under our state constitution, “ [d] istrict attorneys shall enj oy immunity from private suit for actions arising from the performance of their duties.” Ga. Const. of 1983, Art. VI, Sec. VIII, Par. I (e). The rationale behind this immunity is that

Decided October 3, 2012.

Derek L. McSmith, pro se.

Terry Grandison, for appellee.

prosecutors, like judges, should be free to make decisions properly within the purview of their official duties without being influenced by the shadow of liability. Therefore, a [solicitor-general] is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction. The determining factor appears to be whether the act or omission is intimately associated with the judicial phase of the criminal process.

(Citations, punctuation and emphasis omitted.) Robbins v. Lanier, 198 Ga. App. 592, 593 (2) (402 SE2d 342) (1991).

In his complaint, McSmith alleged that Brown’s act of adding a DUI count to his accusation constituted prosecutorial misconduct. “[A] prosecutor’s decision to file formal criminal charges against an individual is an act intimately associated with the judicial phase of the criminal process.” Robbins, 198 Ga. App. at 593 (2). Consequently, McSmith’s action against Brown is barred by the doctrine of prosecutorial immunity, and the trial court did not err in dismissing the complaint for failure to state a claim. See id. Cf. Battle v. Sparks, 211 Ga. App. 106, 107 (438 SE2d 185) (1993) (affirming trial court’s decision not to allow filing of pro se, indigent complaint alleging, inter alia, that district attorney and assistant district attorneys had illegally obtained indictment against him, holding that complaint failed to allege facts stating claim for relief because defendants were entitled to prosecutorial immunity).

Judgment affirmed.

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


author: Doyle, Presiding Judge.

text:
    A12A1542.
    HENLEY v. THE STATE.
    (732 SE2d 836)
   Doyle, Presiding Judge.

In this discretionary appeal, Joel Henley challenges an order revoking his probation based on new offenses. Henley contends that (1) the State failed to provide sufficient admissible evidence that he possessed (a) controlled substances or (b) drug-related objects, and (2) the trial court erroneously revoked more than two years of probation pursuant to OCGA § 42-8-34.1 (c). For the reasons that follow, we reverse the judgment and remand the case for resentencing.

A court may revoke probation based on new violations if the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. And this Court will not interfere with a revocation absent manifest abuse of discretion on the part of the trial court. Accordingly, if admissible evidence is presented in support of the allegations regarding revocation of probation, this Court will affirm.

The record shows that Henley pleaded guilty to robbery and was sentenced to a term of probation for 11 years, 11 months, and 11 days. In March 2010, while on probation, Henley was stopped at a police roadblock. After Henley was unable to produce a license and gave a false name to the inquiring officer, Henley was arrested, his vehicle was searched pursuant to the owner’s consent, and police found a number of unidentified pills as well as two pipes that appeared to be used for smoking controlled substances.

The State petitioned for revocation of Henley’s probation based on the encounter at the roadblock, and Henley admitted giving a false name, having a suspended license, and committing technical probation violations. Based on the evidence from the hearing, the trial court revoked four years of Henley’s probation based on eight violations: two new felony offenses of possessing controlled substances (alleged codeine and oxycodone pills); three new misdemeanor offenses (possessing drug-related objects, driving while his license was suspended, and giving a false name); and three technical violations (failure to initially report, failure to complete day reporting, and failure to pay a fine). After Henley applied for discretionary review of the revocation, we granted his application.

1. (a) Possession of controlled substances. Henley contends that the State failed to provide sufficient admissible evidence to support the trial court’s findings that he possessed oxycodone and codeine, which was the basis for two new felony offenses supporting the revocation. Indeed, as ruled by the trial court and conceded by the State on appeal, the testifying officer failed to give a proper foundation for his identification of the pills and there was no evidence of lab results for testing the pills. Therefore, there was no admissible evidence that the pills were actually contraband.

Despite this, the trial court appeared to rely on the fact that Henley told an officer that there was contraband in the vehicle and where to find it. But this statement was made to an officer who did not testify in court; instead, the statement was repeated by the testifying officer who explained that he was repeating what another officer told him. Henley correctly objected to this statement on hearsay grounds, and the trial court erred by considering it. Such a statement derives its value not from the credit of the testifying officer but from the veracity and competency of the nontestifying officer. Hearsay testimony lacks probative value, so the trial court erred by relying on the hearsay testimony to conclude that Henley had knowledge of the contraband in the vehicle. This left no evidence to conclude, even under the State’s lower burden of proof at the hearing, that the pills were contraband. Accordingly, the trial court erred by basing its revocation decision on the two new felony counts of possession of controlled substances.

(b) Possession of drug-related objects. Likewise, with respect to Henley’s alleged possession of the two pipes, which supports the possession of drug-related objects offense, there was no admissible evidence that Henley knew of the existence of the pipes or where they were located in the vehicle. There was uncontroverted evidence that Henley was not the owner of the vehicle, and in fact the owner did come to the scene and claim the vehicle. Therefore, Henley argues that under the equal access rule, the evidence was insufficient to show he possessed the drug-related objects in the vehicle.

Because Henley was not found holding the objects or with them on his person, the State’s theory of possession is based on the legal presumption that he possessed the objects because he was driving the vehicle where they were found at the time they were found.

However, this presumption is rebuttable by evidence of equal access. And in this context, evidence showing that a person or persons other than the owner or driver of the automobile had equal access to the contraband found in the automobile may or will, depending on the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. Whether the evidence of equal access was sufficient to rebut any inference of possession is a question properly left to the [factfinder] .

Here, the only evidence of equal access was that another person owned the car. There was no evidence that the owner or any other person had recent access to the vehicle. “Contrary to [Henley’s] arguments otherwise, the fact that [another person] owned the car was insufficient, by itself, to” require a finding that Henley had rebutted the presumption that he possessed what was in the vehicle at the time he drove it. Therefore, in light of the record before us, including the fact that Henley was the sole occupant of the vehicle and there was no evidence of recent access by others, the trial court was not required to abandon the presumption that Henley possessed what was found in the vehicle when he drove it.

2. Henley points out that the revocation petition does not specify which Code section Henley is alleged to have violated for the drug-related objects offense; instead it simply accuses him of possessing certain specified drug-related objects. Henley correctly argues that the only violation alleged and proved falls under OCGA § 16-13-32.2, which makes possession of a drug-related object a misdemeanor. In light of this fact and the rulings herein, the only offenses supported by the record were the drug-related objects misdemeanor offense and those others admitted by Henley: the nonviolent misdemeanor offenses of giving a false name, driving with a suspended license and the technical violations. Therefore, as conceded by the State under this result, the trial court was not authorized to revoke more than two years of Henley’s outstanding probation. Accordingly, we remand the case for resentencing in accord with statutory authority.

Decided October 3, 2012.

Timothy W. Hoffman, for appellant.

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

Judgment reversed and case remanded for resentencing.

Andrews and Boggs, JJ., concur.

       (Punctuation and footnotes omitted.) Brown v. State, 294 Ga. App. 1, 3 (2) (668 SE2d 490) (2008).

       See, e.g., Zachery v. State, 276 Ga. App. 688, 691 (2) (624 SE2d 265) (2005) (testimony by one officer as to what another officer told him that an informant said was inadmissible hearsay); Morris v. State, 265 Ga. App. 186, 187-188 (593 SE2d 360) (2004) (“hearsay, even if not objected to, proves nothing”) (citation omitted).

       See OCGA § 24-3-1 (a).

       See Henry v. State, 311 Ga. App. 353, 354 (716 SE2d 232) (2011) (“In cases involving contraband found in vehicles, the [Sjtate is generally entitled to an evidentiary presumption that the driver ... of the vehicle is in constructive possession of the contraband.”).

       (Citation and punctuation omitted.) Mercado v. State, 317 Ga. App. 403, 404 (731 SE2d 85) (2012).

        See Maldonado v. State, 313 Ga. App. 511, 513 (1) (722 SE2d 123) (2012) (noting that the defendant “was the sole occupant of the vehicle, and there was no evidence adduced demonstrating that anyone else had access to the contents of the truck”).

       (Emphasis supplied.) Mercado, 317 Ga. App. at 405. See Navarro v. State, 293 Ga. App. 329, 331 (667 SE2d 125) (2008). See also Mangum v. State, 308 Ga. App. 84, 87 (1) (706 SE2d 612) (2011) (explaining that the equal access rule depends on the strength of the evidence of equal access and does not require the State to prove a negative fact).

       Henley does not specifically argue that the indictment’s lack of specificity renders it void, but we note that an indictment’s “description of the offense charged prevails over any Code section cited.” (Citation and punctuation omitted.) In the Interest of B. C. G., 235 Ga. App. 1, 3 (1) (508 SE2d 239) (1998).

       See OCGA §§ 16-10-25 (false name); 40-5-121 (a) (suspended license).

       See OCGA § 16-13-32.2 (b) (possession of drug-related object is a misdemeanor).

       See OCGA § 42-8-34.1 (c); Bergen v. State, 300 Ga. App. 837, 838-839 (686 SE2d 410) (2009).

       The date of the revocation order was entered on July 6,2010. Therefore, it appears that Henley has already served the maximum two-year revocation period.


text:
    A12A1217.
    PAULK et al. v. THOMASVILLE FORD LINCOLN MERCURY, INC.
    (732 SE2d 297)
   Andrews, Judge.

In March 2008, Thomasville Ford Lincoln Mercury, Inc., sold a used Cadillac to Veronica and James Paulk. After the couple learned that the car had been involved in a collision and repaired before being sold to them, they sued Thomasville for fraud and deceit, unfair trade practices, breach of warranty, and revocation of acceptance. On appeal from the trial court’s grant of summary judgment, the Paulks argue that questions of material fact remain on each of these claims. We disagree and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that in February 2007, the Cadillac at issue in this suit was owned by Alamo Financing, used in the robbery of a pawn shop in Florida, and involved in a rollover accident. The accident caused damage to the car estimated at more than $17,000. By October 2007, Thomasville had acquired the car for $21,500 and performed an inspection without noting that the car had been in a collision. On March 3, 2008, a Thomasville employee requested and obtained a Carfax report on it. The report did not include any information on the February 2007 wreck.

On March 31, 2008, Thomasville sold the Cadillac to Veronica Paulk, whose husband was then deployed in Iraq, for $24,876.98 (including tax, tag and title). At the time of sale, the car had 10,420 miles on it. Ms. Paulk testified that before buying the car, she noticed some discoloration on the inside of the driver’s side door next to the steering wheel.

A. I just remember asking if the car had been wrecked and why it looked like that. And [the salesman] proceeded to mention that he — he said he wasn’t —■ that they had just got the lot and the cars were on the lot already and he was — he said that he was not sure and that — but it came with a manufacturer’s warranty, so that I should, you know, feel safe, pretty much. Well, he didn’t say that. But it was basically implying that I should feel safe because it had a manufacturer’s warranty. . . .
Q. [So the salesman’s] response was, “We just acquired this car lot. This car was on the lot when we arrived [at] the dealership. I’m not sure, but it has a manufacturer’s warranty”?
A. Right.

(Emphasis supplied.) When Ms. Paulk was asked whether she thought that Thomasville “knew that this car was wrecked at the time they sold it to you,” she replied, “I’m not sure if they did or not.” The purchase order signed by Ms. Paulk also noted that she had “examined the vehicle,” was “familiar with its condition,” and was “buying a used vehicle, as is, and with no warranty as to condition, model or mileage, unless otherwise specified in writing.” As the salesman represented, and as a sticker on the car itself also suggested, the Cadillac remained under a manufacturer’s warranty at the time of the sale.

A few days after the purchase, Ms. Paulk noticed a wet spot in the Cadillac’s trunk. She took the car back to Thomasville, which performed a repair while she waited. Four months later, the gas gauge stuck once; Ms. Paulk restarted the car, and the gauge reset properly. At one point during the next 12 months, the car stalled out once while Ms. Paulk was driving it. In July 2009, the sunroof began leaking. Ms. Paulk took the car to a Cadillac dealership in Savannah, which repaired the leak and replaced upholstery damaged by it. All of these repairs were covered by the manufacturer’s warranty. Also in the summer of2009, the car stalled out at a stop sign while Mr. Paulk was driving. The car restarted, and the problem did not recur.

In the summer of 2009, Mr. Paulk returned from deployment in Iraq and noticed that the paint above the rear passenger door had tape lines, suggesting that the car had been repainted. Mr. Paulk also noticed dirt embedded in the new paint. In October 2009, Mr. Paulk backed into another vehicle and damaged the Cadillac’s right quarter panel. The repairman working on that damage told Mr. Paulk that the car had been repaired before and pointed out nonfactory paint, applied body filler, and reshaped fenders. On October 14, 2009, Mr. Paulk obtained an AutoCheck vehicle history, which showed that the car had been involved in the February 2007 rollover accident. He immediately contacted Thomasville’s manager, who denied that the Cadillac had been wrecked before the sale and refused to repaint the car. The Paulks stopped driving the car shortly afterward, by which time they had put over 24,000 miles on it.

A December 2009 Carfax report showed that the rollover accident had not been reported to that agency until April 1, 2009, or one year after the sale to the Paulks. On December 16, 2009, the Paulks’ counsel notified Thomasville of the couple’s intention to rescind the contract. In the course of the suit that followed, the Paulks’ expert testified that “any person in the used car business would have discovered the previous damage to [the Cadillac] from even a cursory inspection of the vehicle.” The expert also reported that the Cadillac was worth $8,000 less than it would have been had it not been in the 2007 collision and repaired as it was.

1. The Paulks argue that Thomasville’s failure to discover and disclose the Cadillac’s 2007 wreck was fraudulent. We disagree.

“The five elements of fraud and deceit are: (1) false representation made by defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting in reliance by plaintiff; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff.” (Citation and punctuation omitted.) Jegadeesh v. Ryan, 293 Ga. App. 341, 343 (2) (667 SE2d 105) (2008). “In order to survive a motion for summary judgment, plaintiff must show some evidence as to each element [of a fraud claim]. In order to prove the element of justifiable reliance, the plaintiff must show that he exercised his duty of due diligence.” (Citation omitted.) Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995).

The record before us does not authorize a factfinder to conclude that Thomasville knew of the collision or that it made any false representation concerning it. On the contrary, Ms. Paulk’s own testimony shows that when she noticed a paint flaw and asked whether the Cadillac had been repaired, the Thomasville representative replied that he was “not sure” about any collision but that she should “feel safe” about purchasing the car because it had a manufacturer’s warranty. In fact, Thomasville’s own Carfax report, obtained a few weeks before the sale, did not show that the car had been in a collision, and the car did have such a warranty, which the Paulks received the benefit of when they obtained repairs on the car’s trunk, sunroof, and upholstery. The purchase order signed by Ms. Paulk also noted that she had “examined the vehicle,” was “familiar with its condition,” and was “buying a used vehicle, as is, and with no warranty as to condition, model or mileage, unless otherwise specified in writing.” Thus the Paulks can prove neither that the salesman’s expression of uncertainty concerning the collision was a misrepresentation nor that they were justified in concluding either that the car had not previously suffered body damage or that no further inquiry was necessary on the subject. Jegadeesh, 293 Ga. App. at 344 (2) (affirming trial court’s grant of defendants’ motion for j.n.o.v. concerning fraud claim where defendants had represented that they did not know of any water damage to house; plaintiffs could prove neither a misrepresentation nor justifiable reliance, given their own notice concerning the damage); El-Amin v. Nalley Motor Trucks, 215 Ga. App. 509, 510 (451 SE2d 61) (1994) (affirming grant of summary judgment to seller when odometer disclosure statement warned that odometer was incorrect and when the buyer admitted that the seller had told him that he did not know the correct mileage on the vehicle); Hanlon, 218 Ga. App. at 502 (1) (affirming grant of summary judgment to seller when plaintiff failed to show due diligence concerning existence of landfills on property).

2. Like a claim for common-law fraud, a claim under the Fair Business Practices Act of 1975 (FBPA), OCGA § 10-1-390 et seq., requires a showing that a defendant committed “a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature (but not necessarily the illegality) of the act.” Colonial Lincoln-Mercury Sales v. Molina, 152 Ga. App. 379, 383-384 (11) (262 SE2d 820) (1979). Just as the Paulks cannot show that Thomasville made a fraudulent misrepresentation to them concerning the Cadillac, they cannot show that Thomasville’s expression of uncertainty concerning the 2007 collision was unfair or deceptive. See DeLoach v. Gen. Motors, 187 Ga. App. 159, 160-161 (5) (369 SE2d 484) (1988) (affirming grant of directed verdict to car dealer on buyer’s FBPA claim; dealer’s failure to notice defect and refusal to give buyers a new car once the defect was discovered were “not by themselves an unfair or deceptive [business] practice” when the car’s “warranty provides a remedy for a breach”); compare Marrale v. Gwinnett Place Ford, 271 Ga. App. 303, 309 (3) (609 SE2d 659) (2005) (reversing grant of summary judgment on car buyer’s FBPA claim when a salesman “certainly knew that he did not know the real condition of the car,” but told a buyer nonetheless that the car had not been in a collision).

3. The Paulks also contend that the trial court erred when it granted summary judgment to Thomasville on their claim for breach of implied warranty and violation of the Magnuson-Moss Warranty Act, 15 USC § '2310 (d) (1). We disagree.

The Magnuson-Moss Warranty Act allows a “consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under an implied warranty to bring suit for damages and other legal and equitable relief.” 15 USC § 2310- (d) (1). The Act defines “implied warranty” as “an implied warranty arising under State law in connection with the sale by a supplier of a consumer product.” 15 USC § 2301 (7).

(Punctuation and footnote omitted.) Mitchell v. Backus Cadillac-Pontiac, 274 Ga. App. 330, 338 (6) (618 SE2d 87) (2005). To recover under the Magnuson-Moss Act, then, a buyer must show that a seller “breached the implied warranty of merchantability arising under Georgia law.” Id.

Under Georgia’s version of the Uniform Commercial Code, “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. This warranty protects consumers from defects or conditions existing at the time of sale.” (Punctuation and footnote omitted.) Dildine v. Town & Country Truck Sales, 259 Ga. App. 732, 733-734 (1) (577 SE2d 882) (2003), citing OCGA § 11-2-314 (1). To be merchantable, used cars must “pass without objection in the trade under the contract description, and they must be fit for the ordinary purposes for which cars are used.” (Punctuation omitted.) Soto v. CarMax Auto Superstores, 271 Ga. App. 813, 815 (1) (b) (611 SE2d 108) (2005), citing OCGA § 11-2-314 (2) (a), (c). “Proof that [a] car was defective when sold is an essential element of this claim.” Mitchell, 274 Ga. App. at 338-339 (6).

As was the case with the buyer in Mitchell, the Paulks have cited no authority for their proposition that the mere fact that a car has been repaired after a collision would cause it not to “[p]ass without objection in the trade under the contract description.” OCGA § 11-2-314 (2) (a). Here, for example, Thomasville paid $21,500 for the car shortly before selling it to the Paulks, showing that it indeed passed without objection in the trade before being offered to a consumer for sale. Finally, the other defects of which the Paulks complained — two stalls, defective paint, and a leaky trunk and sunroof, now repaired— do not amount to defects making the Cadillac unmerchantable, particularly in light of their use of the car for over 24,000 miles. It follows that the Paulks have not shown error in the trial court’s grant of summary judgment on their FBPA and Magnuson-Moss claims. Soto, 271 Ga. App. at 815 (fact that buyer drove car for 25,000 miles “negates his claim that the vehicle was unmerchantable at the time of purchase, since it clearly was capable of being driven”); Sharpe v. Gen. Motors Corp., 198 Ga. App. 313, 314-315 (3) (401 SE2d 328) (1991) (given that a FBPA claim failed, a Magnuson-Moss claim, which concerned “damages, not liability,” also failed).

4. Finally, the Paulks argue that questions of material fact remain on their revocation of acceptance claim. Again, we disagree.

Under OCGA § 11-2-608 (1), a buyer may revoke acceptance of a product “whose nonconformity substantially impairs its value to him” if that buyer accepted the product

(a) [o]n the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) [w]ithout discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.

Subsection (2) of the same statute provides that a buyer’s revocation of acceptance “must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects.” (Emphasis supplied.)

We are aware that questions whether an effective revocation of acceptance has been made, whether reasonable notification was given to the seller, and whether the value of the goods was substantially impaired by a nonconformity are ordinarily matters for the trier of fact. See Griffith v. Stovall Tire & Marine, 174 Ga. App. 137 (329 SE2d 234) (1985). Pretermitting whether the Cadillac was nonconforming at the time it was sold to the Paulks, however, their own undisputed evidence showed that Ms. Paulk saw paint defects immediately on opening the driver’s door to the car and before purchasing it; that this discovery led her to inquire whether the car had been in a collision; and that the salesman replied that he was “not sure” on this point. The record also shows that the Paulks’ attempted revocation came long after they put thousands of miles on the car. Thus the Paulks can show neither that their acceptance was induced by the difficulty of discovering the car’s defects nor that their attempted revocation came after they had notice of those defects but before a substantial change in the car’s condition. See Bicknell v. B & S Enterprises, 160 Ga. App. 307, 309 (2) (287 SE2d 310) (1981) (affirming car dealer’s motion for directed verdict when that dealer “did nothing to conceal the condition” of the car sold to plaintiff; “[gjiven the ease with which the plaintiff could have discovered the alleged nonconformance,” she had “no grounds to revoke her acceptance” of the car).

Decided September 19, 2012

Reconsideration denied October 4, 2012

T. Michael Flinn, for appellants.

Robert D. Howell, for appellee.

For all these reasons, the trial court did not err when it granted Thomasville summary judgment on the Paulks’ claims.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: Miller, Presiding Judge.

text:
    A12A1626.
    GROT v. CAPITAL ONE BANK (USA), N. A.
    (732 SE2d 305)
   Miller, Presiding Judge.

Capital One Bank (USA), N. A. (“the Bank”) filed suit against John B. Grot to recover an unpaid debt on an open account. Grot, appearing pro se, filed a “Motion to Dismiss and Compel Arbitration.” The trial court denied the motion to dismiss, but entered an order staying the suit and granting Grot’s unopposed motion to compel arbitration. The stay order, however, was subsequently vacated when arbitration was not timely pursued. The trial court overruled Grot’s objections to the stay order and did not grant Grot’s subsequently filed motion for reconsideration on the matter. The Bank filed a motion for summary judgment, which the trial court granted. Grot appeals, contending that the trial court erred (1) in denying his “Motion to Dismiss and Compel Arbitration”; (2) in entering the Bank’s proposed stay order; (3) in failing to grant his motion for reconsideration of the stay orders; (4) in failing to conduct a scheduling hearing; (5) in failing to schedule oral arguments on the motion for summary judgment; and (6) in granting the motion for summary judgment. For the reasons that follow, we affirm.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the non-moving party.

(Footnote omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270 (718 SE2d 107) (2011).

The record evidence in this case shows that the Bank filed the instant collection action against Grot, alleging that Grot was liable for the repayment of a debt in the amount of $8,728.67 in principal, $3,753.01 in accrued interest, and $257.50 in court costs. As part of the suit, the Bank also provided notice under OCGA § 13-1-11 (a) (3) that it intended to enforce the provisions of the parties’ “Customer Agreement” (the “cardholder agreement”) providing for all collection costs, including attorney fees, and that Grot would be liable for $1,273.17 in attorney fees unless payment in full was tendered within ten days from Grot’s receipt of the complaint and notice.

Grot filed an answer generally denying his liability and the amount of the debt. Grot also filed a motion to dismiss the case and to compel arbitration, electing to enforce the arbitration provisions of the cardholder agreement. The Bank opposed dismissal of the case, but stated that it had no objection to a stay so that Grot could initiate arbitration proceedings as authorized by the cardholder agreement. The Bank presented a proposed order granting a stay of the case, further mandating that Grot would have 30 days to file an arbitration action, and providing that the case would be reinstated if Grot failed to comply with the time limitation for pursuing arbitration. On September 28, 2011, the trial court denied Grot’s motion to dismiss, but entered the Bank’s proposed order staying the case for arbitration. On December 1, 2011, after arbitration was not pursued within the mandated 30-day period, the trial court vacated the stay order and reinstated the case.

The Bank thereafter filed a motion for summary judgment, asserting that the undisputed evidence established Grot’s liability for the liquidated amount of the debt. To support its motion, the Bank submitted the affidavit of its authorized agent, who averred that she had personal knowledge of the Bank’s manner and method of maintaining its accounts receivable and business records; the Bank’s records were kept in the ordinary course of business and record entries were made at the time of the transaction; the records showed that Grot applied for and was issued a credit card account by the Bank; the Bank issued the cardholder agreement, which delineated the terms and conditions of the account; Grot proceeded to make charges on the account and was provided with monthly account billing statements setting forth the account activity and requesting payment; and that Grot defaulted by failing to make payments, which resulted in an unpaid principal balance owed of $8,728.67, interest accruing at the applicable statement rate of 19.08% in the amount of $3,753.01, and reasonable attorney fees of $1,273.17. Copies of the cardholder agreement and the monthly account billing statements were included as exhibits to the affidavit. In addition, the Bank’s motion attached an offer agreement executed by Grot as the “Authorizing Signatory” on November 10, 2001, reflecting that he was the president of International Consultants of GA(“the Company”). Above the signature line for acceptance of the offer agreement was a provision stating in pertinent part, “I have read the Important Disclosures and Terms of Offer on the back of the letters . . . and I agree on behalf of the Company and myself that the Company and I will be bound as specified therein.”

In response to the Bank’s motion, Grot generally denied the claims, contending that the cardholder agreement was “not a factual document pertaining to th[e] [c] ase,” that he was not personally liable for the debt, and that the amount due was in dispute. Grot also filed a motion for reconsideration of the stay orders, contending that he was never served with the signed orders. Grot filed a “Request for a Scheduling Hearing,” which asserted that “there are a significant number of issues that need to be reviewed and/or heard by the Court in oral arguments.”

The trial court entered an order overruling Grot’s objection to the stay orders. The trial court granted the Bank’s motion for summary judgment. Grot filed the instant appeal to challenge the trial court’s decisions.

1. Grot contends that the trial court erred in denying his “Motion to Dismiss and Compel Arbitration.” We discern no error.

Contrary to Grot’s contention, the trial court granted his motion for arbitration and granted a stay of the action to allow arbitration proceedings to be initiated. The record establishes that the Bank did not oppose Grot’s motion for arbitration, and pointed out that the parties’ cardholder agreement contained an arbitration clause that gave either party the option to elect arbitration as a means to resolve the dispute. The arbitration clause pertinently stated that “[Grot or the Company] or [the Bank] may elect arbitration ... with respect to any [c]laim, even if the [c]laim is part of a lawsuit brought in court. [Grot or the Company] or [the Bank] may make a motion or request in court to compel arbitration of any [c]laim brought as part of any lawsuit(Emphasis supplied.) The emphasized language of the arbitration clause reflects that arbitration was optional rather than mandatory, and the filing of a lawsuit was authorized notwithstanding the fact that the claim was arbitrable. The arbitration clause further provided that it was “made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (‘FAA’).” Section 3 of the FAA provides in part that

[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement[.]

9 USC § 3. In accordance with the procedure set forth under the FAA, the trial court’s decision to stay the pending suit to allow the parties the opportunity to proceed to arbitration based upon the parties’ agreement was proper. Cf. GF/Legacy Dallas v. Juneau Constr. Co., 282 Ga. App. 14, 16-17 (637 SE2d 511) (2006) (ruling that the trial court was required to stay the action when the claim was referable to arbitration under the parties’ agreement); Saud v. Batson-Cook Co., 161 Ga. App. 219, 222 (3) (b) (291 SE2d 249) (1982) (ruling that “[s]ince the trial court correctly ordered arbitration, the correct procedure is to stay judicial proceedings in the ... action and proceed to arbitration”). It thus follows that the trial court did not err in granting a stay, rather than a dismissal, while affording Grot an opportunity to pursue arbitration.

2. Grot asserts that the trial court erred in entering the Bank’s proposed stay order without affording him “the normal 30 day period” to respond to the proposed order and causing him to be responsible for the filing fees associated with the arbitration. Again, no basis for reversal has been shown.

The record shows that on September 28, 2011, the Bank filed its response consenting to Grot’s motion for arbitration, along with a proposed order staying the action for arbitration for the trial court’s consideration. On that same date, the trial court entered the Bank’s proposed order. Several days later, on October 3, 2011, Grot filed an objection to the Bank’s proposed order. Grot’s objection did not contest the proposed order’s provisions for arbitration; rather, Grot argued that the lawsuit was required to be dismissed. Thereafter, the trial court overruled Grot’s objection to the order.

As an initial matter, Grot has cited no legal support for his contention that the trial court should have afforded 30 days for his response to the proposed order. But even if Grot did not receive sufficient notice of the proposed order prior to its entry, the alleged error was harmless.

Even when a trial court adopts a proposed order verbatim, the findings of fact therein are those of the court and may be reversed only if they are clearly erroneous. Anderson v. City of Bessemer City, 470 U. S. 564, 572 (II) (105 SC 1504, 84 LE2d 518) (1985) [.] . . . Orders prepared ex parte do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.

(Citations and punctuation omitted.) Fuller v. Fuller, 279 Ga. 805, 806 (1) (621 SE2d 419) (2005). Here, Grot requested the opportunity to arbitrate the dispute, the Bank did not oppose his request, and the trial court entered the proposed order granting him the relief that he had requested. Notably, the parties did not raise any question as to which party would be responsible for paying the filing fee associated with initiating the arbitration proceedings. Nor did the trial court’s order address the issue. As such, Grot’s arguments have failed to show that the proposed order was clearly erroneous or resulted from a fundamentally unfair process.

3. Grot further argues that the trial court erred in failing to grant his motion for reconsideration of the stay orders. He asserts that the orders should have been vacated since he was not served with copies of the orders upon their execution and entry by the trial court.

The Bank argues that it served its pleadings and proposed orders upon Grot, and that it was the trial court’s duty to notify the parties of its decision after the orders were entered pursuant to OCGA § 15-6-21 (c). Notwithstanding any question regarding who bore the duty to ensure service of the trial court’s orders upon their entry, Grot has failed to show that the alleged error was harmful in this case. The initial stay order favorably granted Grot’s request for arbitration. Although the subsequent order vacated the stay due to the failure to timely initiate the arbitration proceedings, Grot did not request that the order be vacated to allow him additional time to pursue arbitration. Rather, Grot’s only challenge to the stay orders was based upon his desire that the lawsuit be dismissed instead of stayed. As explained in Divisions 1 and 2 herein, the basis for Grot’s challenge to the stay orders was meritless. Moreover, since Grot was afforded the opportunity to challenge the merits of the stay orders during the trial court’s proceedings and in this appeal, and his challenges present no basis for reversal, no harm has been shown from the alleged error. Cf. Glennco, Inc. v. Silver Shoes, Inc., 164 Ga. App. 30, 31-32 (295 SE2d 357) (1982) (concluding that the appellant failed to present any grounds for reversal and the trial court properly exercised its discretion in refusing to set aside a judgment when the party claimed that he had no notice of the court’s published calendar); see generally, Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.”).

4. Grot next argues that the trial court erred in failing to conduct a “scheduling hearing” or conference pursuant to his request. Again, no error has been shown.

Grot has not pointed to any legal authority that required the trial court to conduct a “scheduling hearing” or conference in this civil action. We note that “[i]t is error to refuse to grant a pre-trial hearing and order pursuant to [OCGA § 9-11-16 (a)] where a timely motion to this effect has been entered.” (Citation omitted.) Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 761-762 (11) (242 SE2d 483) (1978). Significantly, however, Grot’s request for a “scheduling hearing” does not appear to be a request for a pretrial conference leading toward the preparation of a pretrial order under OCGA § 9-11-16. Grot did not request the entry of a pretrial order; rather, he “requested] that the [trial] [c]ourt set a date for a Scheduling Conference with both the [p]laintiff and the [defendant and their respective attorneys” and reflected that “there [were] a significant number of issues that need[ed] to be reviewed and/or heard by the [trial] [c]ourt in oral arguments.” Since Grot has failed to show that a “scheduling hearing” or conference was mandated, his claim presents no basis for reversal. Cf. Velasco v. Chambless, 295 Ga. App. 376, 377 (1) (671 SE2d 870) (2008) (concluding that the trial court’s scheduling order was not intended as a pretrial order governed by OCGA § 9-11-16 (b)).

This Court recognizes the difficulty that the trial courts face in attempting to decipher ambiguous pro se pleadings. “While it is true that pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers, it is not the trial court’s responsibility to make out a pro se party’s case, or to rewrite an otherwise deficient pleading in order to sustain an action.” (Citations, punctuation and footnotes omitted.) Campbell v. McLarnon, 265 Ga. App. 87, 90 (2) (593 SE2d 21) (2003). The trial court did not err by failing to read Grot’s request for a “scheduling hearing” as a request for a pretrial conference and pretrial order.

5. Grot further contends that the trial court erred in failing to schedule oral arguments on the motion for summary judgment.

“[0]ral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled ‘Request for Oral Hearing[.]’ ” (Punctuation omitted.) Uniform Superior Court Rule 6.3. “We have held before that the failure to hold a hearing on a motion for summary judgment is not error if the party requesting a hearing fails to comply with Uniform Superior Court Rule 6.3, which requires that any such request be made by a separate and distinct pleading.” (Citation omitted.) Windham & Windham, Inc. v. SunTrust Bank, 313 Ga. App. 841, 844 (2) (723 SE2d 70) (2012). Here, Grot did not file a separate and distinct pleading to request an oral hearing. Rather, his request was buried in his response to the Bank’s motion for summary judgment. Grot’s status as a pro se litigant does not relieve him of the obligation to comply with the substantive and procedural requirements of the law, including the court rules. See Woods v. Hall, 315 Ga. App. 93, 95 (726 SE2d 596) (2012); see also Campbell, supra, 265 Ga. App. at 90 (2) (a trial court is not required to rewrite an otherwise deficient pleading in order to sustain an action). Since Grot failed to comply with the requirements of the court rule, the trial court did not err when it failed to conduct oral arguments on the motion for summary judgment. See Windham & Windham, Inc., supra, 313 Ga. App. at 844 (2).

6. Lastly, Grot contends that the trial court erred in granting the Bank’s motion for summary judgment. Contrary to Grot’s contention, no error has been shown.

Summary judgment is proper when the pleadings and evidence show that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c); Melman, supra, 312 Ga. App. at 270. “Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.” (Punctuation and footnote omitted.) Elwell v. Keefe, 312 Ga. App. 393, 394-395 (718 SE2d 587) (2011).

In support of its debt collection claim, the Bank presented the affidavit of its agent, whose averments, as fully set forth above, laid a proper foundation for admission of the Bank’s business records and account entries. See Melman, supra, 312 Ga. App. at 271-272 (1) (a). The Bank’s motion and affidavit also attached copies of the cardholder agreement, account billing statements, and the offer agreement executed by Grot as the “Authorizing Signatory.” The affidavit and the attached documents reflected that the charges and fees incurred on the account amounted to $8,728.67, with interest accruing at the applicable statement rate of 19.08% in the amount of $3,753.01. The cardholder agreement also provided for the Bank’s recovery of all collection costs, including attorney fees. The Bank had provided the requisite notice for the collection of $1,273.17 in attorney fees under OCGA § 13-1-11 (a) (2), (3). See Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 513-514 (4) (398 SE2d 749) (1990); Gen. Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978). The above evidence established the existence of the debt.

Significantly, although the Bank’s evidence clearly established that the debt was owed, Grot argued that the evidence failed to establish that he was personally liable as the debtor. In denying that he was personally liable for payment of the account, Grot pointed to evidence that the account was in the name of the Company, International Consultants of GA.

Generally, a corporation’s officers and the corporation are entirely separate and distinct entities. See Elwell, supra, 312 Ga. App. at 395. “Contracts may be signed by one acting in a representative capacity, or a representative may make himself liable for the debt of the corporation; this Court examines the language of the contract to determine in what capacity the representative is bound.” (Punctuation and footnotes omitted.) Id. The offer agreement that Grot executed referenced the Company, and reflected that he was the president of the Company. The offer agreement further affirmed as follows:

“I have read the Important Disclosures and Terms of Offer on the back of the letters . . . and I agree on behalf of the Company and myself that the Company and I will be bound as specified therein.”

Although the offer agreement referred to Grot using the terms of “I” and “myself,” it is unclear whether Grot was being referred to in his corporate representative capacity or in his personal capacity. Neither the title nor the body of the offer agreement clearly express whether Grot was executing a personal guaranty of the debt, or whether he was executing the agreement in his representative capacity or in his personal capacity.

Nevertheless, the cardholder agreement stated as follows:

In this Agreement, the words “you,” “your,” and “yours” refer to each person who signed the application for the account... and to anyone else who is authorized to use the account in any way. Except as specifically stated herein, each of you is individually and jointly obligated under this Agreement.

(Emphasis supplied.) The cardholder agreement further stated that “You promise to pay . . . and are liable for all amounts due resulting from the authorized use of your card or account, including any finance charges or other charges due under the terms of this Agreement.” To the extent that Grot signed the offer agreement, whether in his personal or corporate capacity, he agreed to be individually and jointly liable for the debt under the cardholder agreement. See Upshaw, supra, 197 Ga. App. at 513 (3) (“Even though one is acting in the capacity of agent and for the sole benefit of his principal, he may nevertheless by express undertaking bind himself personally.”) (citations and punctuation omitted). Since the language employed in the cardholder agreement reflects that Grot agreed to be individually and jointly liable for the debt, the trial court did not err in granting summary judgment in favor of the Bank. Id.

Decided September 19, 2012

Reconsideration denied October 4, 2012

John B. Grot, pro se.

Clayton D. Moseley, William J. Salter, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       The cardholder agreement provided that “[t]he party initiating arbitration [would] pay the initial filing fee,” but that the party could “seek a waiver of the initial filing fee or any of the Administrator’s other fees (collectively, Administrator’s Fees’) under any applicable rules of the Administrator.” The cardholder agreement further provided procedures for requesting that the Bank pay or reimburse all or part of the Administrator’s fees.

       We note that Grot attaches several exhibits to his appellate brief that cannot be considered in our review. “Documents attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, shall not be considered on appeal.” Court of Appeals Rule 24 (g).

       OCGA § 15-6-21 (c) pertinently provides that “[w]hen he or she has so decided, it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.”

       It is undisputed that Grot received the proposed order containing the 30-day time limitation for initiation of the arbitration proceedings, and he did not object to the time limitation.

       Otherwise, Grot filed a “Request for a Scheduling Hearing” seeking a “Scheduling Conference” with the parties. Grot challenges the denial of his request for a scheduling hearing in a separate enumeration of error, which has been addressed in Division 4 above. Grot’s ambiguous request for a “scheduling hearing” likewise did not comply with the requirements of Uniform Superior Court Rule 6.3 for requesting an oral hearing on the motion for summary judgment.

       Although the trial court was not required to allow oral arguments on the motion for summary judgment in the absence of a request compliant with Uniform Superior Court Rule 6.3, we nevertheless note that it may have been prudent and beneficial for the trial court to hear oral arguments in this case. Perhaps a hearing would have allowed the parties an opportunity to more clearly define and address the issues that existed in this matter.

       The Bank’s suit was filed against Grot personally, and the Bank made no reference to the Company or Grot’s representative capacity. Neither the Bank’s appellate brief, nor the affidavit upon which it relied to establish the debt, point to any provisions in the parties’ written agreements addressing the issue as to whether Grot could be held personally or individually liable for the debt. The cardholder agreement contained in the appellate record is in barely legible small print, which places this Court at a disadvantage in attempting to decipher the applicable terms.

       The “Important Disclosures and Terms of Offer” referenced in the offer agreement have not been included in the record, and thus, we are unable to determine whether those disclosures and terms required Grot to be a co-debtor or personal guarantor of the debt.

       Grot failed to show that an exception to individual and joint liability applied in this case.