text:
    A11A0628.
    DOMINIC v. EUROCAR CLASSICS et al.
    (714 SE2d 388)
   Miller, Presiding Judge.

This case arises out of a contract entered into between S & W Sports Cars, Inc. d/b/a Ferrari of Atlanta (hereinafter referred to as “Ferrari of Atlanta”) and Sam Baez, on behalf of Eurocar Classics, for the repair of Marcus Dominic’s Ferrari. Following a vehicle fire resulting in the total destruction of Dominic’s Ferrari, Dominic sued Ferrari of Atlanta for breach of the repair contract between Ferrari of Atlanta and Eurocar Classics and for negligence during its repair of Dominic’s vehicle. The trial court granted Ferrari of Atlanta’s motion for summary judgment as to both claims, finding that Dominic was not a third-party beneficiary of the repair contract and that Ferrari of Atlanta owed no duty of care to Dominic. Dominic appeals to challenge the trial court’s findings. We discern no error and affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Citations and footnote omitted.) Kaesemeyer v. Angiogenix, Inc., 278 Ga. App. 434, 434 (629 SE2d 22) (2006). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation and footnote omitted.) Id.

So viewed, the record shows that Dominic purchased a 2000 Ferrari 360 Modena with a salvage title from a dealer in California. After making several trips to California to inspect the Ferrari and check the progress of the repairs on it, Dominic had the Ferrari shipped to Atlanta. Dominic inspected the vehicle upon receiving it in Atlanta and found that it was running fine. When Dominic started the vehicle the next morning, however, it began overheating. Dominic testified that the overheating had not been a problem when he inspected the vehicle in California, but that it arose during shipment of the vehicle. Dominic contacted several Ferrari repair shops listed in the Yellow Pages and eventually reached Baez at Eurocar Classics, who indicated that he could repair the vehicle’s overheating problem. Dominic had his Ferrari towed to Eurocar Classics, where he left the vehicle for repair as well as an oil change. A couple of days later, Baez contacted Dominic and advised him that the vehicle needed a thermostat, radiator fan, and relay switches. Dominic authorized Baez and paid him in cash to go forward with the repairs. Before the repairs were completed, however, Baez contacted Dominic to let him know that Eurocar Classics was unable to “bleed” the vehicle’s cooling system (i.e., extract all air pockets in the system in order to have a continuous flow). With Dominic’s permission, Baez drove the vehicle to Ferrari of Atlanta for advice on bleeding the vehicle’s cooling system, as well as on the radiator fans that continued to blow fuses. As set forth in the repair invoice between Ferrari of Atlanta and Eurocar Classics, Ferrari of Atlanta’s diagnosis of the vehicle was the presence of an air pocket in the cooling system and a blown fuse in the radiator. To correct these problems, Ferrari of Atlanta bled the cooling system and replaced the fuse. After Ferrari of Atlanta performed these repairs, it returned Dominic’s vehicle to Eurocar Classics. Dominic then picked up his vehicle from Eurocar Classics, and Dominic testified that the vehicle worked “fine, perfect” on the way home.

After about a week, during which time the Ferrari had been sitting in Dominic’s garage, Dominic started the vehicle and drove it around his neighborhood to ensure the battery did not drain; while he was at a stop sign, his vehicle started overheating again. Dominic drove the Ferrari back to his garage and called Baez about the issue. Baez told Dominic to bring the vehicle back to Eurocar Classics because the cooling system needed more bleeding. A few days later, on May 25, 2006, Dominic had the vehicle towed back to Eurocar Classics for a second time. Dominic testified that he was expecting Baez to bring the vehicle back to Ferrari of Atlanta to have them finish bleeding the system; however, when he went to check the status of Baez’s progress, Dominic saw Baez doing what he thought was bleeding the cooling system again. When Dominic finally retrieved his Ferrari, Baez told him that he bled the cooling system again, and that the cooling system was fixed. Dominic drove the Ferrari home from Eurocar Classics without any overheating problems.

After Dominic’s Ferrari was returned to him for a second time, however, the overheating issue occurred again about a month later, in July 2006. At that time, Dominic had been driving his vehicle on Interstate 20, and after about 20 miles, he noticed coolant spilling out of the radiator; he testified that the radiator cap flew off and hit the back windshield of his vehicle and that the thermostat indicated his vehicle was overheating. Dominic decelerated his vehicle and pulled it over to the emergency lane. Upon opening the engine compartment, Dominic saw that coolant was covering the engine and was continuing to spill out. Dominic called Baez to tell him that his car was overheating again, and Baez told him to bring the vehicle back to Eurocar Classics. Dominic testified that he continued to express his frustration with Baez and his inability to fix the overheating problem, at which point Baez told Dominic that he needed to take the vehicle back to Ferrari of Atlanta because they were the ones who bled the cooling system. Dominic’s response was that he had brought the car to Baez and that Baez was the one who needed to take it back to Ferrari of Atlanta. While Dominic and Baez were talking, the Ferrari caught on fire. The Ferrari was completely destroyed as a result of the fire. Dominic’s expert testified that when the coolant spilled onto the overheated engine, the water in the coolant evaporated out, and the remaining ethylene glycol mixture caught fire. Dominic’s expert also testified, however, that he did not have an opinion as to whether the foregoing situation was caused by the work performed by Ferrari of Atlanta.

In August 2006, Dominic filed a complaint against Eurocar Classics and Baez for conversion, breach of contract, negligence, and punitive damages flowing from the repair of his Ferrari. Dominic thereafter amended his complaint to include Ferrari of Atlanta as a defendant and raised against it a claim for breach of contract, on the theory that Dominic was a third-party beneficiary of the repair contract between Ferrari of Atlanta and Eurocar Classics; Dominic also raised counts of negligence and punitive damages against Ferrari of Atlanta. Ferrari of Atlanta filed a motion for summary judgment. Following a hearing, the trial court issued an order granting the motion, from which Dominic now appeals.

1. In his first enumeration of error, Dominic argues that the trial court erred in finding that he was not a third-party beneficiary of the repair contract between Eurocar Classics and Ferrari of Atlanta. We disagree.

As a general rule, one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract. See OCGA § 9-2-20 (a); see also Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (1) (367 SE2d 278) (1988) (“As a general rule, one not in privity of contract with another cannot maintain an action against him for breach of the contract.”) (citation and punctuation omitted). Nevertheless, OCGA § 9-2-20 (b) provides an exception to this general rule insofar as “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” “A third-party beneficiary contract is one in which the promisor engages to the promisee to render some performance to a third person.” (Citation and punctuation omitted.) Kaesemeyer, supra, 278 Ga. App. at 437 (1). “A third party has standing to enforce that type of contract if it clearly appears from the contract that it was intended for his benefit; the mere fact that he would benefit from performance of the contract is insufficient.” (Citation and punctuation omitted.) Id. Thus, “a third-party beneficiary may be created only by the express terms of the contract. . . .” (Citation omitted.) Perry Golf Course Dev. v. Housing Auth. of City of Atlanta, 294 Ga. App. 387, 388 (1) (670 SE2d 171) (2008).

Here, there is no dispute that the repair contract at issue was between Ferrari of Atlanta and Eurocar Classics, and that Dominic was not a named party to that repair contract. Thus, absent such privity of contract between Ferrari of Atlanta and Dominic, third-party beneficiary status is Dominic’s sole mode of recovery for alleged violations of the repair contract. However, Dominic has failed to point to any express oral or written contract terms specifically identifying him as a third-party beneficiary of the repair contract between Ferrari of Atlanta and Eurocar Classics. Here, the repair invoice constituted the only writing between Eurocar Classics and Ferrari of Atlanta regarding their repair agreement. The invoice clearly listed Eurocar Classics as the customer for whom Ferrari of Atlanta performed repairs; while the invoice referenced the “owner” — specifically, “A owner states that one radiator fan will not come on, advise” — Dominic himself admitted that this statement was nothing more than a description of the problem that Baez reported to Ferrari of Atlanta. Moreover, the record reflects that Eurocar Classics was the party who directly paid Ferrari of Atlanta for the repair work performed on Dominic’s vehicle. Dominic’s affidavit testimony indicates that the repair contract was performed for the benefit of Baez and Eurocar Classics: (i) that Baez “took the [v]ehicle to Ferrari of Atlanta in relation to the work that I paid him for and thus he hired them as a consultant for himself”; and (ii) that Baez returned the vehicle to Dominic “without ever informing me that Ferrari of Atlanta had worked on the fvjehicle on his behalf.” Finally, there is no record evidence showing that Ferrari of Atlanta had any knowledge that Dominic was the owner of the Ferrari until it was served with Dominic’s lawsuit. Thus, we discern no genuine dispute as to the fact that the repair contract was made for the benefit of the named parties, and any benefit which flowed to Dominic was merely incidental. See Hubbard v. Dept. of Transp., 256 Ga. App. 342, 352 (4) (568 SE2d 559) (2002).

Rather than point to any conflicting record evidence, the crux of Dominic’s argument is that the particular circumstances of his case are those under which he, as the consumer, is a third-party beneficiary by operation of law. Dominic specifically claims that where an owner takes his vehicle to a mechanic and the mechanic takes the vehicle to another, more specialized repair facility, both the mechanic and the specialized repair facility know or should know that the beneficiary of the work is the vehicle’s owner. We disagree.

Dominic offers no legal authority supporting his assertion. The legal authority that does exist confers this status only through the presence of an express contract term tending to show that promises were made for the express benefit of a third party. See, e.g., Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) (324 SE2d 776) (1984) (finding there was nothing in a general contract “tending to show that promises were made by the [property owner] for the benefit of [the subcontractor],” and that, at best, it incidentally benefitted the subcontractor). The absence of any such oral or written contract provisions in the instant case foreclosed Dominic’s status as an intended third-party beneficiary to the repair contract. Accordingly, Dominic had no standing as a third-party beneficiary to bring a breach of contract action pursuant to the repair contract between Ferrari of Atlanta and Eurocar Classics. Ferrari of Atlanta was therefore entitled to judgment as a matter of law.

2. Dominic also sought to recover damages for his vehicle on the theory that Ferrari of Atlanta negligently performed repair work on his Ferrari. In support of his negligence claim, Dominic argued that Ferrari of Atlanta owed him a duty of care because he was a third-party beneficiary to the repair contract between Ferrari of Atlanta and Eurocar Classics. The trial court, however, found that Ferrari of Atlanta owed no duty of care to Dominic that was independent of the repair contract, and that therefore, Dominic’s negligence claim failed as a matter of law. We agree.

While privity of contract is generally not necessary to support an action in tort, “if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract. . . .” OCGA § 51-1-11 (a). Thus, “[w]here privity of contract between the parties does not exist, to constitute a tort, the duty must arise independent of the contract.” (Punctuation omitted.) J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 555 (a) (644 SE2d 440) (2007).

Dominic claims that Ferrari of Atlanta breached its alleged duty by failing to properly bleed the radiator system. The duties allegedly owed by Ferrari of Atlanta arose only from its contractual duty to repair the vehicle pursuant to the repair contract between Ferrari of Atlanta and Eurocar Classics. Dominic asserts no legal duty that Ferrari of Atlanta owed independent of that repair contract. As Dominic was neither in privity to the repair contract between Ferrari of Atlanta and Eurocar Classics, nor an intended third-party beneficiary thereto, Ferrari of Atlanta was entitled to judgment as a matter of law on Dominic’s negligence claim.

Decided July 13, 2011.

Ernest N. Tate, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, W. Jason Pettus, Skedsvold & White, Bryce W. Mowbray III, Georginia B. Howard, for appellees.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Dominic stated in his affidavit that at the time he picked up his Ferrari from Eurocar Classics, Baez did not inform him that Ferrari of Atlanta had worked on the vehicle.

       Dominic later amended his complaint to include a claim of fraud against Baez.

       The trial court also granted summary judgment in favor of Baez and Eurocar Classics as to Dominic’s claims of fraud, conversion, and punitive damages. The rulings of the trial court with respect to Eurocar Classics and Baez, however, are not at issue in this appeal.

       Thus, we note that Dominic’s argument consists of nothing more than unsupported legal conclusions that are without probative value, and which cannot prevent the entry of summary judgment. Morris v. Gavin, Inc., 268 Ga. App. 771, 772 (603 SE2d 1) (2004).

       Dominic apparently argues that a duty of care arose independently to the repair contract insofar that Ferrari of Atlanta knew that Baez “is in the repair industry as a mechanic and allowed him access to its garage, the type of access that is only allowed to persons in the industry.” To the extent Dominic is attempting to assert an exception to the privity requirement, such exists “in cases of negligent misrepresentation by a professional, reasonably relied upon by a foreseeable person or class of persons.” (Citations and punctuation omitted.) J. Kinson Cook, supra, 284 Ga. App. at 555 (a). Nevertheless, “the exception to the privity requirement does not apply here,” where Dominic’s claims against Ferrari of Atlanta do not allege negligent misrepresentation against Ferrari of Atlanta. Id.

       See supra discussion Division 1.

       Because Dominic’s negligence claim against Ferrari of Atlanta is foreclosed by the absence of a duty of care, we need not address Dominic’s arguments on appeal regarding the proximate cause element of his negligence claim. We note, however, that the trial court did in fact find that the issues of proximate and intervening causes would have been questions for the jury in this case (had there been a finding that Ferrari of Atlanta owed Dominic a duty of care).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A0649.
    SUTTER CAPITAL MANAGEMENT, LLC et al. v. WELLS CAPITAL, INC. et al.
    (714 SE2d 393)
   Doyle, Judge.

Wells Capital, Inc., and Wells Partners, L.P (collectively, “Wells”), filed suit against Sutter Capital Management, LLC, and Sutter Opportunity Fund 3, LLC (collectively, “Sutter”), alleging that Sutter misappropriated a confidential list of Wells’s investors in violation of Georgia’s Trade Secrets Act. The trial court granted summary judgment to Wells, entering final judgment in the amount of $667,304.51, and Sutter appeals. We reverse, for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the material portions of the record show that Wells Real Estate Funds I through XII were Georgia public limited partnerships. Wells Capital, Inc., is a general partner of Wells Real Estate Funds I, II, and III, and Wells Partners, L.P, is a general partner of Wells Real Estate Funds IV through XII. Investors in the partnerships were limited partners. Wells maintains a list of relevant data for each of the investors in the partnerships, including their addresses.

Sutter Capital Management’s business “[i]s to manage private investment funds that are invested mostly in real estate limited partnerships purchased in the secondary market.” Sutter Opportunity Fund 3 “is one of the funds managed by Sutter Capital Management whose purpose is to invest mostly in real estate limited partnerships in the secondary market.” Sutter’s goal is to acquire real estate limited partnership units at discounts and then resell them for a profit.

Ira J. Gaines, a self-described “limited partnership buyer,” was an investor/limited partner in the Wells partnerships at issue in this case. The Wells partnership agreements required that the general partners maintain a list of the limited partners, “which shall be available for inspection by any limited partner or its designated representative.” As a condition to becoming a Wells partner, however, Gaines executed an addendum to his transfer and assignment agreement in which he agreed to “only request a copy of the list of names and addresses of the Limited Partners for purposes reasonably related to [his] Interest as a partner in the Partnership” and “not [to] request the names and addresses of the Limited Partners for the making of a tender offer to the Limited Partners in the Partnership, the selling of such list, or any other commercial purposes.”

Gaines was also a creditor of Sutter Capital Management and an investor/owner in Sutter Opportunity Fund 3, LLC. In 2004, the president of Sutter Capital Management, LLC, advised Gaines that Sutter wanted to obtain Wells’s investor lists so that it could mail mini-tender offers to the limited partners for the purchase of Wells’s partnership units. Gaines then made a request to the Internal Revenue Service (“IRS”) for copies of Wells’s tax returns, including attachments, which contained a list of all of the partners, along with additional information regarding each partner, including his/her address. At the time, the IRS would provide such information regarding other limited partners to an existing limited partner in a partnership. The IRS granted the request and shipped the documents to Sutter’s office.

Upon receipt, Sutter provided the list of investors and their addresses to Business Services Network, Inc. (“BSN”), an entity Sutter hired to create mailing lists from the information. BSN then mailed mini-tender offers on Sutter’s behalf to Wells’s limited partners, seeking to purchase units in the partnerships. Multiple Wells investors then sold their units to Sutter. As a condition to becoming a partner, Sutter also executed the same addendum that Gaines executed, agreeing to only request a list of investors “for purposes reasonably related” to the partnership interest and not to request the information for the purpose of making tender offers.

Wells filed suit against Sutter, alleging Sutter misappropriated confidential lists of Wells investors, which constituted trade secrets. The parties then filed cross-motions for summary judgment. Following oral argument, the trial court denied Sutter’s motion for summary judgment and granted summary judgment to Wells, awarding damages in the amount of $667,304.51.

Sutter appeals the trial court’s order in several enumerations, arguing, inter alia, that the Wells investor lists did not constitute trade secrets. We agree.

“To obtain relief under the Georgia Trade Secrets Act, OCGA § 10-1-760 et seq., [Wells] must demonstrate both that the information in question constitutes a ‘trade secret’ as defined by OCGA § 10-1-761 (4) and that [Sutter] misappropriated that trade secret.” The Act defines “trade secret” as

information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information: (A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Decided July 13, 2011

Womble, Carlyle, Sandridge & Rice, James Connelly, Mark A. Rogers, for appellants.

Pretermitting whether Wells made reasonable efforts to maintain the secrecy of the lists, Wells has failed to demonstrate that the lists “[d]erive[ ] economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.”

The position statement that Wells mailed to its limited partners — which recommended that the partners reject Sutter’s tender offer — specifically states: “Whether or not you transfer your units will have no direct financial impact on the general partners or their affiliates.” Wells’s 30 (b) (6) corporate representative, vice president, and chief of staff admitted at deposition that none of the partnership transfers to Sutter had any direct financial impact on the general partners or their affiliates related to the partnership. It follows, therefore, that there is no economic value to Wells in maintaining the secrecy, if any, of the lists as it relates to the mini-tender offers. And Wells has failed to provide any other possible basis to conclude that the secrecy of the lists has economic value, confusing the damages it allegedly sustained in drafting and mailing its position statement to the limited partners in response to Sutter’s mini-tender offers with the requisite economic value of the secrecy of the investor lists.

Thus, because Wells has failed to demonstrate that the investor lists and addresses constituted a trade secret, Wells’s claim fails as a matter of law. The trial court erred by granting summary judgment to Wells and denying Sutter’s motion for summary judgment.

Judgment reversed.

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

Anderson, Tate & Carr, Thomas T. Tate, Elizabeth Clack-Freeman, Troutman Sanders, William M. Droze, for appellees.

       See OCGA § 10-1-760 et seq.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Wells is described as “a real estate venture whose business is the collection of rent from leased properties.”

       Gaines deposed that he was a limited partner in approximately 800 limited partnerships.

       Sutter’s president testified that Gaines approached him and offered to obtain the information regarding Wells investors from the IRS. Gaines deposed that Sutter’s president approached Gaines’s secretary.

       See 26 USC § 6103 (e) (1) (c).

       As of July 17, 2008, Sutter Opportunity Fund 3 had accumulated 228,798 units in the Wells funds.

       In its order, the trial court found that Wells had been required under the Securities and Exchange Act of 1934 to provide each of the approximately 30,000 limited partners with a statement disclosing the partnership’s position or recommendation regarding any tender offer. The court concluded that Wells incurred $667,304.51 in costs and expenses, including attorney fees and printing and shipping costs, in providing its written statement to the partners.

        Wachovia Ins. Svcs. v. Fallon, 299 Ga. App. 440, 445 (3) (682 SE2d 657) (2009).

       (Emphasis supplied.) OCGA § 10-1-761 (4).

       OCGA § 10-1-761 (4) (A).

       There is no allegation that Sutter used the list to compete in some way with Wells’s business.

       See Vito v. Inman, 286 Ga. App. 646, 649-650 (2) (649 SE2d 753) (2007) (defendant was entitled to summary judgment as to claim for misappropriation of trade secrets because podiatrist plaintiff failed to produce evidence that he derived some economic value in the secrecy of his patient list); OCGA § 10-1-761 (4) (A).


author: Miller, Presiding Judge.

text:
    A11A0657.
    BROWN v. THE STATE.
    (714 SE2d 395)
   Miller, Presiding Judge.

Following a jury trial, Samuel E. Brown was convicted of one count of rape (OCGA § 16-6-1 (a) (1)), one count of statutory rape (OCGA § 16-6-3 (a)), one count of aggravated sexual battery (OCGA § 16-6-22.2), one count of aggravated child molestation (OCGA § 16-6-4 (c)), and one count of aggravated sodomy (OCGA § 16-6-2 (a) (2)). Brown appeals, contending that the trial court erred in admitting hearsay testimony given by the sexual assault nurse examiner (the “Examining Nurse”) and finding that he had waived his objection to the testimony. In the alternative, Brown asserts that if his challenge to the Examining Nurse’s testimony was waived, his trial counsel was ineffective in failing to preserve the issue. For the reasons that follow, we discern no reversible error and affirm.

Viewed in the light most favorable to the jury’s verdict (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)), the evidence shows that in the mid-afternoon of May 30, 2004, Brown drove M. B., his 14-year-old cousin, to a nearby park where she watched him play baseball. After the game, Brown drove M. B. home. While en route, Brown made several sexually suggestive remarks to M. B. After they arrived at M. B.’s house, Brown followed M. B. through the front door, forcibly took her to her bedroom, and threw her onto her bed. Brown then forced his penis into M. B.’s vagina, performed cunnilingus on M. B., placed his finger in her vagina, and otherwise touched her vagina with his penis. Following these events, Brown kissed M. B. on her cheek, told her, “I’m sorry cousin,” and left.

After the incident, M. B. called B. R., and while hysterical and crying, reported that she had been raped. Later that evening, M. B. also reported the incident to her mother. M. B.’s mother took her to a local hospital, where she was examined by the Examining Nurse. The Examining Nurse testified that during her examination, she observed bruising to M. B.’s clitoral area, which was consistent with M. B.’s description of the struggle and incident. The hospital contacted the police, and following an investigation, Brown was arrested.

1. Brown argues that the trial court erred in admitting hearsay testimony from the Examining Nurse, which he contends improperly bolstered the victim’s credibility. Although the trial court ruled that the issue had been waived, Brown asserts that his objection at trial was sufficient to preserve the issue.

(a) We agree that Brown preserved the issue by interposing a timely objection before the challenged testimony was admitted. It is axiomatic that

a party must make either a written or oral objection or motion timely prior to or at trial so that the trial court may rule upon the issue to preserve it, or such issue is waived and not preserved. A party is not allowed to remain silent regarding an objection or grounds for error and gamble on a favorable jury verdict, expecting that he can raise such issue later in a motion for new trial.

(Citations omitted.) Head v. CSX Transp., 259 Ga. App. 396, 397 (577 SE2d 12) (2003).

Here, Brown’s counsel objected to the Examining Nurse’s testimony before it was given. The trial court overruled the objection in favor of a limiting instruction. Brown’s counsel requested that his objection as to improper bolstering be noted for the record, to which the trial court responded, “So noted.” Counsel thereafter offered no objection to the limiting instruction which the trial court gave. After the trial court gave the limiting instruction, the Examining Nurse proceeded to testify.

Citing Sumlin v. State, 283 Ga. 264 (658 SE2d 596) (2008), the State argues that Brown failed to preserve his objection to the Examining Nurse’s testimony because he failed to renew his objection to her testimony immediately after the trial court gave its limiting instruction. The rule of Sumlin, however, does not apply in this case, where Brown’s counsel did not move for a mistrial. Cf. id. at 266 (2) (requiring that counsel renew his or her motion for mistrial immediately after such instruction to preserve the issue for appeal). Thus, contrary to the State’s argument, counsel for Brown was not required to renew his objection following the trial court’s limiting instruction in order to preserve the objection for appeal. Rather, “[standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal[.]” (Emphasis supplied.) Whitehead v. State, 287 Ga. 242, 246 (2) (695 SE2d 255) (2010). Since the record shows that Brown timely objected before the testimony was admitted, we conclude that the trial court erred in ruling that Brown’s challenge to the testimony had been waived.

Notwithstanding the trial court’s erroneous ruling, no basis for reversal has been shown since Brown was not harmed thereby. Significantly, we conclude that the Examining Nurse’s testimony was properly admitted, as fully explained below. See O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010) (“[I]t is fundamental that harm as well as error must be shown for reversal.”) (citation and punctuation omitted).

(b) Brown’s claim that the trial court erred in admitting the Examining Nurse’s hearsay testimony, over his objection, is without merit.

In making his objection at trial, Brown’s counsel clarified that he did not object to the Examining Nurse’s testimony to the extent that the statements were made for purposes of medical diagnosis or treatment, which were admissible under the hearsay exception. See OCGA § 24-3-4. Rather, Brown’s challenge to the Examining Nurse’s testimony is based upon her recounting of M. B.’s statements regarding the events leading up to the rape incident and identification of Brown as the perpetrator, which Brown argues were not admissible under the medical diagnosis and treatment exception and improperly bolstered M. B.’s credibility.

Brown is correct that M. B.’s statements to the Examining Nurse identifying Brown as her perpetrator and providing information unrelated to the purpose of medical diagnosis and treatment were outside the scope of the hearsay exception defined in OCGA § 24-3-4. See Miller v. State, 194 Ga. App. 533, 534 (2) (a) (390 SE2d 901) (1990).

“It is [also] true that a witness’ credibility may not be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Citation and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 636 (1) (c) (667 SE2d 899) (2008). Nevertheless, a witness’s prior consistent statement is admissible under circumstances in which

(1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.

(Footnotes omitted.) Tuff v. State, 278 Ga. 91, 94 (4) (597 SE2d 328) (2004). “Even then, to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.” (Punctuation and footnote omitted.) Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009).

As the trial court ruled here, challenging M. B.’s credibility was central to Brown’s defense. During his cross-examination of M. B., trial counsel attempted to demonstrate inconsistencies in her testimony and asserted that M. B. had changed her initial testimony regarding whether Brown took his pants off at the time of the incident. In accordance with the foregoing line of attack, trial counsel argued in his closing argument that M. B. was not believable. Moreover, at the motion for new trial hearing, trial counsel testified that his strategy was to attack the victim’s credibility and show that her claims were fabricated. It is undisputed that M. B.’s statements to the Examining Nurse predated her allegedly fabricated trial testimony. Under these circumstances, we conclude that the admission of the complained of testimony was not erroneous. See Tuff, supra, 278 Ga. at 94 (4); Dorsey v. State, 252 Ga. App. 33, 34 (1) (555 SE2d 498) (2001).

Even if we were to hold otherwise that the testimony was inadmissible hearsay, the trial court’s instructions to the jury limited the use of the testimony and expressly stated that the “evidence was not offered to prove the truth of what M. B. reported to the nurse[.]” The limiting instruction cured any possible error from the admission of the testimony. See Watson v. State, 235 Ga. 461, 464 (2) (219 SE2d 763) (1975).

Decided July 13, 2011.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Cania Brown-Gordon, Assistant District Attorney, for appellee.

2. Since we have concluded that trial counsel properly preserved his objection to the testimony of the Examining Nurse, we need not address Brown’s ineffective assistance claim based upon trial counsel’s alleged failure to do so.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Brown further argues the trial court erroneously admitted hearsay testimony given by the victim’s friend, B. R. His enumerations of error, however, raise errors solely related to the Examining Nurse’s testimony and do not assert error based upon B. R.’s testimony. “An appealing party may not use his brief to expand his enumeration of errors by arguing the incorrectness of a trial court’s ruling not mentioned in the enumeration.” (Footnote omitted.) Anderson v. State, 251 Ga. App. 785, 786 (554 SE2d 811) (2001). See also Manley v. State, 287 Ga. App. 358, 360 (4) (651 SE2d 453) (2007) (“a party cannot expand her enumerations of error through argument or citation in her brief’) (punctuation and footnote omitted). Because Brown has not enumerated this claim as error, his argument provides no basis for appellate review.

       In its limiting instruction, the trial court charged the jury to consider such testimony “[as] not offered to prove the truth of what M. B. reported to the nurse, but [as] offered simply to explain what information was provided for medical examination and treatment.”

       “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.” OCGA § 24-3-4.

       We note that the Child Hearsay Statute, OCGA § 24-3-16, allows testimony from both the child victim, as well as witnesses to whom the child later described the sexual act, even if the hearsay may be bolstering. See Bell v. State, 294 Ga. App. 779, 781 (4) (670 SE2d 476) (2008). Significantly, however, the Child Hearsay Statute only applies to “[a] statement made by a child under the age of 14 years[.]” OCGA § 24-3-16. Since M. B. was 14 years old when she made the disclosures at issue, the Child Hearsay Statute does not apply in this case.


author: Phipps, Presiding Judge. McFadden, Judge,

text:
    A11A0678.
    THE STATE v. PADIDHAM.
    (714 SE2d 657)
   Phipps, Presiding Judge.

Jyothiswar Padidham was charged with driving under the influence (DUI) and speeding. He moved to suppress certain evidence, including the result of an alco-sensor test administered during the traffic stop and the results of an Intoxilyzer 5000 test administered in jail. The trial court granted the motion, and the state appeals. We reverse.

The facts relevant to the motion to suppress are undisputed. On February 12, 2009, a police officer stopped Padidham’s car for speeding. When the officer approached the car, he detected an odor of alcohol and noticed that Padidham’s eyes were bloodshot. At the officer’s request, Padidham got out of his car and submitted to several field sobriety tests. The officer contacted another officer to bring an alco-sensor device to the scene. While waiting for the other officer to arrive, he told Padidham to return to his (Padidham’s) car because of the weather. The officer told Padidham that he had stopped him for speeding, that he was going to write him a ticket, and that he thought Padidham was too intoxicated to drive and was going to verify that. About eight to ten minutes later, when the second officer arrived, Padidham provided a breath sample; it showed the presence of alcohol. The officer then placed Padidham under arrest for DUI, handcuffed him and placed him in the police car. At that point, the officer read Padidham the Georgia implied consent notice, which advised him of, among other things, his right to undergo additional chemical tests at his own expense and from personnel of his own choosing; at the suppression hearing, the officer did not testify whether (or when) he advised Padidham of his Miranda rights.

At the jail, at about 2:11 a.m., officers gave Padidham a breath test using the Intoxilyzer 5000, which yielded two results (0.129 and 0.126). Padidham was not informed of the test results or given a copy of the test results until 10:00 a.m, as he was leaving the jail.

Padidham moved to suppress the alco-sensor test result on the basis that, inter alia, it was administered before he was read the implied consent notice or advised of his rights against self-incrimination, even though he was in custody at the time. He also sought to exclude the results of the Intoxilyzer 5000 breath test, arguing that he was effectively denied the right to obtain an independent test because he was not advised of the test results at the time the test was administered.

In its order granting the motion to suppress, the trial court found that Padidham was in custody when the officer told him that he was too intoxicated to drive and directed him to sit in his (Padidham’s) car. The court found that Padidham should have been advised of his Miranda rights before the alco-sensor test was administered; because he had not been so advised, the alco-sensor test result was inadmissible. Further, the court concluded that the Intoxilyzer 5000 breath test results were inadmissible because they were not delivered to Padidham immediately upon completion of the test.

1. The state contends that the alco-sensor test result was suppressed in error because Padidham was not in custody when the test was administered. We agree.

“An individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way.” “[A]lco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where . . . administration of the tests has not been preceded by a Miranda warning.” Although a motorist is deprived of his freedom of action during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda, Instead, “[t]he test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary.” “[W]hether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.” The trial court’s determination that Padidham was in custody prior to taking the alco-sensor test was clearly erroneous.

Padidham was permitted to wait in his own car rather than a police car; he was not handcuffed; and he was told by the officer that he had been stopped for speeding and was going to be given a ticket. The officer told Padidham that he thought he was too intoxicated to drive, but that he was going to verify this suspicion. He did not tell Padidham that he would be arrested. Padidham may not have been free to leave during the eight to ten minutes that elapsed before the alco-sensor test was administered, but not every detention is an arrest.

Under the circumstances presented here, a reasonable person in Padidham’s position would conclude that his freedom was only temporarily curtailed and that a final determination of his status was simply delayed. The trial court erred in granting the motion to suppress the alco-sensor test result.

2. The state contends that the trial court erred in suppressing the Intoxilyzer 5000 breath test results. It argues that Georgia law requires only that the breath test be completed according to the methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation (GBI) (set forth in Ga. Comp. R. & Regs. r. 92-3-.06), and that the state followed those methods. The state contends further that, contrary to Padidham’s assertion and the trial court’s ruling, it was not required to immediately give Padidham a copy of the test results for them to be admissible. We agree that the court erred in suppressing the test results.

Inasmuch as the issue raised involves uncontroverted evidence “and no questions of credibility are presented, we will conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

OCGA § 40-6-392 (a) pertinently provides that upon the trial of an action arising out of acts allegedly committed in violation of OCGA § 40-6-391, evidence of the amount of alcohol in a person’s breath shall be admissible.

Pursuant to [OCGA § 40-6-392 (a) (1) (A)], the Division of Forensic Sciences adopted the following methods for conducting an evidential breath alcohol analysis: (1) The analysis shall be conducted on an Intoxilyzer Model 5000 . . . ; (2) the analysis shall be performed by an individual holding a valid permit, in accordance with Rule 92-3-.02 (2); and (3) the testing instrument shall have been checked periodically for calibration and operation, in accordance with Rule 92-3-.06 (8) (a). Further, “administrative, procedural, and/or clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis.” Under OCGA § 50-13-8, we take judicial notice of any rule which has become effective pursuant to the Georgia Administrative Procedure Act, OCGA §§ 50-13-1 through 50-13-23.

Padidham does not argue that the state failed to comply with the rules and regulations set forth by the GBI. Instead, he argues that the state violated a provision of the “Georgia Bureau of Investigation Division of Forensic Sciences Intoxilyzer 5000 Georgia Operator’s Training Manual,” which he says requires the operator to give the test subject a copy of the test result. He contends that, pursuant to the training manual, he should have been presented with a copy of the breath test results (or at least informed of the results) at the time the test was administered. Notably, Padidham does not claim that he either inquired about the test results or requested an independent test at the time of testing.

Decided July 13, 2011

Rosanna M. Szabo, Solicitor-General, Jeffrey P. Kwiatkowski, Karen M. Seeley, Assistant Solicitors-General, for appellant.

In granting the motion to suppress, the trial court expressly determined that the cited training manual required the operator to give a copy of the test results to the subject. Further, the court concluded that, although the training manual did not specify when the results must be given to the test subject, they should have been given to him immediately after they were printed. However, the training manual has not been made a part of the record and cannot be considered on appeal. Moreover, administrative, procedural, and clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis. And, any deviation from the procedure purportedly set out in the training manual would go to the weight rather than the admissibility of the test results. The trial court erred in granting the motion to suppress the results of the Intoxilyzer 5000.

Judgment reversed.

Andrews, J., concurs. McFadden, J., concurs fully and specially.

McFadden, Judge,

concurring fully and specially.

I disagree with the majority only as to the sentence supported by footnote 13. The State, as appellant, had the burden to include in the record all of the materials necessary for this court to decide the appeal. If the State had contended that the training manual required something other than what the trial court found, it would have been the State’s burden to include the manual in the appellate record. Thompson v. State, 248 Ga. App. 74, 75 (544 SE2d 510) (2001). It was not Padidham’s burden, as appellee, to show that the trial court summarized it correctly. But as the manual is not necessary to decide the appeal, I otherwise concur fully.

James K. Sullivan, for appellee.

       See OCGA § 40-5-67.1 (b) (2).

        Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010) (citation omitted).

        State v. Norris, 281 Ga. App. 193, 197 (635 SE2d 810) (2006) (footnote omitted).

        Waters, supra.

        Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (citation and punctuation omitted).

       Id. (citation and punctuation omitted.).

       Id.

       Id.; see State v. Dixon, 267 Ga. App. 320, 321 (599 SE2d 284) (2004) (reversing grant of suppression motion where defendant was not handcuffed or placed in the back of a patrol car and was not informed that the officer intended to arrest him, even though the officer may have decided that he intended to arrest the defendant before administering the alco-sensor test); State v. Pierce, 266 Ga. App. 233, 234-236 (1) (596 SE2d 725) (2004) (reversing trial court’s grant of motion to suppress, holding that defendant was not in custody for Miranda purposes where defendant was detained outside of his car while officer summoned another officer from DUI task force, closed defendant’s car door, explaining he was doing so “before some other drunk took it off,” and left defendant standing near car while he talked to other officer); State v. Foster, 255 Ga. App. 704, 706 (566 SE2d 418) (2002) (reversing grant of suppression motion where officer told defendant that if he drove a car from the bar, he would be arrested, but, after defendant drove, officer did not actually arrest him until after he performed field sobriety tests). See also Owens v. State, 308 Ga. App. 374, 379-380 (2) (707 SE2d 584) (2011) (trial court did not err in denying motion to suppress where defendant was detained 20 minutes after initial portable breath test to conduct additional test, where second test was to test for accuracy of first test and he was not handcuffed or otherwise restrained while he waited near rear of his car, as a reasonable person could conclude that the detention was temporary); Waters, supra (trial court was authorized to find that a reasonable person would believe her freedom was only temporarily curtailed pending further investigation, where officer told her he was calling for officer specializing in DUI investigations to assist in determining her ability to operate her vehicle safely, and she was not placed in handcuffs or in a police car, but directed to stand in front of the patrol car until the other officer arrived). Compare Norris, supra at 196 (defendant’s detention ripened into a custodial arrest when he was told to turn around and place his hands behind his back, even though he was not expressly told he was under arrest).

       See Pierce, supra at 236 (1).

       See State v. Palmaka, 266 Ga. App. 595, 596-597 (597 SE2d 630) (2004).

       Id. (citation omitted).

        State v. Naik, 259 Ga. App. 603, 604 (577 SE2d 812) (2003) (citing Ga. Comp. R. & Regs, r. 92-3-.06, and Rowell v. State, 229 Ga. App. 397, 398 (1) (a) (494 SE2d 5) (1997) (recognizing Rule 92-3-.06 as embodying methods for breath tests approved by the GBI)) (citations and punctuation omitted).

       See Ponce v. State, 279 Ga. App. 207, 210-211 (2) (630 SE2d 840) (2006).

       See Palmaka, supra.

       Id.


text:
    A11A0680.
    BARNA LOG HOMES OF GEORGIA, INC. v. WISCHMANN.
    (714 SE2d 402)
   Doyle, Judge.

Barna Log Homes of Georgia, Inc. (“Barna”), filed an action against Randy Wischmann alleging claims for breach of contract and libel. Wischmann filed a motion to dismiss or, alternatively, motion for summary judgment, which the trial court treated as a motion for summary judgment and granted as to Barna’s libel claims. Barna now appeals the trial court’s grant of partial summary judgment, and we affirm for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Barna is a distributer of manufactured log home packages built by Barna Log Homes, LLC. In June 2006, Wischmann entered into a contract with Barna to purchase a log home package. In October 2007, Wischmann cancelled the home contract and offered to purchase a log siding package. Thereafter, Wischmann cancelled the siding contract.

During this time, Wischmann made two written statements regarding his experience dealing with Barna, which are the subject of Barna’s libel claims. The first statement was a post made on a website on October 23, 2007, and the second was an e-mail written by Wischmann and addressed to Jason Smith of the Mountain Creek Hollow Homeowners’ Association (representing the community in which Wischmann’s intended home would be built). The website posting, which Wischmann made to the section of the website in which customers may post reviews and ratings about various companies providing services related to log homes, was titled “Caution to New Build” and stated:

No problem with Barna directly, but the distributor, Barna Log Homes of GA, was grossly overcharging for the materials and did a poor job on the engineering overview and window specifications. Luckily, my builder caught the problems before we were too far along. Very surprised by the situation because the local distributor had a great reputation with everyone I talked to and I like the owner. In my meetings with him, I felt that I was being well taken care of but when we got to the details it was not the case. Very disappointed.

Wischmann provided a rating of 1.5 out of 5 points with his review.

The e-mail from Wischmann was five paragraphs long and described the state of construction on his lot. Wischmann explained that he was originally working with Barna, but he cancelled his agreement with them, explaining some of the reasons for that decision. First, Wischmann explained that “[w]ith the housing recession going on, I asked [Barna] to give me some relief on the basic building materials.” Wischmann contended that his builder investigated the local costs for certain building items and found that “[Barna] was basically doubling the cost.” Wischmann stated that “[i]n [his] business experience, a distributor that does not handle or inventory materials gets 5-10% mark up. [Barna] was charging 100%. ... I will end up saving between $40-50,000 on the material cost alone.”

Wischmann continued, explaining that his builder was “concerned about some items” and therefore had “the structural engineering” of the plans checked by a third party. Wischmann stated that it

[t]urns out th[at] Barna had significantly undersized some of the load bearing structure!,] and we have had to add additional laminated wood beams and support posts. [The representative from Barna] assured me that [Barna] had checked the engineering and everything was sound, but I don’t think it was done.

Wischmann also explained that he originally ordered aluminum clad windows and doors through Barna, but contended that “they were doing a very sloppy job[,] which would have resulted! 1 in major mistakes! ] if we had continued with them. It would have been a significant cost overrun because of errors.” Wischmann stated that

my builder, the window supplier!,] and I am stunned at the quality of work and support from [Barna], All of us had a very high opinion of [the company] prior to this[,] and it is a huge disappointment. Since this was my first home building experience, I was expecting, and [Barna] assured me that I would get complete oversight with him. Between my builder and [Barna], everything would be taken care of. It probably would have too, but at a much higher cost than I was budgeting for and expecting. I am guessing that my final cost will be about $325,000 vers[u]s $400,000 if I would have stayed with Barna.

Wischmann concluded the e-mail by praising the work of his builder to keep costs low on materials while still providing a high quality product.

1. Barna contends that the trial court erred by finding that the website post and the e-mail constituted statements of opinion and denying its libel claims as a matter of law.

A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule. As to proof of malice, proof that the writing is false, and that it maligns the private character or mercantile standing of another, is itself evidence of legal malice.

(a) The e-mail.

The trial court correctly determined that Wischmann’s e-mail was not libelous as a matter of law. Wischmann recites a number of factual statements regarding the structural engineering, window and door sizing, and material costs, which could be disputed by Barna. Nevertheless, Barna failed to present any evidence to the trial court that those statements were not true. On the other hand, Wischmann presented the affidavit of Mark Chitty in support of the factual statements he made in the e-mail. Moreover, the remainder of Wischmann’s statements that could be seen as disparaging constitute Wischmann’s opinions regarding the service he received from Barna — Barna’s work ordering windows and doors was “sloppy,” he was “stunned” with the quality of work and support, and he was “disappoint[ed]” in the service. These statements are based on the facts within the e-mail, which Barna has not disputed with contrary facts, and which are opinions largely derived from the costs differences cited within the e-mail — Barna would have taken care of everything, but for a higher cost than Wischmann would pay without using them.

(b) The website post.

The trial court also properly granted summary judgment to Wischmann on Barna’s claims that the website post constituted libel. Wischmann’s statements that Barna was “grossly overcharging” and “did a poor job on the engineering overview and window specifications” are his opinions of those matters based on his experience working with Barna, which are subjective and not capable of proof or disproof. Unlike the e-mail, the website post does not contain any factual statements and would not be taken by any reader as anything other than the wholly subjective opinion of one customer.

2. Finally, neither the e-mail nor website post constitute libel per se, even though they constitute statements related to Barna’s trade. Although statements disparaging a business’ reputation within its trade may sometimes constitute libel per se,

[l]anguage imputing to a business or professional man ignorance or mistake on a single occasion and not accusing him of general ignorance or lack of skill is not actionable per se. This is because a charge that plaintiff in a single instance was guilty of a mistake, impropriety or other unprofessional conduct does not imply that he is generally unfit.

Here, Wischmann’s statements indicate that he thought Barna’s performance with respect to his project was “sloppy” and would have resulted in “added expense.” Nothing in either of the statements impugned Barna’s general business character or capability, and indeed, Wischmann refers to Barna’s highly regarded reputation within the community generally in both statements.

Decided July 13, 2011

Clifford S. Lancey, for appellant.

Groth & Makarenko, Paul L. Groth, Laura D. Johnson, for appellee.

Accordingly, we affirm the trial court’s grant of summary judgment to Wischmann as to Barna’s libel claims.

Judgment affirmed.

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

       Barna’s breach of contract claim remains pending in the trial court and is not subject to the instant appeal.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Punctuation and footnote omitted.) Lucas v. Crenshaw, 289 Ga. App. 510, 512 (1) (659 SE2d 612) (2008).

       See id. at 512 (1); Davis v. Sherwin-Williams Co., 242 Ga. App. 907, 908 (531 SE2d 764) (2000).

       See Lucas, 289 Ga. App. at 514 (1); Davis, 242 Ga. App. at 908; Jaillett v. Ga. Television Co., 238 Ga. App. 885, 890-891 (520 SE2d 721) (1999) (customer’s statement that she had been “ripped off” was not defamatory because the facts that premised her opinion were revealed in the broadcast and were not defamatory).

       See Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745, 746-747 (3) (337 SE2d 770) (1985) (affirming the grant of a motion on the pleadings for libel based on the defendant publication’s rating of an attorney).

       See OCGA § 51-5-4 (a) (3); Lucas, 289 Ga. App. at 515 (2).

       (Punctuation omitted.) Lucas, 289 Ga. App. at 515-516 (2). See also Crown Andersen, Inc. v. Ga. Gulf Corp., 251 Ga. App. 551, 554 (2) (554 SE2d 518) (2001). Compare with American Southern Ins. Group v. Goldstein, 291 Ga. App. 1, 13-14 (7) (b) (660 SE2d 810) (2008) (explaining the difference between a statement that imputes a tradesman’s general reputation and therefore is not barred by the single-instance rule and a statement that alleges merely an act of negligence, mistake, or ignorance on a single occasion).


author: Phipps, Presiding Judge.

text:
    A11A0704.
    THE EICHHOLZ LAW FIRM, P.C. et al. v. TATE LAW GROUP, LLC et al.
    (714 SE2d 413)
   Phipps, Presiding Judge.

The Eichholz Law Firm, PC. (the Eichholz firm) and Weinstock & Scavo, EC. (the Weinstock firm) brought an action against Tate Law Group, LLC (the Tate firm) and Mark Tate for, inter alia, breach of two joint venture agreements between the Eichholz firm and the Tate firm, which agreements included provisions for splitting attorney fees. The Eichholz firm had assigned its interest in attorney fees under one of the joint venture agreements to the Weinstock firm. The trial court granted partial summary judgment to the Tate firm and Mark Tate, and denied partial summary judgment to the Eichholz firm and the Weinstock firm, on the issue of whether the Eichholz firm and the Weinstock firm could seek recovery pursuant to the fee-splitting provisions of the joint venture agreements. For reasons that follow, we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. We review a ruling on a motion for summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. So viewed, the evidence showed the following.

In March 2008, Benjamin Eichholz, a principal of the Eichholz firm, and Mark Tate, a principal of the Tate firm, agreed to jointly represent clients in a wrongful death claim on behalf of an estate (the Estate Agreement). The Eichholz firm previously had agreed to represent the Estate clients in the case for a contingent attorney fee. The Estate Agreement provided that the Eichholz firm would receive a specified portion of the attorney fee obtained in connection with that claim, depending upon, inter alia, the point during the litigation process at which the case was resolved.

In February 2009, Benjamin Eichholz and Mark Tate agreed to jointly represent clients in product liability actions involving Oral Sodium Phosphate (the OSP Agreement). The OSP Agreement provided that the firms would “share all attorney’s fees earned from these cases ... on an equal, 50-50 basis.” The record does not contain any evidence of the terms of the agreements, if any, that either the Tate firm or the Eichholz firm had with any OSP clients. The arguments set forth by the parties to this appeal in their briefs, however, indicate that the Eichholz firm and the Tate firm expected the OSP cases to generate contingent attorney fees.

In August 2009, Benjamin Eichholz was indicted in federal court for various offenses. That month, the clients in the Estate case terminated the Eichholz firm’s representation of them. Meanwhile, the litigation addressed in the Estate Agreement was ongoing. In the fall of 2009, the Tate firm was working on approximately 300 OSP cases, and there had been no offers to settle any of those cases.

On December 8, 2009, the Eichholz firm entered into an agreement (the Assignment), by which it purportedly assigned to the Weinstock firm its interests in, pertinently, “any and all contractual rights [the Eichholz firm] currently possesse[d] to receive any sum of money, from any party, under . . . [t]he [OSP] Agreement.” Subsequently, the Eichholz firm and the Weinstock firm amended the Assignment to provide that only a portion of the Eichholz firm’s interest in attorney fees generated by OSP cases would be assigned thereunder.

In January 2010, Mark Tate wrote to the OSP clients seeking their signatures on a document that provided: “My signature affixed hereto this date certifies that I do not wish for the Benjamin Sheftal Eichholz, individual or law firm, its heirs or assigns, to have anything to do with my case whatsoever, including the payment of any fees which may be sought with regard to my case.” In an affidavit, Mark Tate later stated:

I explained [implications of Benjamin Eichholz’s indictment] to each and every client and gave them the choice of continuing to be represented by Mr. Eichholz and his firm alone, or they could be represented by Tate Law Group. . . . Without exception, each client chose to be represented by Tate Law Group and not by Mr. Eichholz or his firm[.]

The record contains no evidence that any fees had been earned on OSP cases before the OSP clients terminated the Eichholz firm’s representation.

In ruling on the parties’ cross-motions for summary judgment and partial summary judgment, the trial court determined that the fee-splitting provisions of the OSP Agreement and Estate Agreement were unenforceable because the clients had terminated the Eichholz firm’s representation before the occurrence of contingencies that would have given rise to the payment of attorney fees, and thus the Eichholz firm’s recovery on the claims would be limited instead to quantum meruit. The court further determined that the Assignment of the Eichholz firm’s interest in the OSP attorney fees was void.

1. The Eichholz firm and the Weinstock firm contend that the trial court erred in holding that the fee-splitting provisions of the OSP Agreement and Estate Agreement were unenforceable and that any recovery of the Eichholz firm for services performed under those agreements was limited to quantum meruit. As explained below, however, we find no error in the trial court’s determination that the contract could not be enforced so as to permit a law firm to receive a portion of a contingent fee where its clients had terminated the firm’s representation of them before the fee was earned.

In Georgia, parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. But OCGA § 13-8-2 (a) provides that “[a] contract that is against the policy of the law cannot be enforced.”

“When the contingency justifying a fee has not yet occurred, the discharged attorney has no basis for collecting a fee connected to that contingency.” Applying this principle, we held in Kirschner & Venker, P.C. v. Taylor & Martino, P.C. that a discharged attorney could not seek a portion of a contingent fee from another attorney with whom the discharged attorney previously had worked on the case, on the ground that “[t]o allow a discharged attorney to collect an equal share of a contingent] fee as if the attorney were still involved in a case would render the discharge meaningless.” To allow a discharged attorney to collect a share of a contingent fee after being discharged also would contravene Georgia Rules of Professional Conduct, Bar Rule 4-102 (d), Rule 1.5 (e) (2) which provides that a “division of a fee between lawyers who are not in the same firm may be made only if: ... the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved.” The rule’s clear intent is to prohibit the sharing of a legal fee with a lawyer against the will of the client, and a violation of the rule can be a ground for disciplinary action.

The Eichholz firm and the Weinstock firm argue that Kirschner & Venker is inapposite because it concerned lawyers who had not entered into an express fee-splitting agreement. The existence of such an agreement between the lawyers does not affect the underlying policy against allowing a discharged lawyer to collect contingent attorney fees. Although the Kirschner & Venker decision acknowledges that a discharged lawyer’s ability to seek recovery in quantum meruit would be foreclosed by the existence of an express agreement providing for fees in the event of termination, this principle is inapplicable here, where the agreements between the Eichholz firm and the Tate firm contain no provisions addressing fee-splitting in the event of one party’s termination, and the Eich-holz firm has not sought in this action to seek fees through such a term in any of its client contracts (assuming such a term existed).

The Eichholz firm and the Weinstock firm also contend that the requirements of Rule 1.5 (e) (2) of the Georgia Rules of Professional Conduct have no bearing upon the enforceability of the fee-splitting terms in the OSP Agreement and Estate Agreement. But Davis v. Findley, cited by the Eichholz firm and the Weinstock firm for their contention, is inapposite; that decision concerns limits on the use of the Georgia Rules of Professional Conduct to demonstrate a lawyer’s affirmative duty of care in a legal malpractice action and does not address whether the Georgia Rules of Professional Conduct establish public policy that could limit an attorney’s ability to agree to split fees. And we disagree that our decision in Camp v. Peetluk, also cited by the Eichholz firm and the Weinstock firm, requires the enforcement of a fee-splitting provision so as to permit a discharged lawyer to collect a portion of a contingent fee. Although we held in Camp that summary judgment was not appropriate on a claim for breach of a joint venture agreement between two lawyers because a jury question existed concerning a breach by one of the lawyers of a duty of good faith within the agreement, we did not specifically analyze the enforceability of a fee-splitting term within that agreement, nor did we specifically hold that a discharged lawyer in that case could recover a portion of a contingent fee under that agreement.

The record reveals no dispute that the Estate clients and the OSP clients terminated the Eichholz firm’s representation of them before the occurrence of the contingencies upon which attorney fees would have been earned in their cases. Although, as to most of the clients, Mark Tate’s affidavit and deposition testimony was the sole evidence regarding the fact and timing of the clients’ termination of the Eichholz firm, that testimony was sufficient to pierce the pleadings, and the Eichholz firm and the Weinstock firm did not point to any specific evidence giving rise to a triable issue on these points.

The Eichholz firm and the Weinstock firm seek to enforce the fee-splitting agreements in a manner that would contravene public policy, by allowing the Eichholz firm to receive a portion of legal fees even though its clients terminated the Eichholz firm’s representation before any contingency giving rise to the fees occurred. As a matter of law, the fee-splitting provisions cannot be enforced in this manner; however, the Eichholz firm may seek to recover in quantum meruit for services it provided to the Tate firm pursuant to their joint venture. The trial court did not err in granting partial summary judgment to Mark Tate and the Tate firm and denying partial summary judgment to the Eichholz firm and the Weinstock firm on this issue.

Decided July 13, 2011

Weinstock & Scavo, Michael Weinstock, James R. Fletcher II, Langley & Lee, William W. Calhoun, Joseph P. Durham, Jr., Kimberly R. Burroughs, Eric L. Barnum, for appellants.

Savage & Turner, Robert B. Turner, for appellees.

2. The Eichholz firm and the Weinstock firm contend that the trial court erred in finding unenforceable the Assignment to the Weinstock firm of the Eichholz firm’s interest in attorney fees. The trial court determined that the Georgia Rules of Professional Conduct prohibited the Weinstock firm from receiving, through assignment, the Eichholz firm’s claimed 50 percent interest in attorney fees to be earned on the OSP cases. Because, as explained above, the Eichholz firm had no enforceable interest in attorney fees under the OSP Agreement, the question of the Assignment’s enforceability is moot.

Judgment affirmed.

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

       The trial court denied summary judgment as to all other claims.

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

       See Latson v. Boaz, 278 Ga. 113 (598 SE2d 485) (2004).

       We do not hold or imply in our opinion that fee-splitting agreements between lawyers generally are unenforceable or that the decision of the Eichholz firm and the Tate firm to enter into fee-splitting agreements was improper.

        Brandon v. Newman, 243 Ga. App. 183, 186 (3) (b) (532 SE2d 743) (2000).

       OCGA § 13-8-2 (a).

        Kirschner & Venker, P.C. v. Taylor & Martino, P.C., 277 Ga. App. 512, 513 (627 SE2d 112) (2006) (citation omitted).

       Id.

       Id. at 514.

       (Emphasis supplied.) See generally Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 65-66 (2) (537 SE2d 670) (2000) (where State Bar disciplinary standards in force at the time required contingent fee agreements to be in writing, an oral contingent fee contract would violate public policy and thus would be unenforceable); Brandon, supra at 187 (3) (b) (holding that a lawyer’s agreement to share fees with a nonlawyer was void as against public policy, because it violated State Bar disciplinary standards that prohibited such an agreement).

       See Georgia Rules of Professional Conduct, Bar Rule 4-101 (“The State Bar of Georgia is hereby authorized to maintain and enforce . . . Georgia Rules of Professional Conduct to be observed by the members of the State Bar of Georgia and those authorized to practice law in the State of Georgia and to institute disciplinary action in the event of the violation thereof.”); see also Georgia Rules of Professional Conduct, Bar Rule 4-102 (d), Rule 1.5 (providing for the penalty of public reprimand for a violation thereof).

       See Kirschner & Venker, P.C., supra at 513.

       The record shows that the Eichholz firm had a contract with the Estate clients that included an express term setting forth compensation the Eichholz firm would receive from the clients for its work in the event the clients terminated its representation of them. The record is silent on whether the Eichholz firm had contracts with the OSP clients containing similar terms.

       262 Ga. 612 (422 SE2d 859) (1992).

       Id. at 612-613.

       262 Ga. App. 345 (585 SE2d 704) (2003).

       Id. at 349-352 (2).

       See generally Cowart, supra (a defendant moving for summary judgment satisfies his burden of showing that there is no genuine issue of material fact by, inter alia, presenting evidence negating an essential element of the plaintiffs claims); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       See Georgia Rules of Professional Conduct, Bar Rule 4-102 (d), Rule 1.5 (e) (2); Kirschner & Venker, P.C., supra at 514; Brandon, supra. See generally AFLAC v. Williams, 264 Ga. 351, 353 (1) (444 SE2d 314) (1994) (discussing principles of public policy implicated in client’s right to terminate lawyer’s representation).

       See Kirschner & Venker, P.C., supra; Brandon, supra; Nelson & Hill, P. A., supra.

       See Kirschner & Venker, PC., supra at 513-514 (lawyer who was fired by client prior to occurrence of contingency, and thus was unable to pursue contingent fee, could recover in quantum meruit from former co-counsel who continued to represent client). Cf. Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (2) (496 SE2d 693) (1998) (lawyer who was prevented from recovering attorney fee under contingent fee agreement where client prevented contingency from occurring could recover in quantum meruit from client).

       See Division 1, supra.


text:
    A11A0721.
    HOLCOMB v. THE STATE.
    (714 SE2d 407)
   Doyle, Judge.

This appeal arises from charges filed against John Holcomb in connection with the shooting death of Bruce Knowles. The grand jury returned a four-count indictment against Holcomb, which charged him (1) with malice murder because he “did with malice aforethought cause the death of Bruce Knowles ... by shooting him with a handgun”; (2) with felony murder because he “did while in the commission of a felony, to wit: aggravated assault, cause the death of Bruce Knowles ... by shooting him with a handgun”; (3) with aggravated assault because he “did then and there unlawfully make an assault upon the person of Bruce Knowles with a firearm, a deadly weapon, by shooting [him] with said firearm”; and (4) with possession of “a Browning .25 caliber handgun during the commission of the crimes of Aggravated Assault and Murder [of] Bruce Knowles.”

After a jury trial, Holcomb was convicted of involuntary manslaughter as a lesser-included offense, aggravated assault, and possession of a firearm during the commission of a crime. The jury acquitted him of malice murder and felony murder. On appeal, Holcomb contends that the trial court erred by denying his motion for new trial on the ground that the jury returned mutually exclusive verdicts of aggravated assault and involuntary manslaughter without specifying the methodology upon which the verdicts were based. In its brief on appeal, the State agrees with Holcomb and recommends reversing the verdict. We agree and reverse for the reasons that follow.

1. The evidence presented at trial shows that Holcomb, Knowles, and a third friend engaged in a day of drinking together. In the early evening, Holcomb decided to leave the establishment where the three were drinking and walked out to his motorcycle. Knowles and his friend attempted to prevent Holcomb from driving away due to his level of intoxication, but Holcomb became angry and retrieved his handgun from his motorcycle. Holcomb fired two shots in the air, and a third shot hit Knowles in the neck. Knowles died two days later from the injury. Testimony at trial differed as to whether Holcomb and the other men struggled for the gun, whether Holcomb pointed the gun at Knowles before it discharged, or whether the gun discharged as Holcomb fell after being pushed. This evidence is sufficient to support the jury’s verdict whether it was based on the finding Knowles died as a result of an intentional act by Holcomb or as a result of Holcomb’s reckless conduct.

2. Holcomb argues that the trial court should have granted his motion for new trial because the jury returned mutually exclusive verdicts of involuntary manslaughter and aggravated assault, resulting in a reasonable probability that the jury found that Holcomb acted with both criminal intent (with the intent to harm) and criminal negligence (without the intent to harm).

“Verdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.” Nevertheless, in the event that a reasonable probability exists that a jury returned a mutually exclusive verdict — the jury found that the defendant acted with both criminal intent and criminal negligence at the same instant regarding the same victim involving the same act — then we must reverse.

In this case, Holcomb was found guilty of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)) and involuntary manslaughter (OCGA § 16-5-3). With regard to the count of aggravated assault, the trial court charged the jury that in order to find Holcomb had assaulted Knowles, they could do so in one of two ways pursuant to OCGA § 16-5-20, the underlying crime of simple assault. The trial court charged section (a) (1) of OCGA § 16-5-20, which states that a person commits assault when the person “[attempts to commit a violent injury to the person of another.” This subsection requires a showing of criminal intent on the part of the defendant. The trial court also charged the jury that they could find Holcomb had committed a simple assault pursuant to OCGA § 16-5-20 (a) (2), which states that a person is guilty of a simple assault if he “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury,” requiring evidence only of criminal negligence on the part of the defendant.

With regard to involuntary manslaughter as a lesser-included offense to malice murder and felony murder, the trial court instructed the jury in two ways: first, that the jury could determine that Holcomb had committed involuntary manslaughter by intentionally pointing a firearm at Knowles; and second, that the jury could determine that Holcomb had committed involuntary manslaughter by consciously disregarding a substantial and justifiable risk that his act or omission would cause the death of another.

Because “we cannot conclusively state that the verdict rested exclusively” on either criminal negligence or criminal intent “so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict by finding [Holcomb] acted with both criminal intent and criminal negligence at the same time as to the same victim,” it is necessary to reverse Holcomb’s convictions and remand for a new trial.

Decided July 13, 2011.

Bruce S. Harvey, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

3. Based on our conclusion in Division 2, we decline to address Holcomb’s additional enumerations.

Judgment reversed.

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

       OCGA § 16-5-3 (a).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-5-1 (a), (c).

       See Noble v. State, 282 Ga. App. 311, 312-313 (638 SE2d 444) (2006) (involuntary manslaughter based on reckless conduct); Tanner v. State, 259 Ga. App. 94, 95 (1) (a) (576 SE2d 71) (2003) (aggravated assault with a deadly weapon); Smith v. State, 234 Ga. App. 314, 315 (1) (506 SE2d 659) (1998) (involuntary manslaughter based on pointing a pistol).

       OCGA § 17-9-2.

       See Flores v. State, 277 Ga. 780, 783 (3) (596 SE2d 114) (2004). See also Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003) (“Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other.”) (punctuation omitted).

       See Jackson, 276 Ga. at 411-412 (2).

       (Emphasis supplied.) Id. at 412-413, n. 5. See also Dryden v. State, 285 Ga. 281, 284 (676 SE2d 175) (2009); Dunagan v. State, 269 Ga. 590, 591-592 (2) (502 SE2d 726) (1998), distinguished by Parker v. State, 270 Ga. 256, 259 (4) (507 SE2d 744) (1998).


text:
    A11A0748.
    OSBORN v. THE STATE.
    (714 SE2d 406)
   Phipps, Presiding Judge.

A Towns County jury found Edward Osborn guilty of two counts of aggravated assault, two counts of making false statements, and one count each of possession of a firearm during the commission of a felony, violation of oath by a public officer, and tampering with evidence. He appeals from the convictions and the denial of his motion for new trial, contending that the trial court erred by conducting a portion of voir dire in a church and by finding that he did not receive ineffective assistance of trial counsel. For the reasons that follow, we reverse and remand the case for a new trial.

1. Osborn contends that the trial court erred by holding a critical stage of his trial (voir dire) in a church, over his objection and without the permission of the proper governing authority, in violation of OCGA § 15-6-18. The state contends that Osborn waived this argument because he did not make this specific objection at trial. We hold that the issue was preserved for review on appeal and provides grounds for reversal.

As to those counties that fall within its population limits, OCGA § 15-6-18 (c) (1) pertinently provides:

... [I]f for any cause it shall or may be impractical to hold any session or sitting of any superior or state court at the courthouse or other place provided by law therefor ... it shall be lawful to hold court and any session or sitting thereof at such place or places as the governing authority of the county in and for which the court is to be held may from time to time, by appropriate resolution, provide for such purpose, provided that no session or sitting of any superior court or state court may be held under this subsection at any place that is not open to and accessible by the public; provided, further, that no criminal jury trial shall be conducted in such alternate or additional facility without the consent of the accused,

The record shows that jury selection began in the courtroom, then, apparently due to a bomb threat, was moved to a church. Osborn objected to the relocation, arguing that it violated the constitutional requirement of separation of church and state. The trial court overruled the objection, and part of voir dire was conducted in the church.

After his conviction, Osborn asserted in his amended motion for new trial that, inter alia, the court violated OCGA § 15-6-18 by moving the proceedings to the church over his objection and without proper authorization. At the hearing on the motion for new trial, the commissioner of Towns County, who was the commissioner when the case was tried in June 2008 and at the time of the hearing on the motion, testified that there were no other commissioners in Towns County, that he was the sole commissioner, that he had not authorized the change in location for the court session, and that no one else had been designated to exercise his authority. Because the county governing authority did not provide, by appropriate resolution, for court to be held at the church rather than at the courthouse, the court session did not comply with OCGA § 15-6-18 (c) (1).

Decided July 13, 2011.

Brian Steel, for appellant.

N. Stanley Gunter, District Attorney, William J. Langley, Cathy A. Cox-Brake field, Assistant District Attorneys, for appellee.

Moreover, in Purvis v. State, the Supreme Court of Georgia held that

[bjecause OCGA § 15-6-18 (c) (1) expressly states that “no criminal jury trial shall be conducted in such alternate or additional facility without the consent of the accused,” the plain language of subsection (c) (1) requires that the accused’s consent be obtained in order to conduct a criminal jury trial in an alternate or additional facility. We therefore reject the [s]tate’s argument that the mere absence of any objection by the accused to proceedings conducted in such alternate or additional facilities is sufficient to show compliance with OCGA § 15-6-18 (c) (1). . . . [I]n order for our appellate courts to verify that the [s]tate has complied with this statutory mandate, an accused’s consent to having his or her criminal jury trial conducted in an alternate or additional facility must be established by the record.

The record shows that Osborn did not consent to the court conducting part of the voir dire of his criminal trial in the church, i.e., an alternate or additional facility under OCGA § 15-6-18 (c) (1). Because the state failed to comply with the mandates of the statute, we reverse Osborn’s convictions and remand the case for a new trial.

2. Because this case is remanded for a new trial, we need not address Osborn’s contention that trial counsel was ineffective for failing to object to the closure of a portion of voir dire and to a particular jury instruction.

Judgment reversed and case remanded.

Andrews and McFadden, JJ., concur.

       See Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) (voir dire is a critical stage of a defendant’s criminal trial).

       OCGA § 15-6-18 (c) (1) applies to counties having a population of not more than 50,000 according to the United States decennial census of 1990 or any future such census. The trial was conducted in June 2008. Towns County had a population of approximately 9,319 in 2000. See 2000 Census, OCGA Vol. 42A, p. 663.

       (Emphasis supplied.)

       See OCGA § 1-3-3 (7) (“ ‘County governing authority’ means the board of county commissioners, the sole county commissioner, or the governing authority of a consolidated government.”).

       288 Ga. 865 (708 SE2d 283) (2011).

       Id. at 870 (2), n. 9 (citation omitted).

       Id. at 870 (2), n. 10.