author: MERCIER, Judge.

text:
    A15A1778.
    HILL v. JACKSON et al.
    (783 SE2d 719)
   MERCIER, Judge.

This appeal is from the grant of summary judgment to several defendants in a wrongful death suit filed on behalf of plaintiff/appellant Gabrielle Hill (“Appellant”), the minor child of Richard Willie Hill, Jr. (“Hill”), against Fulton County Sheriff Theodore Jackson, Nitosha Riley, Latessa Robertson, Milton Weaver, Charles Martin, Andrea Thomas (collectively, the “Fulton County defendants”), Charlene Dumas, Correctional Medical Associates, Inc. (“CMA”), and Stephanie Bennett. The suit arises from Hill’s suicide, which occurred while he was in custody in the Fulton County jail.

Appellant sought damages from the defendants claiming that “they negligently failed to take steps to prevent Hill’s suicide despite their knowledge of the active risk of suicide.” The complaint averred two causes of action for wrongful death: (1) Hill died as a direct and proximate result of the negligent failure of the Fulton County defendants (and two parties not involved in this appeal) to comply with an order from the Superior Court of Fulton County placing Hill on suicide watch, to perform their duties pursuant to the laws of the State of Georgia, and to comply with the policies and procedures of the sheriff’s departments of Fulton County and Hall County; and (2) Hill died as a direct and proximate result of the negligent failure of the defendants to take any steps to secure medical evaluation and treatment for Hill, and his death was a result of the breach by Jackson of his ministerial duty to provide medical treatment and care, and a direct and proximate result of the negligent conduct in which Dumas engaged, for which she and her employer CMA are responsible.

Riley, Robertson, Weaver, Martin, and Thomas, who were employees of the Fulton County sheriff’s office on the date of Hill’s suicide, were sued only in their individual capacities. Jackson was the sheriff of Fulton County at the time of Hill’s death. The complaint, as amended, does not state in what capacity Appellant sued Jackson, but because Appellant’s pleadings in the trial court and on appeal make argument only about Jackson’s individual liability and about qualified immunity, and do not argue that Jackson was being sued in any official capacity, we surmise that he was being sued only in his individual capacity. See Jobling v. Shelton, 334 Ga. App. 483, 486 (2) (779 SE2d 705) (2015) (“[I]n determining the capacity in which a defendant is sued, courts should look to the complaint and the course of the proceedings.”). CMA contracted with the Fulton County sheriff’s office to provide medical services to inmates, and Dumas, a medical assistant, was an employee of CMA.

All of the defendants moved for summary judgment. In three separate orders, the trial court granted summary judgment to all of the defendants involved in this appeal. Appellant appeals the grant of summary judgment to the Fulton County defendants, CMA and Dumas, arguing that the trial court erred by: (1) holding that policies directing Fulton County employees to take specific actions under specific circumstances did not establish ministerial duties; (2) resolving disputes of material fact in favor of the movants; (3) failing to adjudicate whether Jackson’s failure to provide medical treatment for inmates such as Hill constituted a breach of a statutory ministerial duty; (4) holding that Riley and Robertson are entitled to qualified immunity; (5) holding that CMA and Dumas had no duty of care to Hill while he was in the custody of Hall County or when he was returned to Fulton County; and (6) holding that there was no evidence to support a finding of proximate cause as to CMA and Dumas. For the reasons that follow, we affirm the grant of summary judgment to Jackson, Martin, Thomas, Robertson, CMA and Dumas; we reverse the grant of summary judgment to Weaver and Riley.

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. 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.

McKissick v. Giroux, 272 Ga. App. 499 (612 SE2d 827) (2005) (citations and footnotes omitted). See OCGA § 9-11-56 (c). “[A] grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Anderson v. Jones, 323 Ga. App. 311, 312, n. 2 (745 SE2d 787) (2013) (citation omitted).

[A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case, and... the nonmoving party cannot then rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cox Enterprises v. Nix, 274 Ga. 801, 804 (2) (560 SE2d 650) (2002) (citation omitted). “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” Heath v. Rush, 259 Ga. App. 887, 888 (578 SE2d 564) (2003) (citation and punctuation omitted).

Viewed in the light most favorable to Appellant (as nonmovant), the record shows the following. Hill was in a romantic relationship with K. T., and after K. T. ended the relationship, Hill went to her place of employment with a gun. Hill later went to K. T.’s home and fired shots into her car. Hill was charged with aggravated assault and taken to the Fulton County jail on May 21, 2010.

Fulton County and the sheriff’s office had a written agreement with Hall County, pursuant to which the Hall County jail housed Fulton County inmates to avoid overcrowding in Fulton County’s jail. Hill was “outsourced” to Hall County in July 2010. On September 7, 2010, while Hill was still housed in Hall County, a Fulton County superior court judge issued an order (the “suicide watch order”) directing that Hill be placed on suicide watch and in protective custody.

There is significant disagreement among the parties as to what happened once the suicide watch order was issued. Because we view the facts in the light most favorable to Appellant (see McKissick, supra), in instances where there is conflicting evidence of the facts, we consider the evidence that is most favorable to Appellant’s position. The suicide watch order was faxed to the records department at the Fulton County jail on September 7, 2010. Robertson and Riley were civilian employees at the jail. Robertson worked as a “distributor,” and was responsible for faxing orders to various divisions in the sheriff’s office. Robertson faxed a copy of the suicide watch order to Lieutenant Thomas in the classification department, to the outsource division, to the watch commander’s office, and to the medical section, but not to the transfer section.

Riley worked as a disposition writer and a distributor in the records department at the Fulton County jail. On the day that the suicide watch order was received, Riley was working as a “writer.” In this job, she received folders for individual inmates from the distributor, which contained court orders, and she was responsible for taking the information contained in new orders and putting it on inmate information cards, then comparing court documents with the information written on the inmate information cards to ensure the accuracy of the information prior to the jail folders being passed to a person who would enter the information in the computer system. On the date that the suicide watch order was faxed to the records department, Riley wrote information about Hill’s bond on the card, but did not write anything on the card about the suicide watch order. The suicide watch order was faxed to the Hall County sheriff’s office by Hill’s attorney. The Hall County jail maintained Hill on suicide watch.

Martin, a deputy with the Fulton County sheriff’s office, was in charge of “outsourcing” and was therefore responsible for communicating with other sheriff’s offices and agencies about inmates who were being housed in other jails. His responsibilities included initiating a mental and physical health screening process to determine whether inmates were eligible to be housed in other jails. Inmates were screened by the medical section to determine if they could be outsourced to other facilities, and Martin would consult with Dumas of CMA about these decisions.

When Dumas consulted with Martin about an e-mail she received from a nurse at the Hall County jail regarding Hill being suicidal, Martin told Dumas that Hill should be observed in Hall County until Martin heard something different from the courts. Martin stated that he could not have arranged for Hill to be returned to the Fulton County jail until he received approval from the medical staff at the Fulton County jail because Hill was on suicide watch in Hall County.

A copy of the suicide watch order was sent to the classifications division on September 7, 2010. On September 14, 2010, Sergeant Baines of the Hall County sheriff’s office sent an e-mail to Martin, referencing the suicide watch order and stating that Hill needed to be sent back to the Fulton County jail because he refused to take his medication, and the doctor in Hall County said that he likely required commitment to a hospital or treatment facility. It further provided, “there is no rush on this so it will give time to make arrangements ... [the lieutenant] wanted me to give you a heads up so you can put it in motion.” Martin responded by e-mail, stating that he would “get things in motion” and “keep [them] posted.”

Between September 14, 2010 and September 16, 2010, Martin spoke to Thomas, a lieutenant in the classifications division of the Fulton County jail, regarding Hill, and Thomas contacted CMA. Thomas did not take any steps to have Hill returned to Fulton County for treatment or evaluation.

On September 16,2010, Hill’s name appeared on the “pull sheet,” which is a list of inmates who would be going to court in Fulton County that day. There was no indication on the list that Hill was subject to suicide watch. At 7:49 a.m. that day, Baines (Hall County) e-mailed Martin, telling him that Hill was on the list to go to court in Fulton County that day, and asking if Hill would be coming back to Hall County or staying in Fulton County after the court appearance. Martin responded, “To my knowledge nothing has changed so he should be returning to you tonight.”

On the morning of September 16, 2010, Bennett and other Hall County deputies transported Hill from the Hall County jail to the Fulton County jail. Baines told Bennett to give the suicide watch order to a sergeant at the Fulton County jail. Weaver was awaiting the Hall County deputies’ arrival at the Fulton County jail. Weaver did not know that Hill was on suicide watch. Upon arriving at the Fulton County jail, Bennett spoke to Weaver and showed him the suicide watch order, and told him that Hill needed to be kept separately because of the order. Weaver asserts that Bennett told him only that Hill was supposed to be kept separately from other inmates, not that he was on suicide watch. Weaver placed Hill in an attorney’s booth in an effort to keep him separate, and removed his handcuffs and shackles. Weaver did not take any further steps to protect Hill from self-harm. He left Hill in the booth and went to a different part of the jail to attend to other inmates.

Hightower, a Fulton County deputy who was assisting Weaver, looked into the window of the attorney booth and saw that Hill was not wearing pants. When he attempted to open the door he could not, because Hill’s body was pressed against the door. Upon entering the booth, jail staff discovered that Hill had tied his pants around his neck and hanged himself.

1. Weaver, Martin and Thomas. The trial court found that Weaver, Martin and Thomas were entitled to official (or qualified) immunity and granted summary judgment to them on that basis.

(a) Appellant’s first contention with regard to Weaver, Martin and Thomas is that the trial court erred by holding that the Fulton County sheriff’s office’s policies did not establish ministerial duties for them. We find that the trial court erred as to Weaver, but did not err as to Martin and Thomas.

The doctrine of . . . qualified immunity [ ] offers public officers and employees limited protection from suit in their personal capacity. [It] protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.

Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001) (citation and punctuation omitted). See also Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d).

[A] ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Jobling, supra at 487 (2) (citation omitted). A ministerial duty maybe established in a variety of ways, including by written or unwritten policy, a supervisor’s directive, or by statute. Id. When a policy requires a public official to exercise discretion in its implementation by determining if the necessary prerequisite condition to the ministerial act exists, the policy does not require the performance of a ministerial duty, and qualified immunity shields the official from individual liability. Grammens v. Dollar, 287 Ga. 618, 620-621 (697 SE2d 775) (2010).

When a party moves for summary judgment on the basis of qualified immunity, that party bears the burden of establishing that he was entitled to the protection of said immunity. Jobling, supra at 488 (2) (a). Once this burden is carried and this prima facie showing is made, the burden to produce evidence shifts to the nonmoving party to come forward with rebuttable evidence sufficient to show that a genuine issue of fact exists with regard to whether the defendant breached a ministerial duty. Jobling, supra at 488 (2) (a).

(i) Weaver. Appellant argues that the suicide watch order established ministerial duties for Weaver. We agree. Jackson testified that all personnel of the Fulton County sheriff’s office were required to follow applicable policies and procedures if a court order directed that an inmate be placed on suicide watch. According to Fulton County Sheriff’s Department Written Directive 1.4, all deputies and detention officers are required to “execute . . . orders of the court. . . .” Appellant contends that Weaver failed to comply with Jail Bureau Policies and Procedures, Number 1500-18, which applies to all jail bureau personnel, and provides for special monitoring of suicidal inmates. That policy states that “Special Risk Inmates are those ... who pose an immediate threat or risk of harm to themselves or others and may include suicidal . . . persons whose behavior creates an immediate concern for the personal safety of the inmate/staff.” It provides that “[s]uch persons shall be placed under close supervision by direction of the medical staff or Chief Jailer only.” Further, “observation of those inmates shall include documented physical sight checks by a Deputy/Detention Officer or medical staff member at irregular intervals which do not exceed fifteen (15) minutes,” and

inmates considered to be suicidal will be under direct visual observation by a Deputy/Detention Officer twenty-four (24) hours a day as directed by appropriate medical staff... the Deputy/Detention Officer shall be in a position to observe the inmate on a continual basis and have the cell door key in his/her possession at all times to ensure prompt access.

Appellant also points to Fulton County Jail Health Services Policy #J-G-05, which provides that “individuals placed on suicide precautions will be routinely housed in single cells on the Acute Psychiatric Unit,” and that certain procedures and restrictions “will routinely apply” (emphasis supplied), including, among other things, staff will conduct body searches and confiscate all materials that could be used for self-harm; inmates will wear only paper gowns; inmates may not have blankets or linens; and inmates will be subject to visual observation by clinical and correctional staff 24 hours per day with monitoring by correctional staff every 15 minutes, staggered, and hourly by nursing staff.

The suicide watch order in this case dictated that the Fulton County sheriff’s office place Hill on suicide watch. Policy #J-G-05 lays out simple, absolute and definite tasks that must be performed when individuals are placed on “suicide precautions.” There is no evidence that sheriff’s office employees have the latitude or authority to deviate from these procedures. The prescribed tasks are “simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty”; they do not call for deliberation or judgment. Jobling, supra at 487 (2). Therefore, the duties created thereby were ministerial, rather than discretionary, and the trial court’s grant of summary judgment to Weaver on the grounds that Weaver’s duties were discretionary and he was therefore shielded from negligence claims by qualified immunity was erroneous. See Cameron, supra. We therefore reverse the grant of summary judgment to Weaver.

There is conflicting evidence about whether Weaver was notified of the suicide watch order, triggering the duties created by policies applicable to him. Bennett testified that she showed him the suicide watch/protective custody language in the order when she delivered Hill to the Fulton County jail. Weaver testified that Bennett told him merely that Hill was to be separated from other inmates. This factual dispute does not change the analysis of Weaver’s entitlement to summary judgment, as it was granted by the trial court on the erroneous finding that the duties at issue were discretionary.

(ii) Martin. Appellant argues that two policies established ministerial duties applicable to Martin. First, Appellant points to the “Manual of Policies and Procedures for Health Services,” Policy #J-A-08. This policy states that “CMA’s medical staff and [the Fulton County jail’s] custody staff (including the classifications office staff) will communicate about inmates with special needs which may have an impact on housing, security, work assignments, disciplinary measures and transfers to and from institutions.”

Secondly, Appellant points to Fulton County sheriff’s office policy number 2100-01, which addresses the inmate classification system (the “classification policy”). The classification policy states that “[t]he Jail Bureau provides for separate management of the following categories of inmates ... Inmates with special problems . . . [including] suicide risks. . . .” It further states that “[a]ll staff shall take immediate action in situations that pose a danger to persons, property or the institution. These situations include... possible suicide or self-inflicted harm.” The classification policy goes on to explain that in these situations, “[s]taff actions will include immediate control and supervision, referral to the appropriate command deputy/detention officer and specialty resource, and input (written reporting) for reclassification.” It notes that reclassification assessment “will often require a referral and an examination or evaluation by medical or mental health staff.” Further, it directed that “all jail staff, other support employees and clerical employees having any knowledge or information that would affect inmate classification codes will record and report this information (and any changes) to the classification staff daily.”

Appellant contends that Martin failed to comply with these policies. After Dumas told him about the suicide watch order on September 8,2010, she argues, Martin did not take immediate action to record and report to the classification staff that Hill was suicidal, and, instead of conferring with medical staff, Martin told Dumas that Hill should stay in Hall County. Further, Appellant argues that when Martin was notified by Hall County Deputy Baines that Hill needed to be returned to Fulton County because of his condition, Martin failed to relay the information to anyone in the medical division or to the classification staff.

The language in these policies calls for personnel to exercise their discretion. For example, Policy #J-A-08 simply says that medical and custody staff will communicate about inmates with special needs that may impact various aspects of managing the jail. The policy presents no specific circumstance that triggers specific action, see Jobling, supra at 487 (2), and does not dictate the extent to which the staff should communicate regarding such special needs. The cited portions of the classification policy require action in “situations that pose a danger to persons, property or the institution,” and where a staff member has “information that would affect inmate classification codes.” These policies require that staff exercise discretion in determining whether the prerequisite condition exists to exercise a duty, and are therefore not ministerial. Grammens, supra. We affirm the grant of summary judgment to Martin.

(iii) Thomas. Appellant argues that the same policy provisions applicable to Martin created ministerial duties that applied to Thomas. We disagree for the reasons set forth in Division 1 (a) (ii) above. In addition to those duties, Appellant notes that the classification policy also provides that

[immediate medical or mental health attention may also be deemed necessary as a result of an inmate’s mention of suicide or of an incident where an inmate’s abnormal behavior, medical/mental complaint, or suspected or obvious injury appears emergent. Medical or mental health staffs are contacted by phone or radio for an immediate evaluation.

Appellant argues that Thomas failed to take action as required by this policy when she learned of the suicide watch order, and when she learned that Hall County Deputy Baines contacted Martin about returning Hill to the Fulton County jail as a result of his condition. The policies pointed out by Appellant do not create ministerial duties applicable to Thomas. The cited policy language says that “immediate medical or mental health attention may also be deemed necessary.” The language regarding immediate contact with medical staff is in the context of this possible need. On its face, this language creates a discretionary duty, requiring personnel to exercise judgment. See Jobling, supra at 487 (2). We therefore affirm the grant of summary judgment to Thomas.

(b) Appellant also contends that the trial court erred by resolving substantial and outcome determinative disputes of material fact in favor of Weaver and Martin. Specifically, she points to disputed facts regarding whether Bennett showed Weaver the suicide watch order, and regarding whether Martin required approval from CMAin order to have Hill brought back to the Fulton County jail. As we are reversing the grant of summary judgment to Weaver on the grounds set forth in Division 1 (a) (i), we need not examine this enumeration of error with regard to Weaver. Because we are affirming the grant of summary judgment to Martin in Division 1 (a) (ii) on the grounds of qualified immunity where the applicable policies cited by Appellant involved discretionary duties, the factual issue of whether Martin needed approval to have Hill brought back to the jail is not material.

2. Robertson and Riley. The grant of summary judgment to Robertson and Riley was also based on the court’s finding that they were entitled to qualified immunity.

(a) Appellant argues that the court erred in determining that Robertson’s and Riley’s duties were not ministerial. We agree with Appellant as to Riley, but disagree as to Robertson.

(i) Robertson. With regard to Robertson, Appellant points to an unwritten, “overarching policy for someone in her position.” She argues that when a distributor in the records division received a court order, he or she was to forward it to the other divisions of the jail. Specifically, she argues that the records division was responsible for distributing orders to the transfer division, and that Robertson did not have the discretion to decide whether the order should be sent to a particular division of the jail. Unwritten policies can establish ministerial duties where they require specific action under specific circumstances. See Cooley v. Bryant, 331 Ga. App. 718, 720-722 (1) (771 SE2d 411) (2015).

To demonstrate the existence of the alleged ministerial policy, Appellant points to deposition testimony from Weaver. His relevant testimony establishes that generally, if a court order pertaining to a particular inmate comes into the jail, a copy of that order needs to go to the transfer division; that if “the person” (“whoever receives the order”) does not forward the order to the transfer division, then the transfer division “can’t get it to the court”; that copies of orders are always faxed to the transfer division to keep certain people separated from one another; that if an order comes in “it will go to Records, Records will get a copy, [Weaver gets] a copy, downtown get [sic] a copy, everybody get [sic] a copy, and that’s kind of basically generally how it works”; and that “Classification, Transfer, all the sections of the jail should get a copy of any order that pertains to any particular individual.”

Appellant also points to deposition testimony from Robertson that confirms that she had a written job description that set forth a distributor’s responsibilities, including “faxing a copy of all transport orders; keep separate orders; medical orders and special conditions orders to the appropriate areas.” When asked if she had authorization to distinguish between the divisions of the jail to which orders are distributed, and if she had the authority to decide which sections of the jail received a suicide watch order, Robertson said she did not. However, Robertson also explained that her practice of sending orders to the transfer division only if they dealt with transport matters was the result of the instructions she received from supervisors.

The written policy applicable to Robertson’s job provides that orders should be sent to the “appropriate” areas. Although Robertson testified that she did not have discretion to make decisions about what those appropriate areas were, she testified about how she was trained and what the normal procedure was, as explained by her supervisor. Appellant fails to point to a specific policy, written or unwritten, that creates a ministerial duty specifically requiring Robertson to send a copy of suicide watch orders to the transfer department. Rather, the normal practice involved some analysis of the document. See Grammens, supra. The trial court did not err in granting summary judgment to Robertson.

(ii) Riley. Appellant argues that Riley, working as a disposition writer in the records division of the jail on September 7, 2010, was required to post inmate-specific information from incoming court orders onto the inmate’s information card. On appeal, Appellant points to the alleged policy of the records department regarding the transfer of information, as described in Riley’s testimony. Riley testified that one of the duties assigned to a disposition writer, as contained in a written summary of records department job duties, is to compare court documents with the information written on an inmate’s information card to ensure that the information is correct prior to the inmate’s folder being passed on to the personnel who enter the data into the computer system. The summary of job duties also provides that “[pjersonnel entering court dispositions [sic] primary function is to ensure whatever is written on the [inmate’s information] card from court is entered into the mainframe system.”

When asked, “So when the writer pulls [an inmate’s folder] off the cart, the writer’s job then is to take the information that is contained in the new orders and put it onto the [inmate’s information card]?”, Riley answered affirmatively. Appellant also points to Riley’s testimony that she did not have discretion to not copy information from an order in the inmate’s folder onto the inmate’s information card. Riley testified that the only requirement of which she was aware specifically regarding the handling of a suicide watch order was to fax it to everyone to “have everybody on alert,” and that certain things were only faxed to other departments, while other things were written on the card; but this is contradicted by her own testimony as previously described.

Riley’s duty to copy information from court orders onto an inmate’s information card was simple, absolute, and definite, arising .under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. Jobling, supra at 487 (2). Thus, Riley was not entitled to summary judgment. See McKissick, supra. We therefore reverse the grant of summary judgment as to Riley. Because we reverse the judgment entered in her favor on this basis, we need not address Appellant’s contention that the trial court erred in resolving a substantial and outcome determinative dispute of material fact in Riley’s favor.

(b) In her fourth enumeration of error, Appellant contends that the trial court erred by holding that Riley and Robertson are entitled to qualified immunity because the complaint in this case failed to allege that the defendants acted with malice or intent to injure. Appellant argues that the failure to allege these theories cannot be the basis for a grant of summary judgment. This enumeration is without merit.

The complaint only asserts claims based on the alleged negligence of the defendants. In the context of individual liability and qualified immunity, where there “has been no allegation! ] of actual malice or intent to injure!,] • • • suit. . . can be sustained only if [the defendant’s] actions were in the performance of a ministerial duty, and not a discretionary one.” Lincoln County v. Edmond, 231 Ga. App. 871, 875 (2) (501 SE2d 38) (1998). The trial court properly held that Riley and Robertson were entitled to qualified immunity because it found that their duties were not ministerial.

3. Jackson

Appellant contends that the trial court erred in granting summary judgment to Jackson while failing to adjudicate whether Jackson’s alleged failure to provide medical treatment for inmates constituted a breach of a statutory ministerial duty. Appellant argues that she “proved that... Jackson’s agreement with CMA eliminated any responsibility on CMA’s part for the medical care of prisoners like Hill who were not ‘in the actual physical custody of the Fulton County Jail.’ ” The court noted in its order that “Appellant further alleges Hill died as a proximate result of the breach by Defendant Jackson of his ministerial duty to provide medical treatment and care,” but the court never specifically addressed this claim in its grant of summary judgment.

Nonetheless, this contention does not present a reversible error. Jackson did not dispute that he had a ministerial duty to provide medical care, but argued that Appellant’s claims for negligence could not stand where the evidence showed that he fulfilled his duty by providing for medical care for inmates through the contract with CMA. Appellant argues that there was no system in place at the Fulton County jail to make decisions to provide for nonroutine medical treatment, but the testimony demonstrates that the usual practice was to return inmates to Fulton County’s jail if a nonroutine matter arose that Hall County did not agree to address, or to reimburse Hall County for the nonroutine treatment. Here, Jackson pointed to proof that he had fulfilled his duty, and Appellant did not present evidence to demonstrate a triable issue as to Jackson’s alleged breach of duty. Cox Enterprises, supra; see Anderson, supra.

As Jackson attested, as sheriff he was not personally involved in the day-to-day operations of inmate management. However, he provided for required services through contracts and policies. While the outcome of Appellant’s claim may have been different if Jackson were sued in his official capacity, the claim against him in his individual capacity was properly adjudicated by the trial court and we affirm the grant of summary judgment.

4. CMA and Dumas

The trial court granted summary judgment to Dumas and CMA on the basis that Appellant failed to demonstrate genuine issues of material fact on two elements of the claim against them, namely, the requirements (1) that they deviated from the applicable standard of care, and (2) that the deviation was the proximate cause of the injury. Appellant contends that the trial court erred by holding that CMA and Dumas breached no duties with regard to Hill under any standard of care, and by finding that there was no genuine issue of material fact as to proximate cause. We disagree with Appellant as to the issue of breach of duty and affirm on this basis.

In support of her argument that the trial court erred in finding that CMA and Dumas breached no duty to Hill, Appellant contends that the CMA contract did not exclude outsourced inmates; that regardless of implied contractual limitations, CMA and Dumas assumed a duty of care to Hill; and CMA took no steps to care for Hill when he was present at the Fulton County jail on September 16, 2010.

(a) The essential elements of a medical negligence claim are “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (citation and punctuation omitted). The parties’ dispute regarding CMA’s and Dumas’s duty, or absence of duty, to Hill seems to conflate the first and second elements. The parties point to CMA’s contract with Fulton County. Dumas and CMA allege that the contract does not explicitly require provision of services to outsourced inmates, and so they are entitled to summary judgment. Appellant argues that the contract does not exclude the provision of such services, and a dispute of material fact thus exists.

CMA and Dumas point to testimony from George Herron, the director of medical services for Fulton County, and Joy Church, the representative for CMA. Church testified that CMA was only responsible for providing medical and mental health services to inmates who were physically housed at the Fulton County jail. Herron testified that while an inmate was outsourced to another county’s jail, the other facility had responsibility for the inmate’s medical care. He further testified that Fulton County medical policies and procedures did not apply to outsourced inmates.

Appellant argues that there is evidence that CMA staff was responsible for communicating with Hall County medical staff regarding the condition of outsourced prisoners and arrangements for their return to Fulton County. She cites testimony from Deputy Baines of Hall County that he knew how the Fulton County jail operated, and after the medical departments from Hall and Fulton Counties conferred about an inmate, Fulton County’s medical staff would contact Martin to tell him to return the inmate to Fulton County’s jail. This testimony speaks to the regular practice between the Hall County and Fulton County jails, and is not given by a party with first-hand knowledge of CMA’s contractual obligations.

Appellant also points to testimony from Martin about Dumas’s involvement in the process. In discussing the e-mail that he received from Baines regarding Hill’s suicidal state, Martin testified, “If I got this type of information,... I... talked to Dumas about it. And once I talked to Dumas about it, it’s her responsibility, then to get with her superiors as to how we’re going to bring this . . . inmate back for an evaluation.” He further testified that he communicated to Dumas what Hall County’s doctor said, “for her to tell me what our doctors say. And whatever their decision is, that’s when I move the inmate.”

Appellant further argues that testimony from Jackson supports the proposition that CMA personnel were required to be involved in making medical decisions for outsourced prisoners. During his deposition, Jackson was asked, “Was it your understanding, nonetheless, that because of its agreement with Fulton County and the sheriff’s department, that CMA personnel would be involved in making medical decisions for those outsourced prisoners?” He responded, “Well, based on this [memorandum of understanding], they would have to be, because the agreement we had with Hall County, non-routine, would be, either treated by Fulton County or approved by Fulton County.” Appellant argues that Jackson indicated that his department’s policies applied to outsourced inmates:

Q: The sheriff’s department policy, then, as I understand it, was that the bureau, jail bureau was to provide for the continuity of healthcare and emergency care from admission to discharge, correct?
A: Yes.
Q: And this policy applied, did it not, to outsourced prisoners?
A: It doesn’t specifically say that.
Q: In your opinion, did it encompass, that is to say, the policy that the jail bureau shall provide for the continuity of healthcare and emergency care, as I just recited, did that include outsourced prisoners?
A: It doesn’t specifically say that. We can assume it does.
Q: Is it your belief that it should have?
A: Yes.
Q: And should have applied to Richard Hill?
A: Yes.
Q: So am I correct in understanding, then, that the policy of your department was that inmates with mental health disorders were to be provided with the appropriate medication and counseling intervention?
A: Yes.
Q: And that the policy applied to outsourced prisoners?
A: Yes.
Q: And applied to Richard Hill?
A: Yes.

Jackson’s testimony serves only to establish that it was the policy of the sheriff’s office that inmates were to be provided care, but does not demonstrate that CMA’s contract encompassed outsourced inmates. Nothing in the testimony cited by Appellant creates a triable issue as to the question of whether CMA’s contract applied to outsourced inmates.

Moreover, the contract itself clearly establishes the duties of CMA and its employees. It provides:

Inmate Mental Health Services are intended only for those inmates in the actual physical custody of the Fulton County Jail facilities____[CMA] shall bear no responsibility for any other inmates . . . unless Sheriff’s Office agrees to provide Inmate Mental Health Services to inmates housed in another jail or other facility pursuant to an interagency agreement or intergovernmental agreement, in which case [CMA] and Sheriff’s Office will mutually determine, in good faith, whether to reallocate [CMA’s] resources to the other jail or facility or whether [CMA] will be asked to add additional resources, at additional cost, at the other jail or facility. . . . Except as herein provided, inmates not in the physical custody of the Fulton County jail facilities will not be deemed to be inmates. . . . Except as herein provided, inmates in the custody of other penal institutions or jails at the request of the County shall likewise be excluded from the daily population count and it shall not be [CMA’s] responsibility, either to furnish or to pay the costs of, Inmate Mental Health Services to those inmates.

“Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.” Elwell v. Keefe, 312 Ga. App. 393, 394-395 (718 SE2d 587) (2011). Here, the agreement excludes outsourced inmates from CMA’s obligations, and Appellant has not demonstrated that any steps were taken toward determining whether CMA would allocate resources to Hall County’s jail as required by the agreement in order to bring inmates housed in Hall County under CMA’s contractual duties.

In the trial court, Defendants CMA and Dumas pointed to a lack of evidence creating a triable issue as to the question of deviation from the applicable standard of care. Appellant then bore the burden of pointing to evidence giving rise to a triable issue. Cox Enterprises, supra. Nothing in the testimony cited by Appellant creates a triable issue as to the question of whether CMA’s contract applied to outsourced inmates, and therefore, as to the element of deviation from the applicable standard of care. We must affirm if the court’s order was right for any reason. See Anderson, supra.

(b) Appellant contends that regardless of any contractual limitations, CMA and Dumas assumed a duty of care to Hill. We disagree. Appellant cites the Restatement 2d Torts § 324A, arguing that CMA and Dumas are subject to liability to Hill because they undertook to perform the duty of medical and mental health care owed to him by Jackson, or because the harm suffered by Hill was the result of reliance by Jackson or Hill upon CMA’s and Dumas’s undertaking of the duty owedby Jackson to outsourced inmates. See Restatement 2d Torts § 324A (b) and (c).

As to subsection (b), Appellant provides no evidence that CMAor Dumas undertook the duties that Jackson owed to Hill. Appellant argues that “Dumas was actively involved in communications and decisions regarding the care of Hill while he was in the Hall jail.” However, at most, the evidence shows that Dumas was involved in communications about Hill’s situation. There is no evidence that Dumas took responsibility for the decisions about Hill, or that Dumas or CMA affirmatively undertook any duty to Hill, while he was in Hall County.

As to subsection (c), there is no evidence that Jackson relied on CMAor Dumas to undertake Hill’s care while he was in Hall County. Jackson testified that it was his understanding that nonroutine treatment would be provided by the county jail where the inmate was housed, or would be handled by Fulton County if the other county refused to provide it. Moreover, Jackson indicated that he was not familiar with the details of the arrangement between the Hall County jail and the Fulton County jail as to responsibilities for treating a suicidal inmate, and that these matters were handled by others. When asked if Fulton County personnel were responsible for bringing Hill back for treatment, Jackson responded “[i]t depends on how this was handled between Hall County and Fulton County.” Appellant has not demonstrated that Jackson relied on CMA to Hill’s detriment.

(c) Appellant further argues that there is a triable issue with regard to this element of her claim because CMA took no steps to care for Hill when he was present at the Fulton County jail on September 16, 2010, the day that he committed suicide. We find this argument to be without merit given the absence of evidence that any agent of CMA was aware of Hill’s presence at the Fulton County jail on the date in question.

The court was authorized to grant summary judgment to Dumas and CMA on the grounds that Appellant did not demonstrate a triable issue as to every element of her negligence claim. Given this finding, we need not address Appellant’s contention that the court erred in finding that there was no triable issue as to the element of proximate cause. We affirm the grant of summary judgment to Dumas and CMA.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Boggs, J., concur.

Decided March 24, 2016 —

Reconsideration dismissed April 12, 2016

Cert, applied for.

Official immunity. Fulton Superior Court. Before Judge Schwall.

G. Brian Spears; Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, for appellant.

Coles Barton, Shaun M. Daugherty, J. Kelly Viel; Steven E. Rosenberg, Walter B. Yarbrough; Nelson, Mullins, Riley & Scarborough, Anita W. Thomas, Eliyahu E. Wolfe; Freeman, Mathis & Gary, Theodore Freeman, Wayne S. Melnick, for appellees.

       An additional defendant, Wanda Murray, was dismissed from the suit.

       The superior court also granted summary judgment to defendant Bennett; Appellant does not appeal that judgment.

       As recognized in Presiding Judge Barnes’s concurring opinion in Tattnall County v. Armstrong, 333 Ga. App. 46 (775 SE2d 573) (2015), the terms “official immunity” and “qualified immunity are used interchangeably in Georgia case law to refer to the type of immunity that sometimes shields government employees from individual liability; the term “official immunity” creates confusion with the defense of sovereign immunity. Id. at 52-53. We therefore adopt Judge Barnes’s suggested nomenclature and hereinafter refer to individual-capacity immunity as “qualified immunity,” regardless of the term used in applicable pleadings, orders, or cited cases.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A1682.
    A15A1683.
    LEWIS v. McNEELY et al. McNEELY et al. v. MEDI-SOURCE, INC. et al.
    (783 SE2d 172)
   Boggs, Judge.

These consolidated appeals follow a bench trial on the sole issue of the award of a set-off against a judgment. Because it appears that the trial court erred with regard to a stipulation, and we cannot determine from the order on what basis the trial court awarded the set-off, we reverse in part, vacate in part, and remand these cases with direction.

“In a bench trial the court sits as the trier of fact and his findings shall not be set aside unless clearly erroneous. The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) CRS Sirrine, Inc. v. Dravo Corp., 213 Ga. App. 710, 721 (4) (445 SE2d 782) (1994). And “we apply a de novo standard of review to any questions of law decided by the trial court. . . .” (Citations and punctuation omitted.) Memar v. Jebraeilli, 303 Ga. App. 557, 558 (694 SE2d 172) (2010).

The relevant facts are as follows. In March 2007, Thomas McNeely, his wife Susan McNeely and his sister-in-law Marie Wyrwa, Edwin Lewis, Charles Ellis, Scott Harelson and Medi-Source, Inc. (“MSI”) obtained a loan in the amount of $700,000 from Security Bank and Trust Company (“SB&T”) and executed a promissory note. The funds were to cover inventory and provide working capital for MSI, a medical supply company. In June 2009, MSI executed a promissory note for a line of credit in the amount of $ 1,250,000, guaranteed by the McNeelys, Wyrwa, Lewis, and Ellis. In July 2009, Lewis, MSI, and Ellis signed an agreement to indemnify the McNeelys and Wyrwa for any liability or obligation under the $700,000 promissory note, upon the McNeelys’ and Wyrwa’s payment of their respective portions of the loan. Lewis testified that in executing the indemnity agreement, he, MSI and Ellis, were allowing the McNeelys and Wyrwa “to pay their portion in advance and be taken off the note at [SB&T].”

On May 7, 2010, Ellis filed a petition for bankruptcy. Ten days later, on May 17, 2010, the McNeelys and Wyrwa paid off the full balance of $588,476.18 due under the $700,000 loan and were assigned the promissory note. The next day they sued Lewis and MSI for this amount under the indemnity agreement asserting that Lewis and MSI failed to make their annual payment when due. Lewis answered and counterclaimed for contribution, breach of fiduciary duty, and breach of covenant of good faith and fair dealing, and also filed a cross-claim against MSI.

Between December 2010 and June 2011, MSI made payments totaling $101,604.91 on the $1,250,000 line of credit, and between November 2010 and June 2011 received $21,514.60 from ISL, the company that purchasedMSI in 2010. On June 28,2011, the McNeelys and Wyrwa paid off the $260,096.91 remaining balance on the $1,250,000 line of credit and were also assigned this promissory note. In the months following this pay-off, Wyrwa received more than $60,000 from MSI.

On June 30, 2011, the trial court granted summary judgment to the McNeelys and Wyrwa on their claim against Lewis and MSI under the indemnity agreement and awarded them $588,476.18. During the subsequent 2014 bench trial on Lewis’ counterclaim, a forensic accountant testified that in addition to other amounts, the $101,604.91 paid toward the line of credit, the $21,514.60 from ISL, and the $63,478.37 paid to Wyrwa, could have been applied to reduce the $588,476.18 judgment on the indemnity agreement to decrease Lewis’ exposure. Following the trial, the court issued an order awarding a $183,119.51 set-off against the $599,544.96 ($588,476.18 plus attorney fees) judgment against Lewis and MSI. It is from this ruling that both parties appeal.

In Case No. A15A1682, Lewis appeals, arguing that he is entitled to be completely discharged from the prior judgment because the McNeelys and Wyrwa increased his risk of liability under the indemnity agreement, that in the alternative, he was entitled to an additional set-off of $66,117.52, and that the trial court erred in denying his request for attorney fees. In Case No. A15A1683, the McNeelys and Wyrwa appeal, arguing that while they agreed to a set-off of $60,000 for the payments made to Wyrwa, the court erred in allowing a set-off of the additional $123,119.51.

The trial court’s order provided in relevant part:

The court determines that Lewis is entitled to a set-off against the judgment previously entered against him in the amount of $186,597.88. [] The court’s finding is based upon the following:
(A) Stipulated Above the Line Set-off.
Lewis claims an entitlement to a set-off of receivables which were paid to plaintiffs and/or towards the second line of credit, as well as those receivables not immediately disbursed.
The plaintiffs have essentially stipulated to this set-off and, therefore, the court need not address the legality of the set-off. Nonetheless, the court is persuaded that Georgia law would allow such an off-set, even without stipulation, to the extent that “above-the[-]line” items were applied to the detriment of Lewis. OCGA § 13-7-1.
It is not disputed that $101,604.91 was paid towards the line of credit and $60,000 was paid to Wyrwa. The court also finds that plaintiffs are entitled to the “above the line” receivables which were not readily disbursed in the amount of $21,517.60[] for a total set-off of [$183,119.51],

1. The trial court’s order provides that the McNeelys and Wyrwa stipulated to “this set-off,” referring to the total amount awarded set forth in the first paragraph of its legal findings. But the transcript reveals that the McNeelys and Wyrwa stipulated to a set-off of only the $60,000 paid to Wyrwa. Because the trial court clearly erred in its finding that the McNeelys and Wyrwa stipulated to the entire set-off it awarded, we reverse this portion of the judgment. See, e.g., Blue v. Hemmans, 327 Ga. App. 353, 359 (1) (759 SE2d 72) (2014) (court clearly erred in factual findings); Wetherington v. Wetherington, 291 Ga. 722, 728 (3) (732 SE2d 433) (2012) (court erred in concluding that wife owed husband an amount more than what was stipulated to).

2. Considering then only the remaining $123,119.51 of the set-off, the trial court stated that “Georgia law would allow such an off-set,” and cited to OCGA § 13-7-1. That Code section provides: “Setoff does not operate as a denial of the plaintiff’s claim; rather it allows the defendant to set off a debt owed him by the plaintiff against the claim of the plaintiff.” But the evidence showed that the amount awarded by the court was not a set-off of a debt owed to Lewis and MSI by the McNeelys and Wyrwa. See OCGA §§ 13-7-1; 13-7-7 through 13-7-11 (allowances for set-off, none of which are applicable here). Thus, to the extent the trial court awarded a legal set-off from the final judgment, such ruling would be error.

But, we cannot definitively determine from the court’s order whether it was awarding a legal set-off or an equitable set-off based upon its general statement that “Georgia law would allow such an off-set.” See OCGA § 23-2-76 (equitable set-off statute); see also Bank of the Ozarks v. DKK Dev. Co., 315 Ga. App. 539, 541 (726 SE2d 608) (2012) (explaining distinction between legal and equitable set-off). For this reason, we vacate the court’s judgment and remand this case for clarification of the basis for the set-off. See Haney v. Camp, 320Ga.App. 111, 113(1) (739 SE2d 399) (2013) (remand for trial court to clarify ruling with respect to attorney fees); Memar, supra, 303 Ga. App. at 562-563 (2) (b) (reversing award of damages and remanding with direction for trial court to demonstrate how award was calculated).

Judgment reversed in part and vacated in part, and cases remanded with direction.

Doyle, C. J., and Mercier, J., concur.

Decided March 15, 2016 —

Reconsideration denied April 13, 2016.

Batch & Bingham, Matthew B. Ames; McNatt, Greene & Peterson, Hugh B. McNatt, Hugh Peterson III, for appellants.

Collier & Gamble, Edward R. Collier, for appellees.

       The McNeelys and Wyrwa filed a complaint against Lewis and MSI arising out of this promissory note, seeking contrihution from them in their capacity as guarantors. That case is currently pending in the superior court of another county.

       The parties later stipulated that this amount was $60,000.

       This amount was corrected to $183,119.51 later in the trial court’s order.

       This amount was corrected to $21,514.60 later in the trial court’s order.

       The court stated in the next paragraph of its order, however, that “[n]ot all of the ‘above the line items were stipulated as a set off,’ ” apparently referring to another $66,117.52 requested by Lewis.

       It would appear that an equitable set-off would invoke the jurisdiction of the Supreme Court of Georgia. See Beauchamp v. Knight, 261 Ga. 608, 609 (2) (409 SE2d 208) (1991) (Supreme Court of Georgia has appellate jurisdiction in all equity cases; “Whether an action is an equity case for the purpose of determining jurisdiction on appeal depends upon the issue raised on appeal, not upon how the case is styled nor upon the kinds of relief which may be sought by the complaint. That is, equity cases are those in which a substantive issue on appeal involves the legality or propriety of equitable relief sought in the superior court — whether that relief was granted or denied.” (Punctuation omitted; emphasis in original.)); see also Glen Oak, Inc. v. Henderson, 258 Ga. 455, 456 (1) (a), 457 (1) (b), n. 3 (369 SE2d 736) (1988) (enforcement of a judgment may be enjoined under equitable set-off; equitable set-off “provides an exception to the strictures of legal set-off”); Miller v. Smith, 136 Ga. 117 (70 SE 887) (1911) (equitable petition seeking to have equitable set-off against judgment).

       We note that while in Bank of the Ozarks, supra, the trial court granted what it considered to be “equitable set-off,” and the Bank argued that DKK had “unclean hands” and was not entitled to equitable relief, our court ruled only that the set-off was improper because the Bank and the Holding Company were separate entities, and that whether a set-off is legal or equitable in nature, “it must be between the same parties and in their own right.” 315 Ga. App. at 540-541.


author: MCFADDEN, Judge.

text:
    A15A1975.
    CRANKSHAW v. THE STATE.
    (786 SE2d 245)
   MCFADDEN, Judge.

After a jury trial, Ronya Crankshaw was convicted of conspiracy to possess oxycodone with intent to distribute, conspiracy to possess roxicodone with intent to distribute, criminal attempt to sell oxycodone, and possession of oxycodone with intent to distribute. Crankshaw’s motion for a new trial was denied, and she appeals. She challenges the sufficiency of the evidence, but a review of all the evidence in the light most favorable to the verdict reveals that there was sufficient evidence from which a rational trier of fact was authorized to find guilt beyond a reasonable doubt. Crankshaw also challenges the admission of alleged hearsay evidence, but any such hearsay objection was waived. She further claims that her trial counsel was ineffective, but she has failed to show that counsel’s performance was both deficient and prejudicial. Finally, Crankshaw contends that the trial court erred in failing to merge for sentencing the offenses of attempt to sell oxycodone and possession of oxycodone with intent to distribute; however, those offenses did not merge because each required proof of a fact that the other did not. Accordingly, we affirm.

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We do not weigh the evidence or judge the credibility of witnesses, but determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Owens v. State, 334 Ga. App. 203 (778 SE2d 830) (2015).

So viewed, the evidence shows that Crankshaw and Yvonne Parker operated a prescription drug ring from their home in Monroe, Georgia. Crankshaw and Parker used individuals addicted to prescription pain medications, including oxycodone and roxicodone, to obtain prescriptions from doctors and the drugs from pharmacies. In exchange, Crankshaw and Parker gave drugs to the individuals for their own use, and also provided them money, lodging and food. Crankshaw and Parker then sold the illegally obtained prescription pain pills to dealers and other customers for a profit. After her arrest, Parker died of an overdose of oxycodone. During a search of her and Crankshaw’s house, officers found, among other things, a binder with financial records of their illegal drug business, a notebook with the names of pharmacies around the state, and pill bottles.

In challenging the sufficiency of the evidence, Crankshaw asserts that the evidence points only to Parker’s guilt and that there is no evidence implicating her in the illegal prescription drug operation. However, Crankshaw ignores evidence presented by the state showing that she actively participated in the drug operation with Parker by supplying drugs to a dealer; driving individuals to pharmacies and pain clinics to obtain the drugs; directing and paying another person to take individuals to specific pharmacies and pain clinics; instructing individuals how to act in doctor offices to avoid suspicion; instructing individuals on the documentation needed to obtain prescription drugs from a doctor; and giving money, pills, food and lodging to individuals in exchange for the prescription drugs. Having reviewed the evidence in the light most favorable to the verdict, we conclude that the overwhelming evidence of guilt “was sufficient to sustain the conviction[s].” Atkinson v. State, 280 Ga. App. 635, 637 (634 SE2d 828) (2006).

2. Admission of hearsay.

Crankshaw claims that the trial court erred in admitting hearsay when a police officer testified that after he placed co-conspirator Parker under arrest, she said that she was not feeling well and had “swallowed Ronya’s pills.” However, as Crankshaw acknowledges, she did not object to the testimony. “As a result, [Crankshaw] has waived any [hearsay] claim about the admissibility of the [testimony].” Cotton v. State, 297 Ga. 257, 259 (3) (773 SE2d 242) (2015) (citations omitted). See also OCGA §§ 24-1-103 (a) (1); 24-8-802. She also has not demonstrated plain error, having failed, in light of the overwhelming evidence of guilt, “to make an affirmative showing that the [admission of the testimony] probably did affect the outcome below.” Gates v. State, 298 Ga. 324, 327 (3) (781 SE2d 772) (2016) (citation and punctuation omitted). See also OCGA § 24-1-103 (d).

3. Ineffective assistance of counsel.

Crankshaw claims that she is entitled to a new trial because her trial counsel was ineffective in (a) failing to inform her of the state’s plea offer, (b) failing to object to the state’s motion in limine seeking admission of hearsay statements made by deceased co-conspirator Parker, (c) failing to raise best evidence objections to certain testimony, and (d) failing to object to inadmissible hearsay.

To establish [these] claim [s] of ineffective assistance of counsel, [Crankshaw] must show that (1) [her] trial counsel’s performance was professionally deficient and (2) but for such deficient performance there is a reasonable probability that the result of the trial would have been different. On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.

Adams v. State, 298 Ga. 371, 372-373 (2) (782 SE2d 36) (2016) (citation and punctuation omitted). Crankshaw has failed to show both deficient performance and prejudice.

(a) Plea offer.

Crankshaw contends that trial counsel failed to convey to her the state’s final plea bargain offer of thirty years, with eight years to be served as a recidivist and the remainder on probation. But contrary to Crankshaw’s assertion, at the motion for new trial hearing, counsel testified that although he could not recall the precise numbers involved in the plea offer, he did discuss the state’s final offer with Crankshaw and she adamantly refused to accept any offer involving recidivist sentencing. Based on this testimony, the trial court was authorized to find that counsel did in fact communicate the state’s final plea offer to Crankshaw.

Crankshaw’s conflicting testimony at the hearing, claiming that counsel did not convey the offer to her, does not alter this result as the trial court found that she was not a credible witness and the court was “not required to accept [her] version of events.” Ansley v. State, 325 Ga. App. 226, 235 (4) (a) (750 SE2d 484) (2013) (citation and punctuation omitted). “[I]t was the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony between the witnesses.” Alwin v. State, 267 Ga. App. 236, 238 (1) (599 SE2d 216) (2004) (citation and punctuation omitted). Accordingly, Crankshaw “has failed to establish that [s]he received ineffective assistance of counsel in connection with the [sjtate’s plea offer.” Silvey v. State, 335 Ga. App. 383, 394 (3) (a) (780 SE2d 708) (2015).

(b) Motion in limine.

Crankshaw argues that trial counsel was ineffective in failing to object to the state’s motion in limine seeking admission of hearsay statements made by deceased co-conspirator Parker. However, counsel testified at the motion for new trial hearing that he did not object to the statements as a matter of trial tactics and strategy. According to counsel, the defense theory was that Parker was the “kingpin” running the illegal narcotics operation, and evidence of her statements actually enhanced that defense. See Hurt v. State, 298 Ga. 51, 57 (3) (b) (779 SE2d 313) (2015) (no ineffective assistance where counsel failed to raise hearsay objection to recordings that supported defense theory that another person was actual perpetrator). “The decision of whether to interpose certain objections is a matter of trial strategy and tactics. Errors in judgment and tactical errors do not constitute denial of effective assistance of counsel.” Abernathy v. State, 299 Ga. App. 897, 903 (3) (a) (685 SE2d 734) (2009) (citations and punctuation omitted). Here, trial counsel’s decision not to object to the motion in limine concerning Parker’s statements was a matter of “trial tactics and strategy [that does] not amount to ineffective assistance of counsel.” Collier v. State, 303 Ga. App. 31, 35 (3) (692 SE2d 697) (2010) (citation and punctuation omitted).

(c) Best evidence.

Crankshaw contends that trial counsel was ineffective for failing to assert best evidence objections to testimony concerning an e-mail, business cards, and a text message. Pretermitting whether any such best evidence objections had merit, the

ineffective assistance claim on this ground fails because [Crankshaw] cannot show prejudice. [She] did not show that if trial counsel had made such... objection [s] that the [s]tate could not have introduced the original writings or satisfactorily accounted for their absence. [Crankshaw] has [thus] failed to demonstrate to a reasonable probability that, but for counsel’s failure to assert . . . best evidence rule objection^], the trial’s result would have been different. Accordingly, the jury verdict will stand.

Smith v. State, 317 Ga. App. 801, 806 (3) (c) (732 SE2d 840) (2012) (citations and punctuation omitted).

(d) Hearsay objection.

Crankshaw complains that trial counsel was ineffective in failing to raise a hearsay objection to a witness’ testimony that various individuals asked Parker and Crankshaw for pills. But given the overwhelming evidence of guilt, “we cannot say this testimony in reasonable probability changed the outcome of [the] trial; accordingly, [Crankshaw] suffered no prejudice from trial counsel’s failure to object to this testimony.” Hurt, supra at 58 (3) (d).

Decided March 9, 2016 —

Reconsideration denied April 13, 2016.

4. Merger.

Crankshaw argues that the trial court erred in failing to merge the offenses of attempt to sell oxycodone and possession of oxycodone with intent to distribute because they were based on the same conduct. However,

[u]nderOCGA § 16-1-7, when the same conduct of an accused establishes the commission of more than one crime, the accused may be prosecuted for each crime, unless one crime is included in the other. To determine if one crime is included in and therefore merges with another, we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine whether each offense requires proof of a fact which the other does not.

Castaneira v. State, 321 Ga. App. 418, 429 (6) (740 SE2d 400) (2013) (citations and punctuation omitted).

Here, the attempt to sell oxycodone offense required the state to prove that Crankshaw had the intent to sell the drug and that she took a substantial step toward that crime by arranging the sale of a certain amount of oxycodone pills, which the state proved through evidence that the co-conspirators had agreed over the phone to meet a drug dealer at their house and sell him 300 oxycodone pills for $5,400. See OCGA §§ 16-4-1; 16-13-30 (b); 16-13-33. The possession of oxycodone with intent to distribute offense required the state to prove that Crankshaw possessed the drug with the intent to distribute it. See OCGA § 16-13-30 (b). Thus, each offense required proof of a fact that the other did not — the substantial step element of the attempt charge was not required to prove the possession with intent charge, while the possession element of the possession with intent charge was not required to prove the attempted sale charge. See generally Sullivan v. State, 178 Ga. App. 769, 771 (344 SE2d 737) (1986) (illegal possession and illegal sale of a proscribed drug are separate crimes as a matter of law). Indeed, “the Drinkard-required evidence test for merger applies to cases involving attempt crimes. Because [Crankshaw’s] convictions for offenses in this case each required proof of a fact which the other did not, the trial court did not err in [not merging them and in] sentencing [her] on both of these convictions.” Brown v. State, 321 Ga. App. 798, 803 (3) (743 SE2d 474) (2013) (citations and punctuation omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Law Office of David S. Cason, David S. Cason; Langdale Vallotton, Katherine A. Gonos, for appellant.

Layla H. Zon, District Attorney, W. Cliff Howard, Assistant District Attorney, for appellee.


author: Ellington, Presiding Judge. DILLARD, Judge,

text:
    A15A2003.
    BO PHILLIPS COMPANY, INC. et al. v. R. L. KING PROPERTIES, LLC et al.
    (783 SE2d 445)
   Ellington, Presiding Judge.

Appellants Bo Phillips Company, Inc. (“BPC”) andRo Benn d/b/a Big Benn Entertainment (“Benn”) sued R. L. King Properties, LLC and Robert L. King (collectively, the “appellees”) for conversion, among other claims. BPC and Benn contend that they rented and delivered equipment to a DeKalb County nightclub, the premises of which was owned by King Properties, and the appellees later denied BPC and Benn access to the premises and refused to return their equipment. The trial court granted summary judgment in favor of the appellees on all claims and denied BPC’s and Benn’s motion to compel discovery as moot. The trial court also impliedly denied BPC’s and Benn’s cross-motion for summary judgment. BPC and Benn appeal from the trial court’s grant of summary judgment on their claims for conversion, punitive damages, attorney fees, and the remedy of a constructive trust. They also appeal from the trial court’s denial of their motion to compel and the trial court’s denial of their cross-motion for summary judgment. For the reasons set forth below, we affirm in part and reverse in part.

Under OCGA § 9-11-56 (c),

[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014).

The evidence shows that BPC is in the business of renting, selling, and servicing traffic and pedestrian control devices, among other safety-related gear. BPC purchased 150 eight-foot crowd control barricades on February 2, 2012, from an identified vendor. John Craig, Jr., BPC’s vice president, testified by affidavit that on or about March 8, 2012, BPC rented and delivered 20 of those barricades to a nightclub known as Club Libra, which was operating on property located at 2549 Gresham Road in DeKalb County (the “premises”). BPC rented and delivered another ten barricades to Club Libra on March 30, 2012. Attached to the affidavit, among other documentation, were delivery tickets showing a rental of barricades at a daily rate. BPC later attempted to regain possession of the barricades in October 2012, but the premises were closed and padlocked.

Benn, through his business Big Ben Productions (“Big Ben”), owns, rents, and services sound, stage, and lighting equipment. Benn testified that on October 17, 2011, Big Ben rented and delivered 42 pieces of equipment to Club Libra, as described in an attached agreement with “Kareem Hawthorne ‘Club Libra’ BKE Ent.” According to Benn, he was unable to regain possession of the equipment in July 2012 as the premises were closed and padlocked.

Kareem Hawthorne testified by affidavit that he is a member of Blacknights Entertainment, LLC, which operated Club Libra on the premises. Hawthorne’s testimony showed the following. On or about October 17, 2011, Benn leased to Blacknights sound, stage, and lighting equipment for use at Club Libra. In addition, on March 8, 2012, BPC leased to Blacknights twenty eight-foot crowd control barricades for use at Club Libra. BPC leased to Blacknights, also for use at Club Libra, an additional ten barricades on March 30, 2012. King permanently locked Blacknights out of Club Libra on August 29, 2012, at which time the pedestrian barricades that BPC had leased to Blacknights and the equipment that Benn had leased to Blacknights remained on the premises.

On August 22,2012, King Properties sued Blacknights, as lessee, and Hawthorne and Tarrik Mabon, as lease guarantors, to recover for rent, taxes, and insurance allegedly owing under a lease agreement with respect to the premises. In an answer verified by Hawthorne and Mabon, the defendants asserted that the personal property on the premises was both leased and owned. In discovery responses filed in 2013, Blacknights, Hawthorne, and Mabon identified the items remaining on the Property as including “30 barricades (Leased Equipment),” six “DJ Speakers ... (Leased Equipment)” and “Sound and Lighting Equipment (Leased Equipment).” In their discovery responses, Hawthorne and Mabon also identified “Bo Phillips” and “Rogelio Benn” as two of the individuals with whom they or Black-nights “conducted business and/or leased equipment from August 1, 2011 until August 25, 2012.”

1. BPC and Benn contend that the trial court erred in granting summary judgment to the appellees on their claim for trover and conversion of their personal property. Conversion constitutes “an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” (Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987). To establish a prima facie case for conversion, “the complaining party must show (1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property.” (Citation and punctuation omitted.) Trey Inman & Assocs. v. Bank of America, 306 Ga. App. 451, 457 (4) (702 SE2d 711) (2010). See Hooks v. Cobb Center Pawn & Jewelry Brokers, 241 Ga. App. 305, 308 (5) (527 SE2d 566) (1999) (accord).

The parties agree that Blacknights was in possession of personal property when King Properties locked it out of the premises. And “[i]t is presumed that title follows the possession of the property.” (Citation omitted.) Hinchcliffe v. Pinson, 87 Ga. App. 526, 529 (74 SE2d 497) (1953). The presumption that one in possession of personal property is the owner of that property is, however, a rebuttable presumption. See Hattaway v. Keefe, 191 Ga. App. 315, 317 (1) (381 SE2d 569) (1989). As set forth above, BPC and Benn came forward with evidence, including statements by Blacknights and its members, from which a trier of fact could conclude that BPC owned the pedestrian barricades and Benn owned the sound and lighting equipment that was in the possession of Blacknights when Blacknights was locked out of the premises. The appellees claim that the evidence was insufficient because of a lack of serial numbers or other particular identifying information as to the claimed property. As to BPC, the appellees argue that the delivery ticket for the pedestrian barricades shows 50, not 30, were delivered; there was a lack of evidence of ongoing rental payments for the barricades; the person who ordered the barricades, Rowan Reid, was not shown to be associated with Club Libra or Blacknights; and Craig’s affidavit and Hawthorne’s discovery responses are inconsistent as to the date of the lease. With respect to Benn, the appellees argue that equipment listed in the lease agreement for the DJ sound and lighting equipment was inconsistent with the demand letter for the return of equipment sent by Benn’s counsel and with the list of leased equipment produced in discovery by Blacknights; the complaint alleged Benn delivered 42 pieces of “sound and lighting” equipment but Hawthorne’s affidavit refers to 42 pieces of “sound, stage, and lighting equipment” (emphasis supplied); and Benn failed to come forward with any evidence showing periodic payments consistent with a lease. However, while the appellees point to inconsistencies and conflicts in the evidence, they were for the jury to resolve. See Gateway Bank & Trust v. Timms, 259 Ga. App. 299, 300 (1) (577 SE2d 15) (2003) (in trial for conversion of a trailer, conflicting evidence as to true ownership of the trailer, notwithstanding the lack of serial number or other identifying information as to the trailer upon manufacture, was sufficient to support the jury’s verdict).

The appellees also rely on evidence that King Properties retained a landlord’s lien against Blacknights’ property. They do not, however, rely on a statutory landlord’s lien. Rather, King Properties shows that, under its lease agreement with Blacknights, it was entitled to retain possession of Blacknights’ personal property “until all charges of any kind” were paid. See Colonial Self Storage v. Concord Properties, 147 Ga. App. 493, 494 (1) (249 SE2d 310) (1978) (rental contract allowed landlord to seize tenant’s personal property upon nonpayment of rent). However, the appellees do not show that King Properties was authorized under its agreement with Blacknights, or on any other basis, to retain personal property that Blacknights did not own pending satisfaction of Blacknights’ obligation to King Properties. They do suggest that, if BPC and Benn are the true owners of the personal property at issue, then King Properties was entitled to retain such property pending payment of storage fees, which the appellees’ counsel characterized as an “offset” at summary judgment hearing. But pretermitting whether King Properties could assess a storage fee, they have not offered BPC and Benn the opportunity to take the property at issue upon payment of such a fee, and they do not show thereby an absence of triable issues of material fact as to BPC’s and Benn’s title and right to possession that would authorize the grant of summary judgment to the appellees on the conversion claim.

In addition to evidence as to their title, BPC and Benn came forward with evidence that King Properties was in possession of their personal property, had received their demands for the return of their property, and had refused those demands. The record shows that in 2013, counsel for BPC and Benn sent letters to King Properties’ counsel demanding the return of BPC’s pedestrian barricades and Benn’s sound and lighting equipment. King, the sole owner of King Properties, later acknowledged in his deposition that he received the demand letters. King also acknowledged that King Properties owns the premises, which it rented to Blacknights, but that he locked Blacknights out of the premises when it failed to pay rent. King testified that, as of the time of his deposition in 2014, there had been no tenants in the premises after Blacknights. King acknowledged that there remained sound and lighting equipment, as well as pedestrian barricades, on the premises. According to King, none of the sound and lighting equipment, nor any of the pedestrian barricades, had been taken off the premises. King intended to hold onto all of the personal property on the premises until he received payment from Blacknights, and, in the event Blacknights failed to pay, he intended to dispose of it in a sheriff’s sale.

In light of the foregoing, as to defendant King Properties, we conclude that BPC and Benn came forward with evidence to show a triable issue of fact as to each element of their claim for conversion. As for defendant King, the evidence shows that King was the sole member of King Properties, a limited liability company. “A LLC member may be held individually liable if he or she personally participates or cooperates in a tort committed by the LLC or directs it to be done.” (Citations omitted.) Milk v. Total Pay & HR Solutions, 280 Ga. App. 449, 454 (634 SE2d 208) (2006). If King Properties committed the tort of conversion of BPC’s and Benn’s property, a jury could find that Kang participated in and directed that conversion and was therefore personally liable. See BTL COM v. Vachon, 278 Ga. App. 256, 260 (1) (628 SE2d 690) (2006) (Summary judgment in favor of individual defendants was improper as there remained issues of fact as to whether they participated in false representations that induced plaintiff to enter into agreement with the defendants’ company.); Jennings v. Smith, 226 Ga. App. 765, 766-767 (1) (487 SE2d 362) (1997) (If a jury found the corporation negligent in constructing or repairing the house, it could also find the appellee, a corporate officer, personally liable for such negligence because he specifically directed or participated in the construction and repairs.). It follows that the trial court erred in granting the appellees’ motion for summary judgment as to BPC’s and Benn’s conversion claim.

2. BPC and Benn further contend that the trial court erred in granting the appellees’ motion for summary judgment as to their claim for imposition of a constructive trust. We agree. In their complaint, BPC and Benn asked that a constructive trust be placed on their property as it was being held by the appellees contrary to their lawful rights. “A constructive trust arises not from the intent of the parties, but by equity with respect to property acquired by fraud, or although acquired without fraud where it is against equity that the property should be retained by the one who holds it.” Aetna Life Ins. Co. v. Weekes, 241 Ga. 169, 172 (1) (244 SE2d 46) (1978). See OCGA § 53-12-132 (a) (A constructive trust is “implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.”). Because material issues of fact remained as to whether the appellees, inconsistently with BPC’s and Benn’s rights and contrary to equity, exercised dominion over their property, summary judgment was not proper as to the claim for imposition of a constructive trust. See Gibbs v. Dodson, 229 Ga. App. 64, 69 (2) (492 SE2d 923) (1997) (trial court did not err in denying summary judgment on the appellee’s counterclaim for a constructive trust on an insurance policy, which claim would have become viable upon appellant’s assertion of paramount right to the policy, “thereby engaging in an act of dominion hostile to [the appellee’s] ownership rights and contrary to equity”).

3. BPC and Benn also contend that the trial court erred in granting the appellees’ motion for summary judgment on their claim for punitive damages. We agree. Punitive damages may be awarded in an action for conversion, which is an intentional tort, “provided one or more of the criteria in OCGA § 51-12-5.1 (b) are met.” Gateway Bank & Trust v. Timms, 259 Ga. App. at 301 (3). See Taylor v. Powertel, Inc., 250 Ga. App. 356, 357 (1) (b) (551 SE2d 765) (2001) (finding that actions for trover or for conversion are intentional torts). Punitive damages are available “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). Viewing the evidence in a light most favorable to BPC and Benn, a trier of fact could find that the appellees became aware in pursuit of their claims against Blacknights that King Properties was in possession of property that did not belong to Blacknights and that King Properties was not entitled to retain under its agreement with Blacknights. A trier of fact could also conclude that the appellees were thereafter unwilling to return that property to BPC and Benn, its true owners, upon their demand, thereby showing “that entire want of care which would raise the presumption of conscious indifference to consequences.” Id. See Gateway Bank & Trust v. Timms, 259 Ga. App. at 301 (3) (where in trover action bank did not hold title to seized trailer, but held a UCC financing statement against property of the true owner’s son, and made no effort to identify the son as the owner of the trailer within a year of its seizure, and, further, the bank’s loan officer responded to the owner’s request for the return of her trailer by merely referring her to the bank’s counsel, there existed some clear and convincing evidence authorizing the jury’s award of punitive damages).

4. BPC and Benn further maintain that the trial court erred in granting summary judgment to the appellees on BPC’s and Benn’s claim for attorney fees on account of the appellees’ bad faith. See OCGA § 13-6-11. “Bad faith warranting an award of attorney fees must arise out of the transaction on which the cause of action is predicated, and it may be found in how the defendant acted in his dealing with the plaintiff.” (Footnote omitted.) Foxchase, LLLP v. Cliatt, 254 Ga. App. 239, 240 (2) (562 SE2d 221) (2002). As we noted in Division 3, supra, conversion is considered an intentional tort. And “[e]very intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees.” (Citation and punctuation omitted.) Bunch v. Byington, 292 Ga. App. 497, 505 (5) (664 SE2d 842) (2008). See Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (2) (232 SE2d 62) (1977) (accord). The same evidence that, if viewed in a light most favorable to BPC and Benn, would authorize an award of punitive damages would also authorize an award of attorney fees. See id. (same testimony that authorized jury’s award of punitive damages also provided authorization for jury to find that appellants acted in bad faith). Therefore, the trial court also erred in granting summary judgment to the appellees on BPC’s and Benn’s claim for attorney fees.

5. BPC and Benn also maintain that the trial court erred in denying their motion to compel discovery as moot. The record shows that BPC and Benn moved to compel the appellees to allow them access to the premises for purposes of inspecting their personal property. The trial court found the motion to compel to be moot because the appellees were entitled to summary judgment on all of BPC’s and Benn’s claims. As we found supra, however, the trial court erred in granting summary judgment on BPC’s and Benn’s claim for conversion, among other claims.

Although the motion to compel was filed after the conclusion of the six-month discovery period, it was not necessarily too late to be considered, as the appellees contend. See Fisher v. Bd. of Commrs. of Douglas County, 200 Ga. App. 353, 353 (1) (408 SE2d 120) (1991) (“So long as discovery is promptly and diligently pursued by the moving party within the discovery period . . . , a motion to compel or for sanctions may be brought after the expiration of the discovery period.”). Nor do we find, as the appellees argue, that BPC and Benn waived this claim of error by failing to ask the trial court to continue or set aside its ruling on the summary judgment motion pending resolution of the motion to compel. See Mallard v. Forest Heights Water Works, 260 Ga. App. 750, 752 (2) (580 SE2d 602) (2003) (holding that appellant waived argument that the trial court erred by considering appellee’s summary judgment motion without first ruling on appellant’s motion to compel discovery because appellant never moved to continue the summary judgment ruling or otherwise object at the trial level). The authority relied upon by the appellees is distinguishable because BPC and Benn do not contend that the trial court erred in ruling on their motion for summary judgment before ruling on the motion to compel. Rather, because genuine issues of fact remain for the jury on BPC’s and Benn’s claim for conversion, the motion to compel was not moot and “may again be presented to the trial court for ruling.” Daniel v. Earle, 174 Ga. App. 649, 650 (2) (331 SE2d 19) (1985) (as the trial court determined the motion to compel to be moot in view of its grant of summary judgment to the appellee, but this court found that genuine issues of material fact remained for the jury, the appellant was entitled to pursue a ruling on his motion to compel).

6. Lastly, we consider BPC’s and Benn’s argument that the trial court erred in denying their cross-motion for summary judgment on the issue of the appellees’ liability on their conversion claim. Viewing the evidence in a light most favorable to the appellees for purposes of this claim of error, the appellees have pointed to evidence, including the lack of ongoing lease or rental payments, from which a trier of fact might find that neither BPC nor Benn overcame the presumption that property in possession of Blacknights was owned by Black-nights, and that the property was therefore lawfully in the possession of King Properties under its agreement with Blacknights. It follows that the trial court did not err in denying BPC’s and Benn’s cross-motion for summary judgment.

In summary, the trial court erred in granting summary judgment to the appellees on BPC’s and Benn’s claims for conversion, imposition of a constructive trust, punitive damages, and attorney fees. BPC’s and Benn’s motion to compel was not moot and may again be presented to the trial court for consideration. The trial court’s denial of BPC’s and Benn’s cross-motion for summary judgment is affirmed.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Decided March 23, 2016 —

Reconsiderations denied April 13, 2016.

Griffin B. Bell III, Daniel T. Seelos, for appellants.

Holmes Legal Group, Rena L. Holmes, for appellees.

       BPC and Benn also asserted claims for implied contract, unjust enrichment, constructive trust, punitive damages, and attorney fees. Appellees moved for summary judgment on all claims. BPC and Benn filed a cross-motion for summary judgment on the issue of liability as to their conversion claim. BPC and Benn also filed a motion to compel appellees to produce for inspection the pedestrian barricades, allegedly owned by BPC, and the sound and lighting equipment, allegedly owned by Benn, which, they contended, remained on the premises.

       The trial court did not expressly deny BPC’s and Benn’s cross-motion, but that motion’s denial was implicit in the trial court’s grant of summary judgment to appellees on all claims. See Georgian Art Lighting Designs v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510, n. 1 (439 SE2d 687) (1993).

       “The gist of [a trover] action is conversion.” Powers v. Wren, 198 Ga. 316, 319 (1) (31 SE2d 713) (1944).

       Compare OCGA § 44-14-341 (“Landlords shall... have a general lien on the property of the debtor which is subject to levy and sale, which general lien shall date from the time of the levy of a distress warrant to enforce the general lien.”).

       Although the lease attached to King Properties’ motion for summary judgment was not expressly authenticated, we agree with King Properties that the trial court was authorized to consider the agreement to be authenticated by the circumstantial evidence, which included the production of the lease during discovery and the appearance and contents of the document. See Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 8 (679 SE2d 57) (2009) (documents that contained very specific information and signatures on behalf of buyer and seller were sufficient circumstantial evidence of authentication); Salinas v. Skelton, 249 Ga. App. 217, 220-221 (1) (547 SE2d 289) (2001) (party’s production of document during discovery is circumstantial evidence of authentication).

       The lease provided that “[ujpon termination of this lease ... , or upon default by Lessee..., Lessor may enter the leased premises and remove any and all personal property of Lessee and may retain possession of such personal property until all charges of any kind, including rent, storage, or damages, shall be paid in full.”

       The appellees rely on Domestic Sewing Machine Co. v. Watters, 50 Ga. 573, 575 (1874), which found that the “true limit” of the lien of a livery man or innkeeper is that it “is only good against the true owner or prior incumbrancer for the expense of feeding or taking care of that particular article.”

       The appellees also argue that BPC and Benn failed to preserve their argument on appeal that, under the Uniform Commercial Code — Leases, OCGA § 11-2A-101 et seq., the creditor of the lessee of goods takes subject to that lease. We agree with appellees that BPC and Benn failed to raise the argument below, and we do not address it here.

       “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” OCGA § 13-6-11. The statute “applies to both contract and tort cases.” Lowery v. Roper, 293 Ga. App. 243, 244, n. 2 (666 SE2d 710) (2008).