author: BLACKBURN, Senior Appellate Judge.

text:
    A10A2148.
    BELL v. THE STATE.
    (703 SE2d 680)
   BLACKBURN, Senior Appellate Judge.

Following a jury trial, Derico Kenneth Bell was convicted of a single count of burglary. He now appeals from the denial of his new trial motion, asserting that the trial court erred in: (1) denying his Batson motion challenging the State’s use of its peremptory jury strikes; and (2) denying his motion for a directed verdict. Bell also asserts an ineffective assistance of counsel claim, based on trial counsel’s failure to object to the admission of evidence regarding the victims’ pretrial identification of Bell, which he claims was tainted. Discerning no error, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. State, the record shows that on December 23, 2005, two men broke into a house and stole a number of items, including jewelry, a video gaming system, video and computer games, and DVDs. At the time of the burglary, the homeowner’s son and grandson, ages eleven and nine, were in the residence. The boys retreated to an upstairs bedroom where, hidden from view, they observed the intruders. When the burglars left the bedroom where the boys were hiding, the older boy telephoned his mother at work. The mother contacted police and then drove immediately to her house. As the mother entered through the front of the house, the burglars exited out the back.

The boys gave police a description of the burglars and a short time later a patrol officer noticed Bell and his co-defendant, who matched the description of the perpetrators, walking by a car wash a short distance from the burgled home. At the time the officer first saw the men, Bell’s co-defendant was carrying a backpack. When he saw the police, however, the co-defendant walked behind the car wash and returned without the backpack. The patrol officer later recovered the backpack, and it was subsequently identified as having been stolen during the burglary.

Shortly thereafter, police arrested both Bell and his co-defendant. They transported the two men back to the burgled home, where they had them stand in front of the house. The two boys viewed the men through a window, from inside the house. The boys each identified Bell and his co-defendant as the men who had broken into their home. Additionally, the detective in charge of the case took individual pictures of both Bell and his co-defendant on a digital camera. He then showed the pictures to the boys, who again identified the men as the perpetrators. At trial, the older boy once more identified Bell and his co-defendant as the burglars.

When they went to Bell’s residence, police discovered a plastic bag on the front porch that contained a number of items stolen during the burglary. They recovered additional items from the back porch of an unoccupied residence located immediately behind the burgled home.

After the jury was selected, defense counsel made a Batson motion, based on the fact that eight of the State’s nine peremptory strikes were used against black members of the jury pool. In response to that motion, the State gave the reasons for its peremptory strikes. The prosecutor explained that strike one resulted from the fact that the juror did not appear to understand one or more questions the prosecutor asked, and the State was therefore concerned about the juror’s ability to understand the evidence. Strike two was based on the fact that the juror worked in the healthcare industry and had a disabled husband. Because the State believed Bell might produce some evidence of his own disabilities, the prosecutor felt this juror might have “some conflicts.” The State’s third strike was based on the juror’s employment as a supervisor at the local Air Force base and because the prosecutor perceived him as being hostile toward the State. With respect to the juror’s employment, the prosecutor explained that it was his understanding that the Air Force base was a technically-oriented “logistics facility,” and as a rule, he tried to exclude technically-oriented people from his juries because they often “try to over think things.” The State exercised its fourth and ninth strikes against a white and black juror respectively, because of their youth and lack of “life experience.” Strikes five and eight were based on the fact that the prosecutor had a hard time understanding responses given by each of those jurors, and he thought that indicated “either an inability to articulate [their position] or an inability to reason.” The State based its sixth strike on the fact that the juror stated she had negative experiences with law enforcement, that she had a close friend or family member who had been prosecuted, and that she had something weighing heavily on her mind that rendered her unable to serve freely as a juror. Finally, the State exercised its seventh strike against a juror who had either been prosecuted himself or had a close family member or close friend who had been prosecuted.

The trial court denied the Batson motion, finding that the State had articulated a race-neutral reason for each of its strikes and that Bell had failed to show that those reasons were pretextual.

At the close of the State’s evidence, Bell moved for a directed verdict. In support of this motion, Bell argued that the State’s case relied too heavily on the victims’ pretrial identification of him, which defense counsel claimed was tainted. The trial court denied the motion, finding there was sufficient evidence to send the case to the jury, who could judge the credibility of the victims’ identification of Bell.

After his conviction, Bell filed a motion for a new trial. Following a hearing, the trial court entered an order denying that motion. Bell now appeals from that order.

1. We first address Bell’s claim that the trial court erred in denying his Batson motion. In evaluating a Batson challenge to the State’s use of its peremptory strikes, a trial court applies a three-part test:

First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Second, the burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. Third, after hearing from the opponent of the strike and considering the totality of the circumstances, the trial court then decides whether the opponent of the strike carried his burden of proving that discriminatory intent in fact motivated the strike.

(Punctuation omitted.) Duffie v. State. With respect to the third step, “[t]he opponent of the strikes may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck or that the proponent’s race-neutral reason for a strike is so implausible or fantastic that it renders the explanation pretextual.” (Punctuation omitted.) Barnes v. State.

“In reviewing the trial court’s disposition of the motion, we must bear in mind that . . . [t]he trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province.” (Punctuation omitted.) Jackson v. State. Accordingly, “[t]he trial court’s findings as to whether the opponent of the strike has met the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous.” (Punctuation omitted.) Rakestrau v. State.

Here, “the threshold issue of whether [Bell] established a prima facie case of discrimination is moot because the State offered purportedly race-neutral reasons for its strikes and the trial court ruled on the ultimate issue of purposeful discrimination.” (Punctuation omitted.) Duffie, supra, 301 Ga. App. at 611 (3). Moreover, Bell does not challenge the trial court’s finding that the reasons offered by the State for each of its peremptory strikes were, in fact, race-neutral. Thus, the question before us is whether the trial court erred in finding that Bell had failed to carry “his burden of showing the proffered reasons were merely designed to ‘cover up’ purposeful racial discrimination.” (Punctuation omitted.) Byron v. State.

Bell offers two arguments in support of his claim that the State’s proffered reasons for its peremptory strikes were pretextual. First, Bell makes a “disproportionate impact” argument, asserting that “although the [venire] panel was about equal in terms of race, two-thirds of the actual jury were white.” As a threshold matter, we note that even if Bell’s assertion regarding the makeup of the venire panel was correct, evidence of disproportionate impact, standing alone, would be insufficient to establish that the State acted with discriminatory intent. Livingston v. State; Duffie, supra, 301 Ga. App. at 612 (3).

More importantly, however, Bell’s argument on this issue misrepresents the facts. As Bell’s brief acknowledges, the record shows that the venire panel consisted of 44 white members and 21 black members. In other words, the panel was approximately two-thirds white and one-third black. The actual jury was nearly identical in composition, being made up of eight white members, four black members, and one alternate, who was also black. Thus, the State’s use of its peremptory strikes did not have a racially-disproportionate impact on the composition of the jury.

Bell next argues that the allegedly race-neutral reasons the State gave for its strikes were obviously pretextual, because they either applied equally to white jurors who were seated or were simply implausible. Specifically, Bell asserts that the State impermissibly exercised its sixth and seventh strikes against black jurors who had a close friend or family member who had been prosecuted, because it did not strike a white juror whose father had been prosecuted by the IRS. Again, however, this argument misrepresents the record. The white juror did not say that his father had been prosecuted; rather, he said that his father “had some problems with the IRS.” There is a marked difference between having a dispute with the IRS and being prosecuted for a crime. This difference was “sufficient to differentiate the (seated juror) from the one[s] who [were] struck and to support the trial court’s conclusion that (the seated juror was) not so similar to the one[s] who [were] struck that the force of the facially race-neutral explanation[s] was diminished.” (Punctuation omitted.) Bryant v. State.

Bell also claims that although the State allegedly exercised its ninth peremptory strike based on the juror’s youth, it did not strike a white juror of similar age. The trial court, however, rejected this argument, stating “[q]uite frankly, [the white juror] did not strike me as young in the sense of being a member of the same generation as [the black juror].” On appeal, Bell points to no evidence of record that would refute the trial court’s conclusion. Moreover, the record shows that the State did strike a white juror, who appeared to be close in age to the black juror, based on his youth.

Bell further argues that the basis for the State’s second strike, which was that the juror had a disabled husband, was not credible. Defense counsel argued below that “there [had] been no proffer by [Bell] of any defense of mental incapacity or anything like that in this case.” Again, however, this assertion is refuted by the record, which shows that following a motion by Bell’s trial counsel, the trial court ordered Bell to undergo a psychiatric evaluation. Although the results of that evaluation are not in the record, Bell was originally found incompetent to stand trial and ordered to undergo treatment at a mental health facility. Additionally, Bell’s counsel filed a pretrial notice of intent to raise the issue of insanity, mental incompetence, or mental retardation. This evidence was sufficient to support the trial court’s conclusion that the reason given for the State’s second strike was not pretextual.

Bell also takes issue with the reason proffered for the State’s third strike, of the juror who worked as a supervisor at the local Air Force base. Bell argues that there was no evidence that the juror’s job was, in fact, technical in nature. The prosecutor, however, could logically assume that one who worked as a supervisor at an Air Force base was a “technically oriented person,” and such an assumption would be race-neutral. See Thomas v. State (an explanation is race-neutral where it is “not based on a characteristic or stereotype peculiar to any race,” but instead is “based on the personal experience of the venireman in question”). And, there is no evidence in the record to rebut or even cast doubt on such an assumption — i.e., there is no evidence which would indicate that the juror’s job was not technical in nature. Accordingly, we cannot say that the State’s reason for striking this juror was “so implausible or fantastic that it render[ed] the explanation pretextual.” (Punctuation omitted.) Barnes, supra, 269 Ga. at 350 (6).

Moreover, Bell’s argument ignores the fact that the prosecutor also struck this juror because of his perceived hostility toward the State. It is well established that perceived hostility toward the State constitutes “a fair basis for exercising a peremptory strike.” Redding v. State. See also Duffie, supra, 301 Ga. App. at 611-612 (3).

Bell also challenged the State’s fifth and eighth strikes, which were based on the fact that the prosecutor had difficulty understanding the jurors in question, and was therefore concerned about their ability to articulate their positions or perhaps to reason. With respect to these jurors, Bell first argues that the State’s assertion that “it could not understand certain ‘ethnic’ manners of speech [is] racially suspect on its face.” There is, however, no evidence in the record that the prosecution could not understand these jurors because of their “manner of speech,” ethnic or otherwise. Indeed, Bell’s argument in this regard appears to be based on the same presumptions and/or stereotypes that Batson is designed to protect against.

Bell further argues that one of the white jurors seated also “made statements consistent with a lack of understanding.” Bell, however, points to no record cites that support his argument. “[T]he trial court decided [this] issue of fact in favor of the State, and under our deferential standard of review, [in the absence of evidence to the contrary,] we cannot say the trial court’s determination was clearly erroneous.” (Punctuation omitted.) Byron, supra, 229 Ga. App. at 798 (5).

2. Nor do we find any merit in Bell’s claim that the trial court erred in denying his motion for a directed verdict. That motion was based on the argument that the State’s case relied too heavily on the evidence concerning the victims’ pretrial identification of the burglars. Bell asserted that the identifications were tainted, and therefore lacked credibility. As the trial court noted in denying Bell’s new trial motion, however, the issue on a motion for a directed verdict is not the credibility or the admissibility of the evidence. Rather, it is whether, based on the evidence presented, “any rational trier of fact could [find] the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Crawford v. State. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case,” the denial of a motion for a directed verdict will be upheld. (Punctuation omitted.) Id. See also Overton v. State (“[a] motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law”).

At the time trial counsel moved for the directed verdict below, the allegedly tainted identification evidence had been admitted, without objection. Accordingly, in deciding the motion for a directed verdict, “the trial court properly considered [that] evidence, and did not err by denying [the] motion. . . .” (Punctuation omitted.) Overton, supra, 270 Ga. App. at 289 (3) (denial of motion for directed verdict proper where defendant claimed that the State’s case relied on inadmissible evidence, but such evidence had been admitted without objection).

Furthermore, even in the absence of the testimony concerning the victims’ pretrial identification of Bell and his co-defendant, there was sufficient evidence to support Bell’s conviction. That evidence included the fact that Bell and his co-defendant matched the general description of the burglars that the victims gave to police; that they were seen walking a short distance from the scene, not long after the burglary occurred; that at the time police first saw them, Bell’s co-defendant was carrying a backpack stolen during the break-in; that when he saw police, the co-defendant immediately discarded the backpack; and that a number of items stolen during the burglary were recovered from the front porch of Bell’s residence.

Decided October 26, 2010

Reconsideration denied November 18, 2010.

Bernadette C. Crucilla, for appellant.

Howard Z. Simms, District Attorney, Jonathan L. Adams, Assistant District Attorney, for appellee.

3. Although Bell raised an ineffective assistance of counsel claim in his new trial motion, he did not allege that counsel was ineffective for failure to object to the admission of the pretrial identification evidence. On appeal, however, this ground represents the sole basis for Bell’s ineffective assistance claim. “Where new counsel raises the issue of trial counsel’s ineffectiveness on motion for new trial, any ineffective assistance of trial counsel claims not raised at that time are waived.” McGlocklin v. State. “Such claims unasserted at the trial level are procedurally barred,” and “[o]nce a claim is procedurally barred, there is nothing for this Court to review.” (Punctuation omitted.) Wilson v. State. Because Bell has waived this particular ineffective assistance claim, we do not address the same.

Judgment affirmed.

Barnes, P. J., and Senior Appellate Judge William LeRoy McMurray, Jr., concur.

       OCGA § 16-7-1 (a).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Jackson v. State, 301 Ga. App. 863, 863-864 (690 SE2d 195) (2010).

       The younger boy did not testify at trial.

        Duffie v. State, 301 Ga. App. 607, 610-611 (3) (688 SE2d 389) (2009).

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

        Jackson v. State, 220 Ga. App. 98, 98-99 (469 SE2d 264) (1996).

        Rakestrau v. State, 278 Ga. 872, 874 (3) (608 SE2d 216) (2005).

         Byron v. State, 229 Ga. App. 795, 798 (5) (495 SE2d 123) (1997).

        Livingston v. State, 271 Ga. 714, 718 (2) (524 SE2d 222) (1999).

        Bryant v. State, 304 Ga. App. 456, 464-465 (6) (696 SE2d 439) (2010).

        Thomas v. State, 274 Ga. 156, 161 (5) (549 SE2d 359) (2001).

        Redding v. State, 239 Ga. App. 718, 720 (2) (521 SE2d 840) (1999).

        Crawford v. State, 301 Ga. App. 633, 635 (1) (688 SE2d 409) (2009).

        Overton v. State, 270 Ga. App. 285, 289 (3) (606 SE2d 306) (2004).

        McGlocklin v. State, 292 Ga. App. 162, 163 (664 SE2d 552) (2008).

        Wilson v. State, 286 Ga. 141, 144 (4) (686 SE2d 104) (2009).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A10A1192.
    SCOTT v. WAITS et al.
    (703 SE2d 419)
   Doyle, Judge.

Lillian and Charles Waits sued Donnie D. Scott, the school resource officer for Woodland High School in Bartow County, after Lillian was involved in an accident on school property. Scott filed a motion for summary judgment, and the trial court denied the motion. Scott appeals, arguing that the trial court erred by concluding that he was not shielded from liability in his individual capacity by the doctrine of official immunity. We agree and reverse.

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.

So viewed, the record shows that Lillian was leaving the campus of Woodland High School in Bartow County after dropping her son off at the field house during fall break when she drove into a metal, free-swinging gate. The gate struck the hood of her SUV and penetrated her vehicle, exiting through the rear driver’s side window and injuring her. Lillian and her husband sued Scott, alleging that he had a duty to secure the gate, to report the gate’s broken latch to the school principal or other authorities, and to have the gate equipped with a properly functioning latch. Scott moved for summary judgment, arguing that he was entitled to official immunity because he had no ministerial duty related to the inspection, maintenance, and repair of the pole gate. The trial court denied summary judgment to Scott, concluding that there was evidence that Scott

is the School Resource Officer, responsible for inspecting the school premises to [ejnsure public safety. Removing obstructions from a roadway is a basic, fundamental requirement for public safety and would have to be considered a ministerial duty. There is evidence in the record from which it could be concluded that Defendant Scott failed in his duty to keep the roadway clear of obstructions.

Following the trial court’s order, Scott filed an application for interlocutory appeal, which we granted.

The metal gate at issue consisted of two separate pieces that swung out over the roadway and were secured in the middle with a padlock in order to close off the road. When opened, the gates swung back to each side of the road and over a small post secured with a latching device. Although previously the gates were locked and unlocked on a regular basis, the gates were left in the open position throughout the fall of 2007.

Scott testified that he noticed that the gate was dislodged from the latching post on fewer than five occasions, and he secured it on the post each time. Scott, who was not on duty the day of the incident, never noticed that the latch was not functioning at any time before then. Two school coaches deposed that the gate had become dislodged in the past, swinging slightly into the roadway. Neither coach reported any information about the gate to anyone, including Scott or Dr. Sabin. One of the coaches testified that he observed the gate swinging into the roadway three times in the two weeks preceding the accident, and during that period, the gate could not be secured because the locking mechanism was bent.

At his deposition, Scott was asked whether “it is the duty of the school police officer to secure the gate if it’s found swinging,” and he replied, “If I see it, yes, sir, I will.” Scott also testified that he checked the gate every day to see whether it was latched open. When asked whether it was his “standard policy and procedure” to do so, Scott replied, “That’s just something I do just to make sure incidents don’t happen.” Scott was also asked about what conversations he had with the principal, Dr. Sabin, regarding the gates “at all at any time,” and he responded, “Just to check them to make sure they are latched back.”

Dr. Sabin was also deposed, and he agreed that “it is the policy and practice of Woodland High School” that school resource officers would secure any gate that they observed “swinging.” However, Dr. Sabin further testified as follows:

Q: What steps had you or anyone under your supervision at Woodland High School taken on or prior to . . . October the 11th ... of 2007 to make sure that this policy or practice of having the gate secured actually took place?
A: Well, I just want to be clear about that. We don’t have a written policy about securing gates back, but we have a practice of doing that because each of the gates has a mechanism to secure the gate back. ... I don’t know that we’ve had any type of practice of securing gates or if we have any — you know, I don’t know of any. I don’t know of any steps that we’ve taken to [e]nsure that gates are secured back.

Dr. Sabin further explained that the responsibility for opening the gates varied, and that “it would be incorrect for me to tell you that I have a person that’s responsible to go around and secure all the gates every day, and I want to be clear about that.”

The assistant principal for the school was also deposed, and he explained that in 2007, the general duties of the school resource officer were “the safety and protection of the faculty, staff!,] and students of Woodland High School.” According to the assistant principal, the school resource officer had an obligation to report any unsafe condition or maintenance issue that he observed on the school campus.

The Waitses also offered the affidavit of Susie Cole, who served as a school resource officer for the Bartow County School System, was then appointed interim director of safety and security for the school system from 1996 to 1998, and served as the assistant director of safety and security for the system from 1998 through 2002; Cole’s office was located at Woodland High School from 1999 through 2002. Cole deposed that “[o]ne of the primary duties of a resource officer at a school is to [ejnsure the safety of the students, faculty, parents, and visiting public.” Cole also testified:

In my opinion, it is the duty of the school resource officer to check the gates on the school campus on at least a daily basis, to [e]nsure that the gates are properly secured in either the open or closed position, regarding then school policy prescribing whether such gate should be open or closed. I understand from Officer Scott’s testimony that he swears he checked all gates on [a] daily basis. ... It is my opinion that it is the duty of the school resource officer immediately to report any broken or defective gate latching mechanism, which would cause a gate to be unable to be safely secured in the open position. The Bartow County School System had standard procedure so that resource officers and others could fill out a maintenance form and submit any maintenance issue for repair. Part of the duties of the resource officer was to fill out such maintenance forms, particularly regarding any issue involving officer safety or security. Donnie Scott had a duty to immediately report or repair a safety and security issue such as the defective latching mechanism on the gate upon which Ms. Waits was injured. . . . It is my opinion based on my experience . . . that Donnie Scott . . . knew or should have known that the gate in question swinging freely could constitute a dangerous condition for drivers ascending the road from the field house. Consequently, he had a duty to both report the broken latch gate for repair . . . and a duty to secure the gate safely in the open position rather than to allow it to swing freely.

On appeal, Scott argues that the trial court erred by denying summary judgment in his favor based on the doctrine of official immunity because the acts of inspecting the gate, and then reporting any damage or repairing it were discretionary, not ministerial. The doctrine of official immunity, also known as qualified immunity, provides “that although a public officer or employee may be held personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.” Here, the Waitses do not allege that Scott acted with malice or intent to injure. Therefore, Scott is immune from liability if his alleged negligence involved discretionary as opposed to ministerial acts.

“Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.”

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 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. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite[,] and certain as merely to require the execution of a relatively simple, specific duty.

Here, the Waitses claim that Scott was negligent in failing to inspect the gates and/or to report or repair any problems with the gate or its locking mechanism. Construing the evidence in favor of the Waitses as nonmovants, there is no evidence of any formal policy or procedure that created a ministerial duty on Scott’s part to inspect the gates. The school principal was unaware of any policy or practice that required Scott to inspect the gates. And although Scott admitted at deposition that he checked the gates regularly, he did not testify that he was required to do so. The testimony of Cole, the former school resource officer, that “in her opinion” Scott was required to make daily inspections of the gate, is insufficient to establish that Scott’s employer informed him of “clear, definite[,] and certain” instructions or procedure that required him to conduct the purportedly “relatively simple, specific” duty to inspect the gates. Under these circumstances, Scott’s duty, if any, to inspect the gates was discretionary.

Decided November 18, 2010

Harbin, Hartley & Hawkins, Phillip L. Hartley, Martha M. Pearson, for appellant.

The Waitses also claim that Scott had a duty to repair and/or report any defective or broken gate and/or locking mechanism. We have previously held that absent a specific and clear procedure or method for dealing with hazards on school property, the methods used to eliminate or avoid a hazard “are left to the discretion of the school district employees.” But even assuming that Scott had such a duty and that it was ministerial, there is no evidence that Scott, who was not even on duty the date of the incident, had knowledge of any such defect or problem in this case prior to Lillian’s accident. Although a school coach testified that he observed the broken gate swinging into the roadway several times in the three weeks before the accident and that the gate could not be properly secured because the latch was not operable, the coach never notified Scott or anyone else about the problem.

Under these circumstances, in the absence of any evidence that Scott breached a ministerial duty to inspect the gates or to repair or report a broken gate, the trial court erred by denying Scott’s motion for summary judgment.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

Akin & Tate, William M. Akin, for appellees.

       (Punctuation omitted.) Ga. Dept. of Human Resources v. Bulbalia, 303 Ga. App. 659, 660 (694 SE2d 115) (2010).

       The Waitses also named the school principal, Paul Sabin, and two unnamed individuals as defendants. The Waitses ultimately conceded that Dr. Sabin was entitled to official immunity, and the trial court entered summary judgment in favor of Dr. Sabin and the two individuals. Scott is the only remaining defendant and the sole defendant on appeal.

       Dr. Sabin agreed that “a policy is written, and a practice is something you pursue just by your day-to-day activities, rule of thumb!.]”

       (Emphasis supplied.)

       (Punctuation omitted.) Kennedy v. Mathis, 297 Ga. App. 295, 297 (1) (676 SE2d 746) (2009).

        Woodard v. Laurens County, 265 Ga. 404, 407 (2) (456 SE2d 581) (1995).

       (Punctuation omitted; emphasis supplied.) Kennedy, 297 Ga. App. at 297 (1).

        Kennedy, 297 Ga. App. at 298-299 (1) (county road superintendent was entitled to official immunity in the absence of any formal or written policy setting forth “standards or guidelines dictating the manner, method, and time limit for completing the task”). See Banks v. Happoldt, 271 Ga. App. 146, 151 (2) (608 SE2d 741) (2004) (road superintendent’s duty to widen and repair road was discretionary because there was no mandated county policy directing his actions); Brown v. Taylor, 266 Ga. App. 176, 177 (596 SE2d 403) (2004) (in the absence of a formal or written policy regarding road maintenance, the acts of the county employees upon which liability was premised were discretionary).

        Hemak v. Houston County School Dist., 220 Ga. App. 110, 114 (469 SE2d 679) (1996).

       See, e.g., Lincoln County v. Edmond, 231 Ga. App. 871, 874 (2) (501 SE2d 38) (1998) (road superintendent’s duty to remove downed trees from roadway was ministerial); Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982) (county employee’s duty to repair and replace stop signs when directed to do so was ministerial).

       See Brown, 266 Ga. App. at 177 (summary judgment in favor of the county employee defendants was proper because there was no evidence that the employees were aware of any allegedly defective road condition). Compare Lincoln County, 231 Ga. App. at 874-875 (2) (affirming the denial of summary judgment to road superintendent because he failed to take action to remove a downed tree blocking a road for approximately two hours after being informed about the hazardous condition).


text:
    A10A1210.
    RIVERS v. H. S. BEAUTY QUEEN, INC.
    (703 SE2d 416)
   Doyle, Judge.

After suffering burns to her face and chest from a ceramic, scented-oil burner, Stacy Rivers filed the instant action, alleging claims for strict products liability, negligence, and breach of warranties of merchantability and fitness for a particular purpose against H. S. Beauty Queen, Inc. (“Beauty Queen”), where she purchased the item. Beauty Queen filed a motion for summary judgment, which the trial court granted as to all of Rivers’s claims. Rivers appeals, arguing that there were genuine issues of material fact as to her claims and that the trial court therefore erred by granting the motion for summary judgment. We disagree and affirm, for the reasons that follow.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions[,] and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed in this light, the record establishes that Rivers shopped at Beauty Queen for scented candles for her home. She was assisted at the store by one of the employees, whom she alleges dissuaded her from buying the candles, directing her instead to ceramic, scented-oil burners. Rivers deposed that she selected a burner in the shape of an elephant, and because she was unaware of how to use the device, the employee explained to her that she would need to select an oil, purchase tealight candles, and place the candle below an oil reservoir so that the flame would heat the oil when lit. Rivers further deposed that the burner was not sold with instructions; however, she relied on the instructions on the scented oil in order to determine the amount of oil to use in the burner.

A few days later, Rivers used the device for the first time, placing it at face height on her mantel, but instead of a pleasing aroma, Rivers deposed that an unpleasant smell emanated from the burner, causing her to extinguish the flame by blowing out the candle. Rivers deposed that as she blew out the flame, it became very large, and “[i]t exploded in [her] face.” Rivers was transported to the emergency room and was treated for second-degree burns on her face, neck, and chest, as well as injuries to her eyes, one of which was swollen shut after the incident.

Rivers filed the instant action against Beauty Queen, but did not join the manufacturers of any of the three products (the scented oil, the candle, or the ceramic burner) involved in the incident. Upon its motion, the trial court granted summary judgment to Beauty Queen on all counts alleged in the complaint. Rivers now appeals the grant as to each count except the allegation of strict products liability.

1. Rivers contends that the trial court erred by granting summary judgment on her claim that Beauty Queen breached an implied warranty of merchantability.

A product is defective and breaches the implied warranty of merchantability when it is not fit for the ordinary purposes for which such goods are used; such purpose is determined by the manufacturer and not the user. In addition, as a separate element, a claim of breach of implied warranty requires proof that the goods are defective at the time they were sold. To succeed on its motion, [Beauty Queen] was required to show the absence of evidence as to at least one element of the breach of implied warranty claim.

The trial court determined that Rivers’s claim for breach of implied warranty of merchantability failed because Rivers’s complaint specifically admitted that the ceramic burner was not defective, which resulted in a failure of proof of one of the essential elements of the claim.

“As warranty liability under the Code is predicated upon a sale, it follows that the defect or condition of the goods relied upon to establish that there has been a breach of warranty must have existed at the time of the sale.”

The trial court’s conclusion that the ceramic burner was not defective for its ordinary purpose at the time of sale is supported by the evidence of record. While it appears that the trial court misconstrued the admission contained in Rivers’s complaint (while inart-fully worded, Rivers contended that the product was not defective as manufactured, but the display and packaging prepared by Beauty Queen rendered it defective), the grant of summary judgment to Beauty Queen was still correct because Rivers has not presented any evidence of record that some defect existed in the item such that it was inappropriate to use for its ordinary purpose as a ceramic oil burner other than the mere existence of her injury.

On appeal, Rivers contends that the item was not defective for its ordinary purpose as a ceramic decorative item, but became defective as sold because Beauty Queen inappropriately advertised the product as a scented-oil burner. Beauty Queen’s owners and employees, however, deposed that this item and others like it were marketed by the manufacturer as oil burners and were displayed as such at various trade shows attended by Beauty Queen personnel. Although a Beauty Queen employee deposed that customers could choose not to use the item as an oil burner, Rivers presented no affirmative proof to counter the employees’ testimony that the item was marketed and distributed to Beauty Queen as an oil burner. Accordingly, the trial court correctly granted summary judgment to Beauty Queen as to this claim.

2. Next, Rivers contends that the trial court erred by granting summary judgment on her claim that Beauty Queen breached its duty of implied warranty of fitness for a particular purpose.

If “the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose.” Comment 2 of the Uniform Commercial Code § 2-315 explains that

[a] “particular purpose” differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains.

Here, the evidence undisputably shows that Rivers utilized the ceramic burner for the ordinary purpose for which the item was intended, i.e., using the receptacle on the item to hold scented oil over a burning candle, causing the scent to diffuse throughout her home. Accordingly, because there is no evidence that Beauty Queen’s employees knew that Rivers intended to use the product in any way other than its ordinary purpose, burning scented oil, the trial court correctly granted summary judgment on this claim.

3. Finally, Rivers contends that the trial court erred by granting summary judgment on her claim of negligent failure to warn of the danger of using the oil burner. Rivers explains that because the oil burner was not packaged with instructions or warnings from the manufacturer, Beauty Queen had a duty to warn her of the foreseeable danger of being burned by heated oil when using the product.

While it is normally true that a seller has a duty to warn a user of a foreseeable danger of a product, this Court has held that a seller has no duty to communicate to a user “a danger already clearly listed on the product itself.” In this case, the oil Rivers purchased to use in the oil burner already clearly warned users not to allow the oil to contact open flame, the danger from which Rivers suffered injury. Rivers admitted that she read the oil bottle’s instructions in order to determine the appropriate amount of oil to use. Moreover, the danger of receiving a burn from the open flame of a candle is an obvious danger for which there is no duty to warn placed upon a seller. Accordingly, the trial court correctly granted summary judgment to Beauty Queen on this claim.

Decided November 18, 2010.

Reynolds, Horne & Survant, Timothy J. Boyd, Mary-Dallas J. Roper, for appellant.

Hawkins, Parnell, Thackston & Young, Wayne W. Dempsey, Jr., Michael J. Goldman, Brian W. Sprinkle, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (406 SE2d 474) (1991).

       (Citations and punctuation omitted.) Knight v. American Suzuki Motor Corp., 272 Ga. App. 319, 325 (2) (612 SE2d 546) (2005). See also OCGA § 11-2-314.

       (Punctuation omitted.) Jones v. Marcus, 217 Ga. App. 372, 373 (1) (457 SE2d 271) (1995).

       See, e.g., Jenkins v. Gen. Motors Corp., 240 Ga. App. 636, 637 (2) (524 SE2d 324) (1999) (evidence of accident, without more, does not establish evidence of negligence). Compare with Jones, 217 Ga. App. at 373 (2) (expert testimony regarding defect in re-treaded tire sufficient to create a factual question as to breach of an implied warranty of merchantability).

       Compare with Jones, 217 Ga. App. at 373 (2).

       OCGA § 11-2-315.

       See Jones, 217 Ga. App. at 373-374 (3).

        Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 355 (1) (498 SE2d 583) (1998).

       See White v. Ga. Power Co., 265 Ga. App. 664, 666 (1) (595 SE2d 353) (2004) (“The danger from fire or water is one that even young children may be said to apprehend.”) (punctuation omitted).


author: PHIPPS, Presiding Judge.

text:
    A10A0955.
    STEELE v. THE STATE.
    (703 SE2d 5)
   PHIPPS, Presiding Judge.

After a jury trial, Perry Lee Steele was convicted of driving under the influence to the extent it was less safe for him to do so. He argues on appeal that the court erred by admitting similar transaction evidence. We disagree, and accordingly we affirm.

A law enforcement officer testified that on the evening of September 20, 2008, he observed Steele drive a vehicle into a gas station parking lot, over a curb, and onto a sidewalk, near some pedestrians and “within inches of hitting a building.” Steele “nearly stumbled” and “had to use the vehicle for support” as he got out of the vehicle. When the officer approached Steele, he detected a strong odor of an alcoholic beverage. Steele slurred his speech and mumbled as he spoke to the officer, he was unsteady on his feet, and his eyes were bloodshot and glassy. He admitted to having consumed alcohol earlier that day. Steele exhibited six out of a possible six clues of impairment on the horizontal gaze nystagmus field sobriety test. He declined to perform any other field sobriety tests, citing a leg injury, and he did not consent to a state-administered breath test. The officer, based upon his training, experience and observations of Steele, believed that Steele was under the influence of alcohol to the extent that it was less safe for him to drive.

The state introduced similar transaction evidence through a law enforcement officer, who testified that in August 2007 he observed Steele asleep behind the wheel of a vehicle in a parking lot at approximately 2:30 in the morning. When the officer turned on his patrol car’s blue lights and approached Steele’s vehicle on foot, Steele roused and quickly pulled off onto the adjacent road. The officer pursued Steele, and he observed Steele weaving on the road and failing to maintain his lane. Steele stopped at his residence, where he staggered as he got out of his vehicle. The officer observed that Steele “couldn’t walk straight,” that he emitted a strong odor of an alcoholic beverage, that his speech was slurred, and that his eyes were glassy. Steele admitted to having consumed alcohol. He refused to perform any field sobriety tests or to consent to a state-administered test. The officer, based on his observations, believed that Steele was under the influence of alcohol to the extent it was less safe for him to drive. Steele subsequently pleaded guilty to DUI.

1. Steele contends that the trial court erred in allowing evidence of the prior DUI conviction, because it did not properly consider or analyze whether the state made the required showing for such evidence pursuant to Williams v. State. We disagree.

The Supreme Court of Georgia held in Williams that, before similar transaction evidence may be admitted, the court must hold a hearing pursuant to Uniform Superior Court Rule 31.3 (B).

At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of admissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

After this hearing, the trial court must determine whether “each of these three showings has been satisfactorily made by the state” before allowing introduction of the similar transaction evidence. We review this determination for abuse of discretion.

Prior to trial, the court held a hearing at which the prosecutor stated the nature of the similar transaction evidence and asked that it be admitted to show, among other things, Steele’s bent of mind and course of conduct. The court ruled that the state had made a sufficient showing that the similar transaction evidence should be admitted for these purposes.

The state’s showing authorized this ruling under Williams. Steele does not contest that he committed the earlier DUI offense. And we have held that bent of mind and course of conduct are proper purposes for the admission of similar transaction evidence in cases involving allegations of less safe DUI. Moreover, the record shows sufficient similarity or connection between the prior DUI conviction and the DUI offense for which Steele was charged in this case. Contrary to Steele’s assertion that the similar transaction evidence had no specific relevance to the charge against him, we have held that a prior act of driving under the influence is relevant to prove the defendant’s bent of mind or course of conduct in a subsequently-charged DUI offense. Likewise, there is no requirement that the trial court make an express determination that the probative value of the similar transaction evidence outweighed its prejudicial impact, as Steele suggests when he argues that the court failed to consider this issue. Accordingly, we find no abuse of discretion in the court’s determination that the state had made the necessary showing to admit evidence of Steele’s prior DUI conviction in this case.

2. Nevertheless, Steele contends that the admission of the evidence was error because using similar transaction evidence to show bent of mind or course of conduct in a less safe DUI case, where he asserts such evidence was not needed to supply a “missing element” in the state’s case, was inherently so prejudicial that it violated “both Georgia common law and statutes regarding the admission of character evidence.” This argument is similar to that asserted by the defendant in Wade v. State. Therein, we held that, notwithstanding any concerns raised by the use of similar transaction evidence to prove bent of mind in DUI cases, this Court is

Decided September 16, 2010

Reconsideration dismissed November 19, 2010.

Philip P. Pilgrim, Jr., for appellant.

Leslie C. Abernathy, Solicitor-General, Lynne S. Amos, Amy M. Radley, Assistant Solicitors-General, for appellee.

not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence here. Only the Supreme Court of Georgia or the Georgia General Assembly has the authority to depart from this state’s established (and unique) rule on the admissibility of similar transaction evidence.

The reasons set forth in Wade regarding the bent of mind rationale are also applicable to Steele’s objection to the course of conduct rationale. For those reasons, we are constrained to affirm the trial court’s judgment.

Judgment affirmed.

Miller, C. J., and Johnson, J., concur.

       OCGA § 40-6-391 (a) (1).

       261 Ga. 640 (409 SE2d 649) (1991).

       Id. at 642 (2) (b).

       Id. (citation and footnote omitted).

       Id.

        Willis v. State, 287 Ga. 703, 705 (3) (699 SE2d 1) (2010). We find no merit in Steele’s contention that we should review this determination de novo.

       See Lester v. State, 278 Ga. App. 247, 250 (2) (628 SE2d 674) (2006) (state may satisfy requirements of Uniform Superior Court Rule 31.3 by stating at hearing the nature of evidence to be given regarding similar transaction).

       See Evans v. State, 287 Ga. App. 74, 76 (2) (651 SE2d 363) (2007); Gamble v. State, 283 Ga. App. 326, 327 (2) (641 SE2d 556) (2007).

       See Duprel v. State, 301 Ga. App. 469, 472 (1) (687 SE2d 863) (2009) (finding sufficient similarity between prior DUI offense and pending DUI charge to show defendant’s bent of mind or course of conduct, even though prior offense involved defendant driving a truck on a public road and charged offense involved defendant driving a motorcycle in a parking lot); Evans, supra (evidence of prior DUI offense was logically connected with pending DUI charge as it was relevant to establish defendant had bent of mind to get behind the wheel of a vehicle when it was less safe to do so).

        Moran v. State, 257 Ga. App. 236, 237 (1) (570 SE2d 673) (2002).

        Hill v. State, 298 Ga. App. 677, 680 (2) (680 SE2d 702) (2009).

       See Evans, supra; Gamble, supra.

       295 Ga. App. 45 (670 SE2d 864) (2008).

       Id. at 48-49 (citations and footnotes omitted).

       See id. at 49.


author: JOHNSON, Judge.

text:
    A10A1642, A10A1679.
    MARINER HEALTH CARE MANAGEMENT COMPANY v. SOVEREIGN HEALTHCARE, LLC et al.; and vice versa.
    (703 SE2d 687)
   JOHNSON, Judge.

In 2003, Mariner Health Care Management Company entered into a contract with Sovereign Healthcare, LLC, Sovereign Healthcare Holdings, LLC and Southern Healthcare Management, LLC (collectively “Sovereign”), whereby Mariner agreed to provide certain administrative services to Sovereign for a period of five years. In 2005, after more than two years of performance under the contract, Sovereign filed the instant lawsuit, claiming that the parties had reached an oral agreement to terminate the contract early, but Mariner subsequently refused to abide by that oral agreement to terminate. Mariner filed a counterclaim for breach of contract, seeking liquidated damages for Sovereign’s premature termination of the administrative services contract. Sovereign moved for summary judgment as to Mariner’s claim for liquidated damages, and Mariner filed an opposing motion for summary judgment. After a hearing, the trial court granted summary judgment to Mariner on the issue of liability for Sovereign’s early termination of the administrative services contract, but denied its motion for summary judgment as to liquidated damages. Instead, the court granted summary judgment to Sovereign as to Mariner’s claim for liquidated damages, finding that the liquidated damages provision in the contract is an unenforceable penalty. Mariner appeals in Case No. A10A1642, and Sovereign cross-appeals in Case No. A10A1679.

Case No. A10A1642

1. Mariner asserts that the trial court erred in finding that the liquidated damages provision in the administrative services contract is unenforceable. The contract provides:

In the event Sovereign terminates this Agreement prior to the expiration of the Initial Term for any reason whatsoever, other than those specified in Sections 4 (a) (i) through (iii) or 4 (c) hereof [concerning certain failures or misconduct by Mariner], Sovereign shall pay [Mariner], in a lump sum, as liquidated damages, an early termination fee equivalent to fifty percent (50%) of the total Fee that would have been paid to [Mariner] through the expiration of the Initial Term. . . .

Georgia law allows parties to provide for liquidated damages in their contracts, and unless the provision violates some principle of law, the parties are bound by their agreement. Such provisions are enforceable if (1) the injury caused by the breach is difficult or impossible to estimate accurately; (2) the parties intended to provide for damages rather than a penalty; and (3) the sum stipulated is a reasonable pre-estimate of the probable loss.

Determining whether a liquidated damages provision is enforceable is a question of law for the court, which necessarily requires the resolution of questions of fact. At trial the burden is on the defaulting party to show that the provision is a penalty, but this burden does not arise at the summary judgment stage. To obtain summary judgment, the moving party must show there is no genuine issue of material fact as to the three factors set out above and that the undisputed facts warrant judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must point to an absence of evidence supporting at least one essential element of the plaintiffs claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant.

In this case, the trial court erred in finding that Sovereign carried its burden of showing an absence of evidence supporting at least one essential element of Mariner’s liquidated damages claim. On the contrary, the record reveals that there is no genuine issue of material fact as to the three factors set out above, and that the undisputed facts warrant enforcement of the liquidated damages clause as a matter of law.

With regard to the first liquidated damages requirement, Sovereign argues that the injury caused by a breach of the administrative services contract was not difficult to estimate because it simply required a calculation of Mariner’s lost profits, by subtracting its costs from its revenue. However, “lost profits are generally held to be too speculative for recovery.” Consistent with that general rule, the Mariner officer who negotiated the administrative services contract averred by affidavit, and without contradiction, that when the parties entered into the contract it was impossible to estimate Mariner’s lost profits in the event of a breach because its future costs were unknown due to variables such as inflation, labor market fluctuations, and the facts that this was a new business venture for Mariner and that it was using a new billing software system. Because the undisputed facts show that the anticipated expenses for the new business venture could not have been easily calculated, there is no question that the injury caused by a breach of the contract was difficult to estimate with accuracy.

“As for the second [liquidated damages] requirement, we ascertain the intent of the parties by first looking to the language of the contract. Although the words used by the parties are not conclusive, they are a significant factor in determining the parties’ intent.” Here, the contract specifically referred to the payment of “liquidated damages” in the event of an early termination by Sovereign, thereby supporting an inference that the parties intended to provide for liquidated damages rather than a penalty. Moreover, the record contains statements from officers who helped negotiate the contract for both sides that the liquidated damages provision was meant to compensate Mariner for lost revenues in the event of an early termination.

Finally, as to the third requirement, “the touchstone question is whether the parties employed a reasonable method under the circumstances to arrive at a sum that reasonably approximates the probable loss. . . .” An officer for Sovereign deposed that the amount of liquidated damages agreed upon was fair, reasonable and standard in the industry. Furthermore, Mariner presented evidence that the actual profit margin under the contract, prior to its termination, was approximately 48.5 percent. Thus, liquidated damages in the amount of 50 percent of remaining fees under the contract was a reasonable pre-estimate of probable loss.

Because Sovereign failed to show that the liquidated damages provision is an unenforceable penalty, and indeed the undisputed facts establish that the provision is enforceable as a matter of law, the trial court erred in granting summary judgment to Sovereign on that ground, and in denying summary judgment to Mariner. Accordingly, that portion of the trial court’s order must be reversed.

2. Mariner contends that the trial court erred in denying its motion for summary judgment as to Sovereign’s additional breach of contract claims based on Mariner’s alleged loss of certain accounts payable data and alleged failure to properly transmit payroll data to the Internal Revenue Service, resulting in a fine of Sovereign. As recited above, Mariner, as the movant, was required to demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Contrary to Mariner’s contention, the record reveals that genuine issues of material fact exist as to Sovereign’s breach of contract claims. Since Mariner has failed to show that it is entitled to judgment as a matter of law on those claims, the trial court did not err in denying summary judgment.

3. Likewise, the trial court did not err in denying summary judgment to Mariner on Sovereign’s claim for attorney fees for bad faith under OCGA § 13-6-11. Questions concerning bad faith under OCGA § 13-6-11 are generally for the jury to decide. Indeed, “[o]nly in the rare case where there [is] absolutely no evidence to support the award of expenses of litigation would the trial court be authorized to grant summary adjudication on such issues.” This is not such a rare case, and therefore Mariner is not entitled to summary judgment.

Case No. A10A1679

4.In several enumerations of error, Sovereign challenges the trial court’s grant of summary judgment to Mariner on the issue of liability for the early termination of the administrative services contract. The linchpin of Sovereign’s appeal is its claim that it is not liable for refusing to allow Mariner to finish performing under the contract because the parties orally agreed to end the contract prior to the termination date contained in the written agreement. However, it is undisputed that the contract expressly provides that no part of the agreement “may be modified or amended orally, by trade usage or by course of conduct or dealing, but only by and pursuant to an instrument in writing duly executed and delivered by the party sought to be charged therewith.” As the trial court correctly found, such “ [contractual requirements that all modifications be made in writing are valid and enforceable. [Cit.]” Regardless of any oral communications between the parties, it is undisputed that Sovereign and Mariner did not modify the administrative services contract in writing to allow for an early termination of its terms.

Decided October 28, 2010

Reconsideration denied November 19,2010

Troutman Sanders, Thomas E. Reilly, Brian P. Watt, for appellant.

Greenberg Traurig, Michael J. King, Brock, Clay, Calhoun & Rogers, Nancy I. Jordan, Charles M. Dalziel, Jr., for appellees.

We are satisfied, as a matter of law, that this clear and unambiguous provision served to place [Sovereign] on due notice that [it] could not thereafter reasonably rely upon any words or other course of dealing. . . , other than a modification agreement actually reduced to writing, in order to change or modify the written [contract].

Because there was no written modification of the contract, the trial court did not err in granting summary judgment to Mariner on the issue of the unenforceability of the alleged oral modification.

5. The remaining enumerations of error are without merit and, because of our holding above, need not be addressed.

Judgment affirmed in part and reversed in part in Case No. A10A1642. Judgment affirmed in Case No. A10A1679.

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

       OCGA § 13-6-7; Joyce’s Submarine Sandwiches v. California Public Employees’ Retirement System, 195 Ga. App. 748, 749 (2) (395 SE2d 257) (1990).

        Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

       (Citations omitted.) Nat. Svc. Indus. v. Here To Serve Restaurants, 304 Ga. App. 98, 100 (695 SE2d 669) (2010).

        Triad Drywall v. Bldg. Materials Wholesale, 300 Ga. App. 745, 746 (686 SE2d 364) (2009). See also KAR Printing v. Pierce, 276 Ga. App. 511 (623 SE2d 704) (2005).

       See Bldg. Materials Wholesale v. Triad Drywall, 287 Ga. App. 772, 776 (2) (653 SE2d 115) (2007) (to recover lost profits one must show both probable gains and expenses with great specificity).

        Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 687 (1) (534 SE2d 145) (2000).

       See Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989); Swan Kang, supra.

        Caincare, Inc. v. Ellison, 272 Ga. App. 190, 193 (1) (612 SE2d 47) (2005).

       Compare Nat. Svc. Indus., supra at 104 (no evidence demonstrating reasonableness of liquidated damages provision as an estimate of probable loss); Adams v. D & D Leasing Co. of Ga., 191 Ga. App. 121, 123 (1) (381 SE2d 94) (1989) (liquidated damages in the amount of all remaining payments without a reduction to present value did not constitute a-reasonable pre-estimate of probable loss).

       See Swan Kang, supra.

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

        American Med. Transport Group v. Glo-An, Inc., 235 Ga. App. 464, 467 (3) (509 SE2d 738) (1998).

       (Citation and punctuation omitted.) Id.

        Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 536 (1) (502 SE2d 352) (1998).

       See generally BDI Laguna Holdings v. Marsh, 301 Ga. App. 656, 661 (1) (689 SE2d 39) (2009) (oral communications immaterial where contract required amendments to be in writing and there was no evidence of a written amendment).

        Hendricks v. Enterprise Financial Corp., 199 Ga. App. 577, 580 (2) (405 SE2d 566) (1991).

        Gerdes, supra. Compare C. Brown Trucking Co. v. Henderson, 305 Ga. App. 873 (700 SE2d 882) (2010) (mutual oral agreement to rescind an executory contract requiring written modifications was appropriate because rescission of a contract that has not yet been performed is not equivalent to modification of a valid executed contract).


text:
    A10A0982.
    THE STATE v. RAMIREZ-HERRARA.
    (703 SE2d 429)
   Doyle, Judge.

Alberto Ramirez-Herrara was charged with five counts of violating the Georgia Street Gang Terrorism and Prevention Act (the “Anti-Gang Act”), two counts of obstructing a law enforcement officer, two counts of possessing a firearm during the commission of a felony, carrying a concealed weapon, and two counts of giving false information to a law enforcement officer. The trial court granted Ramirez-Herrara’s general demurrer as to the Anti-Gang Act charges (Counts 1-5), and the State appeals. We reverse for reasons that follow.

1. At the outset, we address the jurisdictional basis for this appeal. OCGA § 5-7-1 (a) (1) provides that

[a]n appeal may be taken by and on behalf of the State of Georgia from the superior courts . . . and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases . . . [fjrom an order, decision, or judgment setting aside or dismissing any . . . accusation ... or any count thereof.

Here, by granting the demurrer as to the Anti-Gang Act charges, the trial court effectively dismissed those five counts. “When the ruling of the trial court is in substance a dismissal of the indictment, the State may appeal an order dismissing an indictment under OCGA § 5-7-1 (a) (1). . . .” Thus, the order granting the demurrer as to five of the twelve counts is directly appealable under OCGA § 5-7-1 (a).

2. The State argues that the trial court erred by granting Ramirez-Herrara’s general demurrer as to the Anti-Gang Act counts because the indictment was legally sufficient. We agree and reverse.

Pursuant to OCGA § 17-7-54 (a), an indictment “shall be deemed sufficiently technical and correct” if it “states the offense in the terms and language of [the Georgia] Code or so plainly that the nature of the offense charged may easily be understood by the jury.”

[I]f an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

Here, the State charged in the indictment that Ramirez-Herrara, “being associated with MS-13, a criminal street gang, did unlawfully participate in criminal street gang activity through the commission of [the specific offenses listed in Counts 6 through 10 of the indictment]. OCGA § 16-15-4 (a) of the Anti-Gang Act provides that it is “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of [specifically enumerated offenses].” Each of the Anti-Gang Act counts alleged in the indictment tracks the language of the Anti-Gang Act statute and

is sufficient to withstand a general demurrer because it states the offense in the statutory language or so plainly that the nature of the offense charged may easily be understood by the jury, and each of the named defendants would be guilty of the crime charged if the facts as alleged in the count are taken as true.

Accordingly, the trial court erred by granting Ramirez-Herrara’s demurrer.

3. The trial court’s order granting the demurrer states that “pursuant to the evidence proffered by both the State and the Defense . . . OCGA § 16-15-4 et seq[.] does not [apply] to the facts of this case in that they fail to establish a nexus between the alleged offenses in [C]ounts 6-11 and criminal street gang activity.” The trial court’s grant of the demurrer based on the insufficiency of the proffered evidence was erroneous because

Decided November 19, 2010

Gwendolyn Keyes Fleming, District Attorney, Michael S. Carlson, Assistant District Attorney, Bondurant, Mixson & Elmore, John E. Floyd, for appellant.

Ingrid J. McGaughey, Gerard B. Kleinrock, for appellee.

the State was not required to set out its evidence in response to the demurrer[ ]. . . . When considering a general demurrer, the legal sufficiency of the pleading, not the evidence, is the issue. In fact, a motion seeking to dismiss an indictment on the ground that the State cannot prove facts essential to the charge is analogous to a motion for summary judgment in a civil case, and there is no basis in Georgia criminal practice for what, in civil practice, would be termed a motion for summary judgment.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 16-15-4 (a).

       OCGA § 16-10-24.

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-11-127 (a).

       OCGA § 16-10-25.

       Although Ramirez-Herrara did not file a separate motion to dismiss this appeal, he challenges jurisdiction in his brief.

       (Punctuation omitted.) State v. Yapo, 296 Ga. App. 158, 159 (1) (674 SE2d 44) (2009).

       See id.; State v. Tuzman, 145 Ga. App. 481, 482 (1) (243 SE2d 675) (1978) (“To say that an order cannot be final if it does not dispose of the entire indictment is to reduce to a nullity the ‘any count thereof’ language of [the Code section]. It is obvious, then, that the legislature recognized that an order final as to one count of an indictment was final enough for a direct appeal by the [S]tate.”).

        State v. Corhen, 306 Ga. App. 495 (700 SE2d 912) (2010).

       Neither party disputes that the commission of the crimes alleged in Counts 6 through 10 may constitute “criminal gang activity” as defined in OCGA § 16-15-3 (1).

        Corhen, 306 Ga. App. at 501 (4). See Falagian v. State, 300 Ga. App. 187, 191-193 (3) (684 SE2d 340) (2009) (affirming denial of demurrer to indictment for theft by taking); Bradford v. State, 266 Ga. App. 198, 198-200 (1) (596 SE2d 715) (2004) (same).

       The trial court relied upon Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009) (holding that OCGA § 16-15-4 (a) requires active gang participation hy the defendant and “some nexus between the act and an intent to further street gang activity”) (punctuation omitted).

       (Citations and punctuation omitted; emphasis supplied.) Corhen, 306 Ga. App. at 502 (4).


text:
    A10A1002.
    SMITH v. HILLTOP POOLS AND SPAS, INC.
    (703 SE2d 424)
   Doyle, Judge.

Matthew L. Smith appeals from the trial court’s grant of summary judgment to Hilltop Pools and Spas, Inc. (“Hilltop”), arguing that the trial court erred by finding that Smith’s negligence and contract claims were barred by the statute of limitation and that Smith failed to produce any evidence of fraud or deceit (and thereby rescission on the basis of fraud). For the reasons that follow, we affirm.

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

So viewed, the record before us reveals that Smith entered into a contract with Hilltop in early February 2001, for construction of an in-ground swimming pool. Hilltop contracted with Wayne Younger to excavate the area, and during excavation, Younger discovered garbage fill in the area, which would cost extra to remove. Smith agreed to the extra expense, and Smith surveyed the area with Younger, at which time Younger told Smith all the garbage had been removed. Smith recalled that Younger had re-buried the trash approximately 30 to 40 feet away from the pool site, and Smith did not recall seeing any trash in the original trash pit after Younger completed the excavation. A Hilltop representative swore that he did not knowingly represent any fraudulent information concerning removal of the garbage and did not make any representation to Smith that was false or intended to deceive Smith about garbage remaining in the pool site.

Smith deposed that in August 2001, Hilltop had installed the liner for the pool, but the pool was unlevel, which was visually apparent from the tile pattern on the pool liner. Smith also deposed that the pool was usable at that time, but Hilltop agreed to return to the residence in February 2002, reassess the leveling situation, and change the liner at that time. Additionally, the parties agreed that Smith could withhold the final payment on the contract of approximately $1,300 and that Hilltop would begin changing the liner by February 28, 2002, would complete the work within 28 days, and would compensate Smith $150 per day for which the liner replacement was incomplete. It is undisputed that the liner replacement was never completed, although Smith met with a representative from Hilltop in May 2002, and Smith never remitted the final payment of the contract to Hilltop. Despite the unlevel appearance of the water in the pool, Smith deposed that he utilized the pool for swimming during warm months of the year, beginning in August 2001, until one wall of the pool collapsed in September 2004.

Smith deposed that the pool was unusable after September 2004, but he did not file suit against Hilltop until October 8, 2007. Hilltop filed a motion for summary judgment, contending that the claims against Hilltop should be dismissed because the applicable statutes of limitation had expired and because Smith had failed to produce evidence of fraud by Hilltop. The trial court agreed with Hilltop and granted the motion. Smith now appeals.

1. Smith argues that the trial court erred by finding that his breach of contract and negligence claims were barred by the six-year statute of limitation. Specifically, Smith contends that the trial court erroneously relied on the date the contracted-for work was “substantially completed” as the date from which the statute of limitation began to run, and Smith argues instead that the date on which the final payment becomes due and payable is the appropriate date from which the statute began to run. Smith also contends that the parties mutually agreed to extend the contract until February 28, 2002, and the complaint was timely filed in October 2007, prior to expiration of the statute of limitation in February 2008. We disagree.

“Generally, whether a cause of action is barred by the statute of limitation is a mixed question of law and fact. Where the facts are in dispute, the question is one of fact to be determined by the trier of fact, but where the facts are not disputed, the question is one of law for the court.”

All actions upon simple contracts in writing shall be brought within six years after the same become due and payable. Based on this statute of limitation, this Court has held that an action for breach of a written construction contract must be filed within six years after the work has been substantially completed. Substantial completion means the date when construction was sufficiently completed, in accordance with the contract as modified by any change order agreed to by the parties, so that the owner could occupy the project for the use for which it was intended.

Substantial completion triggers the time to file an action because the “damage to the property arising out of faulty construction . . . normally is ascertainable ... at that time.”

The trial court determined that Hilltop substantially completed the project by August 2001, when Smith deposed that the pool was usable, and his only concern with the construction was that the pool was not level, and the tile pattern of the pool liner made this visually apparent and aesthetically displeasing. Although the parties exchanged correspondence in which Hilltop promised to change the liner in February 2002, the trial court determined that this agreement did not serve to change the trigger date for the statute of limitation because the pool served the purpose for which it was constructed beginning in August 2001. We agree and affirm.

Smith argues that while a construction contract’s “substantial completion” date normally is the date from which an action becomes “due and payable,” in this case, the extension until February 2002 of the agreement to replace the liner delayed the trigger date for the contract to be due and payable, as evidenced by the parties’ mutual agreement for Smith to withhold the final payment under the contract until that time. For support, Smith relies on Wallace v. Bock, in which the Supreme Court of Georgia explained that “the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” Here, the alleged breach occurred when Younger failed to adequately excavate the trash in the area around the pool, and Hilltop completed installation of the pool overtop, not when Hilltop failed to replace the liner in February 2002. It is undisputed that by August 2001, it was apparent to Smith that the pool was unlevel, regardless of whether the problem appeared to be merely cosmetic or evidence of a more serious structural issue, and Smith could have immediately ascertained that there was some injury, which was potentially a result of Hilltop’s breach of the construction contract. Thus, the right of action had accrued by the time that Hilltop removed its workers from the site in August 2001, and the agreement to replace the liner and assess the pool level in the spring or the delay (and eventual nonpayment) of the final $1,300 of the contract did not serve to extend the “due and payable” date until February 2002.

Accordingly, the trial court correctly determined that the statute of limitation for contract actions expired prior to the date upon which Smith filed his complaint. Moreover, because the same six-year limitation period applies to Smith’s claims for breach of express and implied warranties, the trial court’s grant of summary judgment as to those claims also was appropriate.

2. Smith also argues that the trial court’s grant of summary judgment on his fraud and misrepresentation claims was improperly based on the trial court’s erroneous finding that Smith presented no evidence of false claims or specific intent to deceive.

In support of his contention, Smith provided the affidavit of Dan Rankin, an owner and operator of a pool installation business, who testified that any representation by Hilltop that the structural issues were the result of normal settling was “utterly false.” Rankin further affirmed that Hilltop employees, as experienced pool installers, would be aware that the problem was not cosmetic and not normal settling at the time they purportedly made such statements to Smith, and they would have known there was a serious problem with the foundation of the pool; any representations by Hilltop employees that the problem could be resolved by changing the vinyl liner was “false and misleading . . . and likely lulled . . . Smith into a false sense of security with respect to the structural integrity of the pool. . . .”

Smith contends that this was sufficient evidence from which a jury could find that Hilltop fraudulently misrepresented or concealed facts about the state of the pool, and the trial court therefore erred by granting the motion for summary judgment as to these claims. We disagree and affirm.

Fraud claims are governed by a four-year statute of limitation,. .. but this limitation period may be tolled if [Hilltop] committed an act of actual fraud that had the effect of concealing from [Smith] the existence of the cause of action despite its exercise of reasonable diligence. Actual fraud involves moral turpitude, and requires an intentional deception by false representation or by concealment of a fact. When actual fraud is the gravamen of the underlying action, no independent fraud is required for tolling of the statute of limitation, and the limitation period is tolled until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the fraud. When the defects in the property are of such a nature that the [owner] could not discover them through the exercise of due diligence, the burden is on the [contractor] to disclose the seriousness of the problems of which he is aware, provided that the [contractor] knows that the [owner] is acting under a misapprehension as to facts which would be important to the buyer in making his decision.

We agree with the trial court’s conclusion that Smith has not presented sufficient evidence of fraud. Smith himself deposed that Younger, the independent contractor hired by Hilltop to remove the trash deposit, told Smith that he had completely removed the trash from the pool location. Smith did not present any evidence that Younger informed Hilltop differently or that Hilltop had reason to know that trash remained in the location, and Smith himself also deposed that he did not see anything in the location after Younger completed his excavation.

Although Smith presented Rankin’s affidavit, in which Rankin theorized that Hilltop intentionally lied to Smith when its representatives failed to explain that the unlevel appearance of the pool liner was more than an aesthetic problem, that the unlevel appearance indicated an underlying structural problem, and that Hilltop’s conduct amounted to fraud, the affidavit is insufficient to create a jury issue as to whether Hilltop’s representatives knew their representations were false.

3. Finally, Smith contends that the trial court erred by granting the motion for summary judgment as to his claims of punitive damages and expenses of litigation because the grant was based on the trial court’s erroneous holdings that Smith lacked any viable underlying claims. Based on our holdings in Divisions 1 and 2 of this opinion, we affirm the trial court’s grant of summary judgment on these claims.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided November 19, 2010.

Philip S. Coe, for appellant.

Hall, Booth, Smith & Slover, Jonathan Marigliano, Rush S. Smith III, Charles M. Gisler, for appellee.

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

       (Punctuation omitted.) McGhee v. Jones, 287 Ga. App. 345, 347 (2) (652 SE2d 163) (2007).

       (Punctuation and footnotes omitted.) Wilks v. Overall Constr., 296 Ga. App. 410, 412 (1) (674 SE2d 320) (2009).

        Scully v. 1st Magnolia Homes, 279 Ga. 336, 338 (1) (614 SE2d 43) (2005).

       279 Ga. 744, 747-748 (2) (620 SE2d 820) (2005).

       (Punctuation omitted.) Id. at 747 (2).

       See, e.g., Colormatch Exteriors v. Hickey, 275 Ga. 249, 251 (2) (569 SE2d 495) (2002); Wilks, 296 Ga. App. at 413 (1).

       Compare with Wallace, 279 Ga. at 747-748 (2).

       See Colormatch, 275 Ga. at 254 (4); Gropper v. STO Corp., 250 Ga. App. 820, 823-824 (2) (552 SE2d 118) (2001) (holding that “the limitation period [for any breach of warranty claims based upon either express or implied contracts arising in connection with the construction contract] began to run at the time ... of substantial completion”).

       OCGA § 9-3-31.

       (Citations and punctuation omitted.) Ramey v. Leisure, Ltd., 205 Ga. App. 128, 129-130 (1) (421 SE2d 555) (1992).

       See Costrini v. Hansen Architects, P.C., 247 Ga. App. 136, 138 (2) (543 SE2d 760) (2000) (no evidence of fraud based on plaintiffs allegations that builder “deterred [the plaintiff] from bringing the suit because [the builder] denied liability and told [the plaintiff] that the water problems” were not caused by the builder but by others). Compare with Ramey, 205 Ga. App. at 130 (1) (jury’s verdict determining that contractor committed fraud by passively concealing improperly laid footing was supported by evidence that the contractor was on the site multiple times during construction of the footing, the contractor admitted to seeing the obviously improperly shaped footing, and the contractor failed to notify the building inspector of completion of the footing prior to pouring concrete over the trenches, concealing the improper construction from the inspector).

       See McGraw v. Smith, 232 Ga. App. 513, 515 (2) (502 SE2d 347) (1998) (“it is well established that an expert witness may not state a legal conclusion as to the ultimate issue”); Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) (389 SE2d 339) (1989) (holding that testimony showing the defendant should have known that performing a biopsy of the fallopian tube in the manner in which he performed it would render the plaintiff sterile - rather than her sterility being caused from the “diseased condition” of the fallopian tube as the defendant testified - “only raise[d] an inference of negligence, not of fraud”).

        Pollman v. Swan, 305 Ga. App. 369, 375 (4) (699 SE2d 582) (2010) (because the trial court correctly granted summary judgment on [the plaintiffj’s fraud claims, “it follows that punitive damages are not supportable”). See Walker County v. Tri-State Crematory, 284 Ga. App. 34, 40 (1) (643 SE2d 324) (2007) (claims for attorney fees and damages survive only with survival of underlying tort action).


author: Ellington, Judge.

text:
    A10A1411.
    GONZALEZ v. THE STATE.
    (703 SE2d 433)
   Ellington, Judge.

A Gwinnett County jury found Byron Gonzalez guilty beyond a reasonable doubt of armed robbery by use of a device having the appearance of an offensive weapon, OCGA § 16-8-41 (a). He appeals from the denial of his motion for new trial, contending that the trial court gave a jury charge that was not supported by the evidence, resulting in plain error. He also complains that he received ineffective assistance of counsel. For the following reasons, we reverse Gonzalez’s conviction and remand this case to the trial court for a new trial.

Viewed in the light most favorable to the jury’s verdict, the evidence at trial showed that, in the early morning hours of February 2, 2008, a man (“the victim”) was walking through a subdivision in Lawrenceville when another man (“the assailant”) approached him. The assailant blocked the victim’s path and told the victim that he was looking for an apartment because he was going to kill someone. When the victim said that he was not from the area, the assailant grabbed him by the back of his belt and told him to start walking. As the assailant walked behind the victim, he told the victim that he had a gun and that he was going to kill him if the victim kept talking. The assailant took the victim behind a building where it was very dark, let go of the victim’s belt, and told the victim that this was a robbery and that he wanted the victim’s wallet. The victim gave the assailant his wallet, and the assailant took cash from it before throwing it to the ground. It is undisputed that, throughout the encounter, the assailant kept his right hand behind his back — the victim never saw the assailant’s right hand or any weapon.

The victim picked up his wallet and started running toward a nearby gas station while calling 911 on his cell phone. The victim reported that the assailant had stolen three $100 bills from him and was wearing a white jacket with a hood covering his face. The victim flagged down a taxi and, while talking on his phone and riding through the area, the victim saw the assailant walking down a street and alerted the taxi driver and the police. The taxi driver told the police that the man the victim had identified as the assailant had a beard and was wearing a hooded sweat shirt and sweat pants. The police apprehended Gonzalez a short time later. Gonzalez was wearing a black coat and dark colored jeans. The police called the victim and told him to come and see if Gonzalez was the man who had robbed him; the victim then identified Gonzalez as the assailant. During a search incident to arrest, the police found two $100 bills in Gonzalez’s possession. Police officers searched the area where the victim had been robbed but did not find a white jacket or a gun.

In addition to this evidence, the record shows that the victim originally told the police officers that the assailant had taken three $100 bills from his wallet, but then testified at trial that the assailant had only taken two $100 bills and that he had forgotten that he had left some money at home. Further, when the victim testified that he could not remember what time he had left home, what time he had arrived at the subdivision, or what time he had been robbed, he explained that, “since I had drank three beers [that night], I don’t remember very well.” Finally, as shown above, the victim’s description of the assailant’s clothing to the taxi driver, to the police during the 911 call, and, ultimately, to the jury during trial, as well as the taxi driver’s description of the man she saw, varied significantly from the clothes Gonzalez was wearing when he was arrested.

At the close of the State’s evidence, Gonzalez moved for a directed verdict, arguing to the court that there was no evidence that the assailant had a “device” that appeared to be an offensive weapon, nor was there any evidence that the victim saw anything under the assailant’s jacket — such as a toy gun, a pipe, his hand, etc. — that would appear to be a handgun. Ultimately, based upon conflicts in the evidence, especially evidence regarding what the assailant and Gonzalez were wearing on the night of the assault, Gonzalez’s counsel argued to the jury that Gonzalez was not the assailant and that this was a case of mistaken identity.

1. On appeal, Gonzalez contends that the trial court erred when it gave a jury charge that suggested facts which were not supported by evidence, thereby violating OCGA § 17-8-57 and entitling him to a new trial. Specifically, Gonzalez argues that the evidence presented at trial consistently showed that, throughout the assault, the assailant had his right hand behind his back where the victim never saw it. Gonzalez contends that, as a result, there was no evidence to support the court’s jury instruction telling the jury that they could infer the alleged assailant’s use of “a device having the appearance of an offensive weapon” from evidence that there was “a hand being held underneath the alleged assailant’s shirt.” According to Gonzalez, the court’s instruction “incorrectly and impermissibly assumed certain facts not introduced at trial” and, thus, “expressed an opinion concerning the evidence in violation of OCGA § 17-8-57.” We agree.

Under OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

In order to determine whether a trial court has improperly expressed an opinion in its charge as to what has or has not been proved, the whole charge may be considered. OCGA § 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.

(Citations omitted.) Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986). See State v. Gardner, 286 Ga. 633, 634-635 (690 SE2d 164) (2010) (“[I]n order to violate OCGA § 17-8-57, the trial court’s comments must pertain to a disputed issue of fact.”) (citations omitted).

[A] violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. [] On appeal, the issue is simply whether there was such a violation. If so, it is well established that the statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial.

(Citations and punctuation omitted; emphasis in original.) Id. at 634. See OCGA § 17-8-57 (“Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.”); Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008) (“It is the duty of [the appellate court] to grant a new trial when [a violation of OCGA § 17-8-57] is committed, whether, in its opinion, substantial justice has or has not been done by the verdict. Such an error renders the grant of a new trial imperative, without reference to the correctness of the verdict.”) (citation and punctuation omitted).

We conclude that the trial court’s jury charge in this case suggested facts that were not supported by any evidence, specifically, that the assailant held his hand underneath his shirt during the robbery. Therefore, the erroneous charge was an impermissible comment on the evidence in violation of OCGA § 17-8-57, and, consequently, constituted plain error. See Stephens v. State, 245 Ga. App. 823, 825-826 (4) (538 SE2d 882) (2000) (finding an instruction that “juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable” to be an impermissible comment on the evidence where that characterization could not be placed on the defendant’s testimony) (citation omitted). Accordingly, we reverse Gonzalez’s conviction and remand this case to the trial court for a new trial. OCGA § 17-8-57; State v. Gardner, 286 Ga. at 634-635.

2. Due to our decision in Division 1, supra, Gonzalez’s claim of ineffective assistance of counsel is moot.

Judgment reversed and case remanded.

Andrews, P. J., and Doyle, J., concur.

Decided November 22, 2010.

Maryann F. Blend, for appellant.

Daniel J. Porter, District Attorney, Latysha M. Saunders, Assistant District Attorney, for appellee.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       The State played a recording of the 911 call for the jurors.

       The record in this case shows that the court charged the jury as follows:
      A person commits armed robbery when, with the intent to commit theft, that person takes property of another, from the person of another, by the use of an offensive weapon or a device having the appearance of such a weapon. An offensive weapon is any object, device or instrument that, when used offensively against a person, is likely to or gives the appearance of being likely to or actually does result in death or serious bodily injury. The character of a weapon may be established by direct or circumstantial evidence. Further, a hand being held underneath the alleged assailant’s shirt may constitute a device having the appearance of an offensive weapon if the victim reasonably believes such is an offensive weapon. The test is whether the defendant’s alleged acts created a reasonable apprehension on the part of the alleged victim that an offensive weapon was being used, regardless of whether the victim actually saw the alleged weapon.
      (Emphasis supplied.) See Joyner v. State, 278 Ga. App. 60, 60-61 (628 SE2d 186) (2006) (This Court affirmed the defendant’s conviction for armed robbery through the use of an article having the appearance of an offensive weapon when the evidence showed that, during the robbery, he had his hand inside his jacket in a way that it looked like he was holding a gun. This Court held that a conviction for armed robbery may be established by circumstantial evidence and “may be sustained even though the weapon or article used was neither seen nor accurately described by the victim. What is required is some physical manifestation of a weapon or some evidence from which the presence of a weapon may be inferred.”) (citation and punctuation omitted); see also Forde v. State, 277 Ga. App. 410, 412 (1) (626 SE2d 606) (2006) (accord); Marlin v. State, 273 Ga. App. 856, 858-859 (2) (616 SE2d 176) (2005) (accord); Martin v. State, 264 Ga. App. 813, 814 (592 SE2d 483) (2003) (accord); Smith v. State, 209 Ga. App. 540, 541 (433 SE2d 694) (1993) (accord); but cf. Tate v. State, 191 Ga. App. 727, 728 (2) (382 SE2d 688) (1989) (Evidence that the defendant approached the victim with his hand in his jacket pocket was insufficient evidence from which the jury could infer the presence of a weapon because there was no evidence that the defendant’s hand was in a position that it looked like a pistol, that it appeared that the defendant had anything in his pocket besides his hand, or that the defendant said anything to suggest he was holding a weapon. Therefore, the evidence did not support a conviction for criminal attempt to commit an armed robbery.).

       “The ‘plain error’ rule does not establish a different standard for determining the reversibility of an error, but instead allows a criminal defendant to avoid the penalty of waiver, by permitting appellate review of assertions of error raised for the first time on appeal where the asserted error affects substantive rights.” (Citation and punctuation omitted.) Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008).