author: DOYLE, Presiding Judge. MCFADDEN, Judge,

text:
    A13A0245.
    STRICKLAND v. THE STATE.
    (746 SE2d 204)
   DOYLE, Presiding Judge.

Christopher Strickland was convicted of driving under the influence of alcohol to the extent it was less safe to do so. Strickland thereafter filed a motion for new trial, which the trial court denied. Strickland appeals, arguing that (1) the trial court erred by admitting similar transaction evidence and that (2) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in that light, the evidence shows that in the early morning hours of August 27, 2008, a Forsyth County officer was patrolling his assigned area and discovered a parked pickup truck very close to the entrance of a supermarket parking lot. Strickland’s vehicle was improperly parked in an aisle area between the designated rows of parking spaces. The vehicle was running, the parking lights were on, and it had been located in the lot only about 15 to 20 minutes, and not more than 30 minutes. The officer exited his patrol car, approached the vehicle, found no one in the cab, and discovered Strickland passed out on his stomach in the bed of the pickup. After several minutes of attempting to rouse Strickland, the officer finally succeeded, and he encountered the strong smell of alcohol on Strickland’s person.

The officer questioned Strickland about where he thought he was, and he answered “at home.” Strickland first told the officer that he consumed “a lot” to drink, but then stated he had consumed “three” drinks. The officer again asked Strickland if he knew where he was, and he “kind of looked around and . . . said DeKalb County.” The officer asked Strickland if he knew how he got there, and he answered that “[he] drove ... [but] was not going to drive anymore because he had too much to drink.” Strickland thereafter refused to perform any field sobriety tests, and the officer arrested him.

Based on those facts, the jury was authorized to conclude that Strickland was guilty of DUI - less safe.

1. Strickland first contends that the trial court erred by allowing evidence of an earlier DUI conviction because it was not similar to the facts of the underlying charge.

We review the trial court’s findings of fact regarding similar transaction evidence under the clearly erroneous standard, but we will not disturb the trial court’s ultimate decision to admit evidence absent an abuse of discretion.

Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

The facts of the similar transaction that were admitted into evidence showed that Strickland was convicted of a DUI subsequent to the date of the DUI in question here. He was driving the same truck in which he was discovered in the parking lot, and he refused the State-administered breath test as he did in this case. Based on the facts and this Court’s case law, the trial court did not abuse its discretion by admitting the similar transaction evidence to show bent of mind and course of conduct.

2. Strickland also contends that his trial counsel was ineffective.

In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, [] a criminal defendant is required to show that counsel’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different. Upon appellate review of that claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Strickland contends that his trial counsel was ineffective for failing to ask for a continuance to call a witness who had been subpoenaed and who was critical to the defense. We disagree.

Specifically, Strickland contends that his trial counsel was ineffective for failing to move for a continuance in order to allow witness Seth Simoni to testify that he had driven Strickland from the club at which the two were drinking to the supermarket parking lot where the officer found Strickland passed out in his vehicle. At the hearing on the motion for new trial, Strickland’s trial counsel testified that he did not ask for a continuance of the trial in order to have Simoni testify because he believed that the State had failed to prove that Strickland was in control of the motor vehicle such that the jury could find Strickland guilty of DUI - less safe. Trial counsel explained that he had subpoenaed Simoni to testify, but Simoni was arrested for an outstanding charge on the day of Strickland’s trial. Thus, at the close of the State’s case, when Strickland moved for a directed verdict of acquittal on the basis that the State failed to establish that Strickland had operated his vehicle while intoxicated, Strickland’s trial counsel made the strategic decision not to ask for a continuance in order to secure Simoni’s testimony.

‘Whether to present an alibi defense is a strategic and tactical decision that, after thorough investigation and client consultation, is virtually unchallengeable and does not require a finding of ineffective assistance of counsel.” Here, Strickland’s counsel testified that his decision was a strategic one, and we will not second guess it in hindsight. The record does not contain the nature of the charges for which Simoni was arrested on the day of Strickland’s trial, but those charges may have been admissible to impeach his testimony. Moreover, based on the evidence presented at trial, including Strickland’s repeated statements to the officer that he drove himself to the location; the state of the vehicle (parked in the aisle of a parking lot, with the motor running and parking lights on) when the officer came upon it; and the small window of time during which Simoni would have had to have completed dropping off Strickland and then left the area, it is unlikely that trial counsel’s failure to secure his testimony affected the verdict. Accordingly, the trial court did not err by denying Strickland’s motion for new trial on this ground.

(b) Strickland also contends that his trial counsel was ineffective for failing to conduct voir dire of the potential jury.

At the hearing on the motion for new trial, Strickland’s trial counsel testified that he “wish[ed] he had” conducted voir dire of the potential jurors because he would have discovered that one of the jurors “had a son that was an alcoholic [, the juror’s son] had a felony case that was prosecuted by [the trial judge] when [the judge] was the [district attorney,] and [the juror] had a connection with — he knew [the trial judge] and his wife socially.” Nevertheless, “[b]y their nature, trial counsel’s conduct of voir dire and the decision on whether to interpose challenges are matters of trial tactics.” The voir dire portions of the trial were not transcribed, but the trial court’s order denying Strickland’s motion for new trial found that the court asked each juror general questions, and the State followed with more specific questions. This finding is not challenged in Strickland’s brief. As the trial court aptly concluded, trial counsel’s choice not to prolong voir dire was not unreasonable, and his testimony at the motion for new trial hearing suggested the benefit of hindsight.

Moreover, for the reasons stated in Division 2 (a) supra, it is unlikely based on the facts of this case that any voir dire of the jury would have affected the outcome of the trial, and the trial court, therefore, did not err by denying the motion for new trial on this ground.

Judgment affirmed.

Boggs, J., concurs. McFadden, J., concurs in Divisions 1 and 2 (b) and in judgment only as to Division 2 (a).

MCFADDEN, Judge,

concurring specially.

I concur in the judgment only as to Division 2 (a). Otherwise I concur fully.

Trial counsel testified that his failure to insist upon a continuance in order to secure the attendance of a properly-subpoenaed witness who did not appear at trial was a mistake. And — in a candid and severe self-assessment — he testified that he had subordinated his client’s interests to the convenience of the other participants in the trial. I cannot agree that this admitted mistake can be labeled “strategy” and disregarded.

As trial counsel put it at the start of his very brief opening statement, “most DUI cases are about whether the driver was drunk. This case is about whether the drunk was driving.” There was no other defense.

Trial counsel put up no evidence to support that defense. He had properly subpoenaed Seth Simoni and therefore apparently was entitled to a continuance when Simoni did not appear. See OCGA § 17-8-25; Anthony v. State, 276 Ga. App. 107, 109 (2) (622 SE2d 450) (2005). At the new trial hearing, Simoni testified that he and Strickland, both contractors, had traveled together in Simoni’s vehicle to look at a job, that they had stopped for drinks afterward, “and then I took him back to his vehicle, which was in a grocery store parking lot, and I dropped him off.”

Strategy entails analysis of the potential risks and benefits of particular tactics. Trial counsel’s hope that the jury would acquit, without more, was not strategy. And I do not see how the possibility of its being disbelieved is a strategic reason for not introducing the sole evidence of the sole defense.

A long line of our cases, in which a defendant was found drunk in or near a parked vehicle, hold the circumstantial evidence sufficient to support an inference that the defendant got there by driving drunk and therefore to affirm the DUI conviction. Patterson v. State, 302 Ga. App. 27 (690 SE2d 625) (2010); Deering v. State, 244 Ga. App. 30 (535 SE2d 4) (2000); Jones v. State, 219 Ga. App. 780 (466 SE2d 667) (1996); Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988); Stephens v. State, 127 Ga. App. 416 (193 SE2d 870) (1972). A shorter line of our cases, on the other hand, find that inference could be rebutted as a matter of law by evidence that someone else drove. Krull v. State, 211 Ga. App. 37 (438 SE2d 152) (1993). Cf. State v. Hill, 178 Ga. App. 669 (344 SE2d 491) (1986).

Trial counsel’s failure to insist upon a continuance cannot be disregarded on the basis that it was strategy. While “trial counsel is afforded tremendous deference over matters of trial strategy,” such “trial strategy must be reasonably supported and within the wide range of professionally competent assistance.” Westbrook v. State, 291 Ga. 60, 64 (4) (b) (727 SE2d 473) (2012); Turpin v. Christenson, 269 Ga. 226, 239 (12) (B) (497 SE2d 216) (1998) (citations omitted).

I nevertheless concur in the judgment, because I agree that the ineffective assistance argument fails on the second prong of the standard of Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). In light of the undisputed evidence that appellant’s truck was parked “in between parking space [s]... right in the middle of the aisle, sideways between two aisles,” where it would have been in the way of a customer trying to park, and its engine was running and its parking lights were on, and that appellant told the arresting officer that he had been driving, I agree that the appellant cannot show a reasonable probability that the outcome of the trial would have been different.

Decided July 9, 2013

Reconsideration denied July 24, 2013.

Zeliff & Watson, Peter M. Zeliff, for appellant.

Leslie C. Abernathy, Solicitor-General, DonnaS. Gopaul,AmyM. Radley, Assistant Solicitors-General, for appellee.

       OCGA § 40-6-391 (a) (1). Strickland was also charged with one count of possession of less than an ounce of marijuana, OCGA § 16-13-30 (j) (i), to which charge he pleaded guilty prior to trial.

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       See, e.g., Hinton v. State, 319 Ga. App. 673, 675 (738 SE2d 120) (2013) (“OCGA § 40-6-391 (a) (1) provides that a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. To sustain a conviction under this statutory provision, the State must prove that the defendant was (1) driving, (2) under the influence of alcohol, (3) to the extent that it was less safe for the person to drive.”) (punctuation omitted), quoting Jaffray v. State, 306 Ga. App. 469, 471 (1) (702 SE2d 742) (2010). See also Jenkins v. State, 223 Ga. App. 446, 447 (1) (478 SE2d 143) (1996) (“|T]t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.”) (citations and punctuation omitted; emphasis in original).

        See Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (approving two standards of review for admission of similar transaction evidence: clear error for the trial court’s findings of fact and abuse of discretion for the trial court’s ultimate decision whether to admit evidence). See also Simmons v. State, 291 Ga. 705, 710 (8) (a) (733 SE2d 280) (2012).

        Schoolfield v. State, 251 Ga. App. 52, 55 (2) (554 SE2d 181) (2001) (similar transaction of past DUI in which defendant was stopped for speeding and reckless driving was admitted into evidence in a case against the defendant in which he was discovered passed out in a parked car).

       See id. See also Ayiteyfio v. State, 308 Ga. App. 286, 289-290 (2) (707 SE2d 186) (2011).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Reeves v. State, 288 Ga. 545, 546 (2) (705 SE2d 159) (2011).

       (Punctuation omitted.) Id.

       Cf. Dorris v. State, 291 Ga. App. 716, 717-718 (662 SE2d 804) (2008) (circumstances, including the lack of beverage containers in cab of the vehicle and irregular manner of parking, conflicted with defendant’s testimony that she consumed alcohol after arriving at the location and parking); Schoolfield, 251 Ga. App. at 53 (defendant’s girlfriend and another witness testified at trial that they drove him to the location at which he was found passed out in a running vehicle without any sign of another driver at the location).

        Head v. Carr, 273 Ga. 613, 623 (4) (C) (2) (544 SE2d 409) (2001).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A0417.
    CARSTAFFIN v. THE STATE.
    (743 SE2d 605)
   Ray, Judge.

Following a jury trial, Wilson Carstaffin was convicted on two counts of child molestation (OCGA § 16-6-4), two counts of sexual battery (OCGA § 16-6-22.1), and one count of enticing a child for indecent purposes (OCGA § 16-6-5). He appeals from his convictions and the denial of his motion for new trial, contending that he had ineffective assistance of counsel. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows the following facts. In 2007, the 12-year-old victim, L. H., was attending middle school. Carstaffin was an Atlanta police officer assigned to the middle school as a school resource officer. On November 30, 2007, L. H. approached Carstaffin during school hours and informed him that she wanted to talk to him about a prior sexual assault involving four boys. After L. H. talked to him about the incident, Carstaffin gave L. H. his phone number and asked her if she would be willing to meet with him later, and L. H. agreed. Later that day, Carstaffin came to L. H.’s classroom and pulled her out of class. He told her that he wanted to pick her up after school and asked her to meet him on a street corner by the school in an area where other students would not see him picking her up.

After school that day, Carstaffin drove his personal vehicle to the arranged location and picked up L. H. While they were driving around, Carstaffin brought up the incident with the four boys, and he told L. H. that he wanted “to do [her] like the four boys did [her].” Carstaffin then made various inappropriate sexual remarks to L. H. Carstaffin also fondled L. H.’s breasts and her vaginal area, attempted to show her his penis, and asked her if she wanted to get a hotel room. After driving around for a couple of hours, Carstaffin dropped L. H. off near her house, and she walked home.

L. H. lived with her mother in Atlanta, and her father lived in Decatur. L. H. testified that her mother was waiting for her when she arrived home and that her father had come over to their house because he was worried and wanted to find out why she was late coming home from school. L. H. testified that she was worried about getting in trouble and that she was reluctant to disclose that she had been with Carstaffin because she did not want to talk about what he had done to her. Nevertheless, she told them that she was late because she had been driving around and talking with Carstaffin. At trial, she also denied the implication that she was making up the story about Carstaffin to get out of trouble for coming home late. Although L. H. testified initially that she told her parents that night about everything that happened, she later testified that she told them about the sexual abuse the following morning when she woke up. L. H.’s father testified that L. H. informed him of the sexual abuse when she arrived home that night. When asked if she felt like her father was angry at her, L. H. responded “I don’t know . . . [y]es.” The evidence against Carstaffin at trial consisted primarily of the testimony and prior statements of L. H., as there was no physical evidence of sexual abuse. Thus, the credibility of her outcry was critical to the prosecution’s case. Carstaffin contends that he received ineffective assistance of trial counsel because his attorney failed to investigate and present evidence that L. H.’s father had used corporal punishment on L. H. in the past when she misbehaved and that the perceived threat of such punishment for coming home late could have established a motive for L. H. to fabricate her initial outcry.

In considering the trial court’s ruling on a claim of ineffective assistance of counsel, this Court accepts “the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (2) (716 SE2d 176) (2011).

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Punctuation and footnote omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations omitted.) Kendrick v. State, 290 Ga. 873, 877 (4) (725 SE2d 296) (2012). Further, we recognize that “[tjhere is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

At the hearing on the motion for new trial, Carstaffin’s trial counsel testified that his defense strategy was based on L. H.’s credibility and her propensity to make false allegations in general, as well as the integrity of her initial outcry to her parents. Trial counsel testified that he also sought to establish that L. H.’s subsequent disclosure of the sexual abuse to school officials and law enforcement was corrupted by the manner in which she was interviewed.

With regard to L. H.’s initial outcry to her parents, trial counsel claimed that he was “hyper-focused” on his attempt to introduce evidence that L. H. had previously made exaggerated or false allegations against her father concerning prior physical discipline, and that he did not actually determine whether there was ever any prior physical discipline that may have affected the integrity of her outcry.

Assuming, without deciding, that the failure to elicit testimony about prior physical discipline from the father constituted deficient performance, Carstaffin has failed to show that this alleged deficiency prejudiced the defense. The record shows that Carstaffin’s trial counsel got L. H. to admit that she was afraid of getting into trouble for coming home late on the evening of the incident. Furthermore, L. H. testified that she believed that she was in trouble when she got home, that her father was upset and angry, and that she felt that he was angry at her. L. H.’s father likewise testified at trial that he was upset and angry that night, but that he was not angry at L. H. Thus, there was evidence presented which would have authorized the jury to conclude that L. H. had a motive to lie about the sexual abuse, i.e., to avoid being in trouble for coming home late. Although Carstaffin claims that his trial counsel’s failure to investigate and present evidence of prior physical discipline weakened the defense’s theory concerning L. H.’s motive to fabricate the allegations, Carstaffin has failed to show that there is a reasonable probability that the outcome of the proceedings would have been different based on the evidence that was presented at the hearing on the motion for new trial.

Decided May 29, 2013

Reconsideration denied July 24, 2013

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

For the above reasons, we need not evaluate whether trial counsel’s performance was deficient for failing to investigate the father’s prior physical discipline of L. H., because Carstaffin has failed to establish that trial counsel’s performance prejudiced his defense in this case.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       At the new trial hearing, L. H.’s father acknowledged that he had used corporal punishment on L. H. when she was younger.


author: ANDREWS, Presiding Judge.

text:
    A13A0255.
    A13A0256.
    A13A0257.
    BAKER et al. v. HUFF. LIBERTY MUTUAL INSURANCE COMPANY v. HUFF. JONES v. HUFF.
    (747 SE2d 1)
   ANDREWS, Presiding Judge.

These consolidated appeals arise from assorted litigation spawned by a single-car accident in December 2002 in which Harlan Huff was killed when he lost control of his car and hit a tree, and his adult son, Joshua Huff (Joshua), a passenger in the car, was seriously injured. Liberty Mutual Insurance Company provided a liability insurance policy on the car with policy limits of $100,000 per person. In pursuit of a personal injury claim against the Estate of Harlan Huff (Harlan’s Estate), Joshua made time-limited offers to Liberty Mutual to settle the claim for the policy limits. Liberty Mutual eventually tendered the policy limits, but not within the time deadline, and Joshua rejected the tender. Joshua’s personal injury suit was tried in January 2006 resulting in a $278,806 judgment against Harlan’s Estate. Liberty Mutual paid the $ 100,000 policy limits to partially satisfy the judgment, leaving an unpaid judgment against Harlan’s Estate in excess of the policy limits in the amount of $178,806, and leaving Harlan’s Estate with a potential claim against Liberty Mutual for the unpaid judgment based on allegations that Liberty Mutual acted in bad faith or negligently by failing to accept the time-limited offers to settle Joshua’s claim for the policy limits.

Patricia Huff, the executrix of Harlan’s Estate, refused Joshua’s request for assignment of the Estate’s claim against Liberty Mutual. As executrix, Patricia Huff hired an attorney, Bonnie Baker of the law firm of Meadows & Macie, PC. (where Patricia worked as a paralegal) to represent Harlan’s Estate. Baker negotiated with Liberty Mutual to attempt to settle the Estate’s claim, but Huff, as executrix, refused to sign a draft agreement purporting to settle the claim for $15,000. Liberty Mutual unsuccessfully sued to enforce the settlement, ultimately resulting in this Court’s decision in In re Estate of Huff, 287 Ga. App. 614 (652 SE2d 203) (2007), ruling that there was no settlement agreement. In the meantime, Patricia Huff, as executrix, eventually offered to assign the Estate’s claim against Liberty Mutual to Joshua, but Joshua refused the offer and filed a motion in the probate court seeking removal of Huff as executrix of Harlan’s Estate. In April 2007, the probate court granted the motion; removed Patricia Huff as executrix of Harlan’s Estate; and appointed Joshua as administrator (with the will annexed) of Harlan’s Estate.

This brings us to the litigation the subject of the present appeals. Harlan’s Estate (acting by its administrator, Joshua) filed a complaint in October 2008 alleging causes of action against the following defendants: (1) against Liberty Mutual — alleging bad faith, negligence, and breach of contractual obligations by failing to accept the time-limited offers to settle Joshua’s claim against Harlan’s Estate for the policy limits; (2) against Liberty Mutual, Baker, and the Estate of Patricia Huff (represented by Rhonda Jones, as executrix) — alleging violation of the Uniform Fraudulent Transfers Act (UFTA) (OCGA § 18-2-70 et seq.) by a conspiracy to settle the bad faith/negligence claim possessed by Harlan’s Estate for less than its true value; (3) against Baker and Meadows & Macie, P.C. — alleging legal malpractice, negligence, and breach of fiduciary duty by failing to properly represent the interests of Harlan’s Estate, and (4) against the Estate of Patricia Huff — alleging breach of fiduciary duty owed to Harlan’s Estate by actions taken by Huff, as executrix of the Estate, authorizing or approving settlement of the Estate’s bad faith claim for less than its true value. The trial court denied motions for summary judgment filed by all the named defendants and granted certificates of immediate review. We granted applications for interlocutory appeals from the denial of summary judgment brought by: Liberty Mutual in Case No. A13A0256; Meadows & Macie, P.C. and Bonnie Baker in Case No. A13A0255; and Rhonda Jones, as executrix of the Estate of Patricia Huff, in Case No. A13A0257.

Case No. A13A0256

1. Liberty Mutual moved for summary judgment on the causes of action for bad faith or negligent failure to settle within the policy limits; for breach of contract; and for violation of the UFTA.

(a) We first consider the claim by Harlan’s Estate that Liberty Mutual acted in bad faith or negligently when it failed to accept Joshua’s time-limited offers to settle his personal injury claim for the policy limits.

On March 18, 2003, Liberty Mutual received a medical authorization from Joshua (prior to being represented by an attorney) pursuant to which Liberty Mutual obtained (on or about May 22, 2003) medical records and bills relevant to the December 26, 2002 automobile accident showing that Joshua had suffered a fractured ulna (forearm) and a cerebral contusion in the accident and had medical bills of about $35,000. The medical records obtained as of that date showed that, as a result of the cerebral contusion, Joshua had initially suffered substantial hemiparesis (weakness) and numbness on his right side. The records showed that Joshua was discharged from a hospital in Atlanta three days after the accident “ambulating as tolerated with [a] cane” with directions to follow up in one to two weeks (when he returned to his Texas residence) with orthopedic and neurological consultations and to continue with physical therapy. The medical records subsequent to the hospital discharge showed that Joshua’s injuries had substantially improved since the accident. A January 23, 2003 progress note from a family health center in Texas states “hemiparesis showing great improvement.” Records from a Texas orthopedist showed that the fractured ulna had fully healed as of early May 2003. The medical records also showed evidence that Joshua had sustained a prior head injury in a 1995 automobile accident that required craniofacial surgery. Although Joshua’s family health center and orthopedic records showed that a neurological consultation was scheduled, there was nothing in the medical records obtained by Liberty Mutual on May 22 showing that Joshua had followed up with a neurological consultation to evaluate his right-side impairments as a result of the cerebral contusion, or that he had continued physical therapy as directed.

On May 23, 2003, Michael Neff sent a letter informing Liberty Mutual that he was representing Joshua as his attorney on a personal injury claim against Liberty Mutual’s insured (Harlan’s Estate) arising out of the accident. The letter informed Liberty Mutual that “[o]ur office will prepare a complete closing brochure highlighting our clients’s injuries at the conclusion of our client’s medical treatment.” On May 27, 2003, Liberty Mutual’s representative responded by letter asking Neff to make Joshua available for a recorded statement to enable Liberty Mutual to investigate the accident and to “independently verify the extent of injuries and treatment.” Liberty Mutual did not question that its insured was liable for Joshua’s injuries resulting from the accident. On May 30, 2003, Neff responded by letter requesting that Liberty Mutual provide him with copies of all the medical records it had obtained and refusing to make Joshua available for a statement. On June 19, 2003, Neff sent a letter to Liberty Mutual stating that:

[I]n light of the clear liability in this case and the tragic damages, I hereby am making a demand pursuant to Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 416 S.E.2d 274 (1992) for the entire policy limits in the amount of $100,000. This offer is open for ten days. In the event that you do not tender policy limits within that time, you are exposing your insured’s estate to an excess judgment.... Furthermore, kindly treat this letter as Mr. Huff’s cancellation of his authorization for Liberty Mutual to obtain medical records or any other documents concerning his health. I will be quite happy to provide any additional information that I receive to Liberty Mutual.

Although the letter does not explicitly state that it is an offer to settle Joshua’s claim for the policy limits, it references the Holt case, and Liberty Mutual does not dispute that it was an offer to fully settle for the policy limits. The June 19 letter enclosed no medical or billing records; no information regarding Joshua’s special or other damages; and no information about his current treatment or medical condition. Neff testified that the June 19 letter was not the “complete settlement brochure” that he informed Liberty Mutual would be sent at the conclusion of Joshua’s treatment.

On June 27, 2003, within ten days of the June 19 Holt offer, the Liberty Mutual representative spoke to Neff by telephone and Neff agreed to give Liberty Mutual photographs of the accident in exchange for Liberty Mutual’s agreement to send Neff the medical records it had obtained in May 2003. The Liberty Mutual representative testified that, during the conversation, he asked Neff for additional medical bills and records, and asked if Joshua was still receiving medical treatment. Neff told him he had no records and did not know if Joshua was still receiving treatment. According to Neff, the Liberty Mutual representative

asked me about what I had, and I didn’t have anything. So I think he asked me what I didn’t have or what don’t we have, and I didn’t know because I didn’t know what we had. So it was a little bit of a situation where I was not sure and he was not sure, other than the fact the meds were $35,000.

Under these circumstances, the representative told Neff that Liberty Mutual was not prepared to tender the policy limits. On June 30, 2003, Liberty Mutual sent a letter to Neff confirming the agreement that Liberty Mutual would send him copies of the medical records and stating that the claim was still under review. Neff testified that, because the ten-day offer period in the June 19 Holt offer expired on June 29, and Liberty Mutual did not expressly ask him for any additional time to consider the offer, the window to settle for the policy limits had closed. During a July 14, 2003 telephone conversation, the Liberty Mutual representative again asked Neff if Joshua was receiving further treatment, and Neff did not know. In that conversation, the representative offered to settle Joshua’s bodily injury claim for $43,000, and on July 30, 2003, Liberty Mutual sent a letter to Neff confirming the $43,000 offer. Neff responded by letter on July 31, 2003, rejecting the $43,000 offer, and informing Liberty Mutual that “Joshua has started physical therapy and has an appointment with the neurosurgeon on August 13 to evaluate his continuing limitations.” Neff testified that he erroneously referred in the letter to a neurosurgeon, and that Joshua saw a neurologist on August 13, 2003. In a subsequent affidavit regarding Liberty Mutual’s $43,000 settlement offer in the July 14 telephone conversation, Neff stated that he believed Liberty Mutual was not sufficiently considering Joshua’s injuries resulting from the cerebral contusion, and that “I realized that Liberty Mutual had to be given more explicit proof of brain injury.” Neff gave subsequent testimony explaining his affidavit, stating that he was “shocked” that Liberty Mutual needed additional proof, and that he “had to mule-lead [Liberty Mutual] to a conclusion that they needed to tender policy limits, and [he] couldn’t do it, not in a timely manner.”

On October 22, 2003, Neff provided Liberty Mutual with the neurologist’s August 13, 2003 medical records when he sent Liberty Mutual a package described as a “settlement brochure” including a letter and attachments. The attached medical records from the neurologist showed that Joshua’s right-side impairments as a result of the cerebral contusion suffered in the December 26, 2002 accident had continued to improve. The neurologist noted that the initial impairment on his right side arm and leg “has gotten better but he still doesn’t have good fine motor skills.” The neurologist found that his cognitive skills were back to normal and the only remaining numbness was in “the right big toe.” The neurologist concluded, however, that, as a result of the cerebral contusion Joshua suffered in the accident, he continued to have “residual right hemiparesis and spasticity” causing a sustained clonus (ankle jerk) that “probably won’t go away.” The October 22 letter in the “settlement brochure” package specified special damages for medical expenses and lost wages as a result of the accident in the amount of $44,586.79, and calculated pain and suffering over Joshua’s life expectancy for permanent impairments arising from the injuries suffered in the accident in the amount of $274,480. The October 22 letter also stated that “based on the enclosed information” Joshua was making a Holt demand, open for ten days, for “payment of the full policy limits [of $100,000] in exchange for a full release.” But on October 28, 2003, prior to expiration of ten days from the October 22 offer, Neff sent another letter to Liberty Mutual stating that it was his understanding that Liberty Mutual had not received the October 22 letter; enclosing a copy of the October 22 letter; and further stating that: “Please be advised that Joshua is willing to accept $100,000 to compensate him for his pain and suffering only. The settlement release should indicate that the amount tendered is meant to partially compensate him for his pain and suffering.”

On November 4, 2003, Liberty Mutual responded with a letter to Neff acknowledging receipt of the October 28 letter and stating that “[w]e are sending the medical records out for a medical review so [we] will be unable to respond to your demand within the time frame you requested.” Neff testified that, after the ten days expired from the October 22 letter, the offer to settle for the $100,000 policy limit expired and the window for settlement closed. In January 2004, after receiving the results of an expert medical review, Liberty Mutual tendered the $100,000 policy limit to settle Joshua’s bodily injury claim. Joshua refused Liberty Mutual’s offer to settle for the policy limits, and sued Harlan’s Estate for injuries he suffered in the accident.

“An insurance company may be liable for the excess judgment entered against its insured based on the insurer’s bad faith or negligent refusal to settle a personal claim within the policy limits.” Cotton States Mut. Ins. Co. v. Brightman, 276 Ga. 683, 684 (580 SE2d 519) (2003). An insurer must

[act] reasonably in responding to a settlement offer, bearing in mind that, in deciding whether to settle, the insurer must give the insured’s interests [in avoiding liability for a judgment in excess of the policy limits] the same consideration that it gives its own [interests in paying less than the policy limits].

Fortner v. Grange Mut. Ins. Co., 286 Ga. 189, 190 (686 SE2d 93) (2009) (citation and punctuation omitted); Brightman, 276 Ga. at 685. To promote equal consideration of these interests, the applicable standard of care requires that the insurer “must use such care as would have been used by an ordinarily prudent insurer with no policy limit applicable to the claim.” U. S. Fidelity & Guaranty Co. v. Evans, 116 Ga. App. 93, 94-95 (156 SE2d 809) (1967) (citation and punctuation omitted); see Fortner, 286 Ga. at 190 (actions judged by standard of ordinarily prudent insurer). An ordinarily prudent insurer does not incur liability “solely because it fails to accept a settlement offer within the deadline set by the injured person’s attorney.” Southern General Ins. Co. v. Holt, 262 Ga. 267, 269 (416 SE2d 274) (1992). As Holt points out, liability for an excess judgment cannot be based on an insurer’s failure to accept a time-limited offer to settle within the policy limits which, considering all the circumstances, imposes an unreasonably short period of time to respond. Id. “Rather, the issue is whether all the facts show sufficient evidence to .. . permit a jury to determine whether the insurer acted unreasonably in declining to accept a time-limited settlement offer.” Id. To find that the insurer acted unreasonably in declining to accept a time-limited settlement offer, the facts must be sufficient to permit a jury to find that no ordinarily prudent insurer would have declined to accept the offer. See Fortner, 286 Ga. at 190 (whether insurer acted reasonably is judged by standard of ordinarily prudent insurer). Moreover, whether the basis for imposing tort liability on the insurer is phrased in terms of bad faith or negligence, an insurer may be liable for damages for failing to settle for the policy limits “if, but only if, such ordinarily prudent insurer would consider that choosing to try the case [rather than accept an offer to settle within the policy limits] would be taking an unreasonable risk [that the insured would be subjected to a judgment in excess of the policy limits].” Evans, 116 Ga. App. at 94-95 (citation and punctuation omitted); Brightman, 276 Ga. at 684-685 (citing “unreasonable risk” test in Evans, supra); McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (310 SE2d 513) (1984). This is generally a jury issue requiring consideration of all the relevant circumstances including the insurer’s knowledge of facts relevant to liability and damages on the claim; the insurer’s diligence in conducting a reasonable investigation to discover the relevant facts; and the terms of the settlement offer and any response by the insurer. See Holt, 262 Ga. at 268-269; Brightman, 276 Ga. at 685-686; Fortner, 286 Ga. at 190-191. An insurer has no affirmative duty “to engage in negotiations concerning a settlement demand that is in excess of the insurance policy’s limits.” Brightman, 276 Ga. at 687.

Harlan’s Estate contends that Liberty Mutual is liable on a claim for bad faith or negligent failure to settle based on the failure to accept Joshua’s time-limited June 19 and October 22/28 offers to settle his claim for the $100,000 policy limits.

We reject Liberty Mutual’s contention that it was entitled to summary judgment on this claim solely because Joshua’s special damages were less than the $100,000 policy limits. Citing to Holt and Brightman supra, Liberty Mutual contends that, because the special damages were less than the $100,000 policy limit, as a matter of law, it had no duty to respond to a time-limited offer to settle for the policy limit. Holt rejected the insurer’s argument that it had no duty to its insured to respond to a deadline to settle a claim within the policy limits, and pointed out that the insurer had knowledge of clear liability and of special damages exceeding the policy limits. Holt, 262 Ga. at 269. The issue, as Holt points out, was whether, considering all the facts, there was sufficient evidence to “permit a jury to determine whether the insurer acted unreasonably in declining to accept a time-limited settlement offer.” Id. Moreover, Holt found that the insurer’s liability in that case was not based solely on its failure to settle the claim within the deadline set by the plaintiff’s attorney, but also on other evidence showing that, by failing to settle within the policy limits, the insurer failed in its duty to give equal consideration to the interests of its insured. Id. Citing to the Holt ruling, Brightman found that the insurer “had a duty to its insured to respond to the plaintiff’s deadline to settle the personal injury claim within policy limits when the insurer had knowledge of clear liability and special damages exceeding the policy limits.” Brightman, 276 Ga. at 685. Brightman noted that “[o]ur holding in Holt was consistent with the general rule that the issue of an insurer’s bad faith depends on whether the insurance company acted reasonably in responding to a settlement offer.” Id. at 685. Accordingly, Holt and Brightman simply found that it was unreasonable for the insurer to fail to respond to a time-limited offer to settle within the policy limits when the insurer had knowledge of clear liability and special damages exceeding the policy limits. Contrary to Liberty Mutual’s contention, Holt and Brightman cannot be construed as holding that it is always reasonable for an insurer not to respond to a time-limited offer to settle within the policy limits when special damages do not exceed the policy limits.

As to the settlement offers conveyed in the October 22 and October 28 letters, we find no basis for imposing liability on Liberty Mutual for failing to accept these offers. The October 22 letter conveyed an offer, open for ten days, to settle Joshua’s bodily injury claims and provide a full release for the $100,000 policy limits. The October 28 letter (which enclosed a copy of the October 22 letter) advised Liberty Mutual that Joshua was “willing to accept $100,000 to compensate him for his pain and suffering only,” and stated that the release should show that this sum was to partially compensate Joshua for his pain and suffering. We find that the October 28 letter modified the offer made in the October 22 letter and constituted a new offer to accept the policy limits for a partial settlement of pain and suffering damages only. This was not an offer to fully settle a claim within the policy limits to which Liberty Mutual had a duty to respond under Holt, supra. Rather, the October 28 offer to settle only pain and suffering damages for the policy limits, in effect, invited Liberty Mutual to engage in negotiations to fully settle the claim, which included additional damages for medical expenses and lost wages, for an amount in excess of the policy limits. As set forth above, Liberty Mutual had no duty “to engage in negotiations concerning a settlement demand that is in excess of the insurance policy’s limits.” Brightman, 276 Ga. at 687. Harlan’s Estate argues that it was not Neff’s intention in the October 28 letter to modify the October 22 Holt offer to fully settle the claim for the policy limits, but only to direct that the $100,000 be allocated to pain and suffering damages. Whatever Neff may have intended, we find that the plain language of the October 28 letter had the effect of modifying the October 22 Holt offer. To the extent the negligent or bad faith failure to settle claim was based on Liberty Mutual’s failure to accept settlement offers made in the October 22 or October 28 letters, Liberty Mutual was entitled to summary judgment. Id.

As to the time-limited offer to fully settle the claim for the policy limits within ten days, conveyed in the June 19 letter, we find on the present record that the facts are not sufficient to permit a jury to find that no ordinarily prudent insurer would have declined to accept the settlement offer within the deadline. Accordingly, there is no basis in the record for a jury to find that Liberty Mutual’s failure to accept the settlement offer within the deadline was unreasonable. It follows that Liberty Mutual was entitled to summary judgment on the claim that it acted in bad faith or negligently in failing to accept the June 19 settlement offer. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

When Liberty Mutual received the June 19 offer to settle for the policy limits within ten days, the available information regarding Joshua’s injuries, along with actions taken by Neff, left it with no reasonable option but to decline to tender the $100,000 policy limits within the deadline. Neff refused Liberty Mutual’s request for a statement from Joshua shortly before making the settlement offer and revoked Liberty Mutual’s medical authorization in the settlement offer. The settlement offer contained no current medical records; no information about current treatment or current medical condition; and no statement of special or other damages. In the June 19 letter, Neff offered to “provide any additional information that I receive,” but when Liberty Mutual contacted him within the ten-day offer period and asked for additional medical and billing records, Neff said he had nothing and knew only that the medical bills were $35,000. At that point, Liberty Mutual had only the medical and billing records it previously obtained on or about May 22, the day before Neff gave notice that he represented Joshua. The billing records showed medical expenses of about $35,000. The medical records showed that the fractured forearm had fully healed. As to the right-side impairment Joshua suffered as a result of the cerebral contusion, the records showed that the impairment was substantially improving. The records also showed that Joshua had been instructed to obtain a neurological consultation to evaluate the extent of the impairment, and to get physical therapy. But there was nothing in the medical records showing that Joshua had obtained a neurological consultation or physical therapy. Accordingly, when Liberty Mutual received the ten-day offer to settle on June 19, it did not know the extent of the impairment, whether the impairment had continued to improve, whether the impairment had resolved, whether any residual impairment was temporary or permanent, or whether the impairment was related to Joshua’s prior 1995 head injury. Furthermore, Liberty Mutual had no means at that point to obtain additional information to value the impairment. Within the ten-day offer period, Liberty Mutual asked Neff for additional medical information, got none, and informed him that, under the circumstances, it could not tender the policy limits. Although Liberty Mutual did not explicitly ask Neff for more time to obtain medical records to enable it to place a value on Joshua’s impairment, Neff had already refused access to his client, revoked Liberty Mutual’s medical authorization to get records, and told Liberty Mutual that he had no information about Joshua’s medical treatment. It was implicit in this discussion that Liberty Mutual conveyed the message that more time was needed to obtain information to evaluate the extent of the impairment. In any event, under these circumstances, an extension of time would not have addressed Liberty Mutual’s predicament. It was impossible under these circumstances for Liberty Mutual to obtain additional information needed to determine whether or not Joshua’s impairment had a value which justified tendering the $100,000 policy limits. Liberty Mutual acted reasonably under the circumstances by informing Neff that it was not prepared, without more information, to tender the $100,000 policy limits to settle the claim.

This conclusion is confirmed by evidence showing that Neff eventually informed Liberty Mutual on July 31 that Joshua was attending physical therapy and had scheduled an August 13 neurological consultation. On October 22, Neff provided Liberty Mutual with the neurologist’s records which confirmed that Joshua’s injuries resulting from the cerebral contusion had continued to substantially improve; that his cognitive ability had returned to normal; that his numbness had resolved except for the right big toe; and that his initial right-side arm and leg impairment was better except for a deficiency in “fine motor skills.” The neurologist’s records also showed that Joshua had “residual” impairment with an “ankle jerk” that is probably permanent. These records, along with additional information provided by Neff on October 22 regarding Joshua’s current medical expenses, lost wages, and estimated pain and suffering damages associated with the permanent impairment, gave Liberty Mutual information necessary to place a value on Joshua’s right-side impairment as a result of the cerebral contusion. In response to this information, Liberty Mutual tendered the $100,000 policy limits in January 2004.

As set forth above, in responding to a time-limited settlement offer, an insurer must act reasonably, and is not required to accept an offer which, under all the circumstances, imposes an unreasonably short period of time to respond. Holt, 262 Ga. at 269; see Government Employees Ins. Co. v. Gingold, 249 Ga. 156 (288 SE2d 557) (1982) (insurer entitled to summary judgment on failure to settle claim when facts established the insurer had no reasonable opportunity to settle). On this record, we find that the facts show as a matter of law that the June 19 settlement offer was made under circumstances which provided no reasonable settlement opportunity and rendered it impossible for Liberty Mutual to determine that Joshua’s injuries had a value which justified tendering the $100,000 policy limits. Although whether an insurer acted in bad faith or negligently in failing to accept a time-limited offer to settle within the policy limits is usually a jury question, we find under these circumstances that no reasonable trier of fact could conclude that Liberty Mutual acted unreasonably when it failed to tender the $100,000 policy limits within the ten-day time limit imposed in the June 19 settlement offer.

(b) Harlan’s Estate alleged that Liberty Mutual’s failure to accept Joshua’s offer to settle for the policy limits was a breach of contractual obligations set forth in the policy and entitled the Estate to recover damages. This was not a breach of contract but a tort claim. Evans, 116 Ga. App. at 94. The trial court erred by denying summary judgment to Liberty Mutual on the breach of contract cause of action.

(c) Harlan’s Estate alleged that Liberty Mutual engaged in a conspiracy with others which resulted in a fraudulent transfer in violation of the UFTA for which the Estate is entitled to monetary damages. The crux of this cause of action is that Liberty Mutual and the other alleged conspirators engaged in fraudulent conduct by taking actions which diminished the value of an asset possessed by Harlan’s Estate — the bad faith/negligence claim against Liberty Mutual for failing to settle Joshua’s personal injury claim for the policy limits. Because we determined in Division 1 (a), supra, that Liberty Mutual was entitled to summary judgment on the bad faith/negligence claim, there was no claim and no Estate asset. The trial court erred by denying Liberty Mutual’s motion for summary judgment on the claim that it engaged in a conspiracy which violated the UFTA.

Case No. A13A0255

2. Harlan’s Estate alleged causes of action against the Estate’s former attorney, Bonnie Baker, and Baker’s law firm, Meadows & Macie, P.C., for legal malpractice, negligence, breach of fiduciary duty, and fraudulent transfer in violation of the UFTA. All of these causes of action arose from the same allegations — that by conspiring with others to attempt to settle the Estate’s bad faith/negligence claim for less than its true value, these defendants took actions contrary to the Estate’s interest which diminished the value of the claim as an Estate asset. Because we determined in Division 1 (a), supra, that Liberty Mutual was entitled to summary judgment on the bad faith/negligence claim, there was no claim and no Estate asset. The trial court erred by denying the motion for summary judgment by Baker and by Meadows & Macie, P.C., on all of these causes of action.

Case No. A13A0257

3. Harlan’s Estate brought causes of action against the Estate of Patricia Huff (naming Rhonda Jones as executrix) alleging that, while Patricia Huff was the executrix of Harlan’s Estate, she engaged in a conspiracy with others which resulted in a fraudulent transfer in violation of the UFTA, and violated her fiduciary duty to Harlan’s Estate. Both of these causes of action arose from the same allegations — that Patricia Huff and others attempted to settle the bad faith/ negligence claim that Harlan’s Estate had against Liberty Mutual for less than its true value, and that these actions diminished the value of the claim as an asset of Harlan’s Estate. Because we determined in Division 1 (a), supra, that Liberty Mutual was entitled to summary judgment on the bad faith/negligence claim, there was no claim and no Harlan’s Estate asset.

The record shows that, because the Estate of Patricia Huff failed to respond to discovery served on it by Harlan’s Estate, the trial court granted Harlan’s Estate’s motion for sanctions, struck the answer filed by the Estate of Patricia Huff, and directed entry of default against her Estate. Although the default operated as an admission of Harlan’s Estate’s well-pled factual allegations in the complaint, it was not an admission of conclusions of law, and did not preclude a showing under the admitted facts that no claim existed that would allow Harlan’s Estate to recover. Grand v. Hope, 274 Ga. App. 626, 629 (617 SE2d 593) (2005). Because we found that Harlan’s Estate had no bad faith/negligence claim, there is no basis for the causes of action to recover damages against the Estate of Patricia Huff for action that diminished the value of the claim as an asset of Harlan’s Estate. The trial court erred by denying the Estate of Patricia Huff’s motion for summary judgment on these causes of action.

Judgments reversed.

Dillard and McMillian, JJ., concur.

Decided July 5, 2013

Reconsideration denied July 25, 2013

Carlock, Copeland & Stair, Thomas S. Carlock, Peter Werdesheim, Harrison W. Spires, for appellants (case no. A13A0255).

Isenberg & Hewitt, Brent J. Kaplan, for appellant (case no. A13A0256).

W. Winston Briggs, for appellant (case no. A13A0257).

Bondurant, Mixson & Elmore, Michael B. Terry, Robert H. Benefield, Jr., Michael L. Neff, for appellee.

       Patricia Huff was Harlan Huff’s wife and Joshua Huff’s stepmother.

       Patricia Huff died before Harlan’s Estate filed the complaint.

       Joshua subsequently testified that he could not recall if he was still receiving medical treatment at that point.

       We find that the facts and circumstances which support this conclusion in the present case are matters within common knowledge and experience, and not matters on which the testimony of experts with specialized insurance knowledge is necessary. See Raines a Maughan, 312 Ga. App. 303, 307-308 (718 SE2d 135) (2011). Accordingly, expert opinions produced by Harlan’s Estate from an attorney and a retired insurance company employee that Liberty Mutual acted in bad faith or was negligent do not create an issue of fact. Even assuming that the issue of whether an insurer acted in bad faith or negligently in failing to accept a settlement offer may in some cases require the testimony of experts with specialized knowledge of insurance matters, “when the issues concerning a professional’s conduct are not of a complicated nature, and a violation [or the absence of a violation] is established by clear and palpable proof, expert testimony is not required.” Ga. Real Estate Appraisers Bd. v. Krouse, 299 Ga. App. 73, 77 (681 SE2d 737) (2009).


author: Boggs, Judge.

text:
    A13A0312, A13A0313.
    LEE et al. v. CHOI; and vice versa.
    (744 SE2d 871)
   Boggs, Judge.

Following a jury trial in this dispute involving alleged breach of contract and breach of fiduciary duty, both parties appeal. In Case No. A13A0312, Ki Tae Lee, individually and as executor of the estate of her deceased husband, John Blackwell, (hereinafter “the Black-wells”) appeals arguing that a contract considered by the jury was unenforceable, and that the trial court erred in failing to give requested jury instructions. In Case No. A13A0313, Se 111 Choi appeals, arguing that the trial court erred in denying his motion for a directed verdict on the Blackwells’ claim for breach of fiduciary duty and in entering two separate judgments. For the following reasons, we reverse in Case No. A13A0312 and affirm in Case No. A13A0313.

Construed in favor of the verdict, the record reveals that in 1996, John Blackwell was seriously injured in an automobile accident. Blackwell’s wife was Korean and spoke little English, and needed assistance communicating with Blackwell’s doctors. In late 1996 or early 1997, the Blackwells hired Choi as an interpreter. In his testimony, Choi explained that the wife needed help to “establish her household” and that she asked him to help her take care of Blackwell. Choi moved into the Blackwell home, and while he did not receive pay, the Blackwells provided him with a bedroom and an office, food, a computer and cell phone, health insurance, and a car. The Blackwells told him he “will be taken care of, no need to worry about jobs; we will be taking care of you.”

At some point, Choi began assisting with the family’s finances, including the payment of utilities and other expenses. He was also involved in preparing the family’s income taxes and managing Blackwell’s care, including ensuring that he received Medicare benefits. Choi also cared for the Blackwells’ son, taking him to various activities and attending conferences with his teachers. In 2001, Blackwell executed a power of attorney naming his wife as attorney-in-fact, and naming Choi as her successor in the event the wife was unable to serve. The power of attorney provided authority for bank, business, real property, personal property, tax, and insurance transactions, borrowing money, the commencement and prosecution of disputes, and granted access to safe deposit boxes.

At some point in 2005, Choi testified that he requested $200,000 from the Blackwells because he overheard a conversation involving Blackwell’s wife that made him question her “commitment about the promises that she made” to “support [him] for [his] life.” The Black-wells agreed instead to open a joint investment account naming Choi and the wife as the account holders. The account was funded with $100,000 from the Blackwells’ trust account. The Blackwells agreed that Choi could keep for himself half of any earnings made from investing the $100,000.

In 2008, Choi contacted an attorney to assist him in formalizing the “verbal lifetime support” he claimed was promised to him by the Blackwells, but no formal agreement was reached at that time. In 2009, the parties signed an agreement “to support Choi for his lifetime.” This agreement was signed by Choi and Blackwell’s wife who also signed for Blackwell as his attorney-in-fact.

In 2010, Blackwell’s wife fired Choi after he returned from a trip with his niece. Afterward, on June 6, 2010, the parties signed an agreement in which the Blackwells agreed to pay Choi “for the work CHOI has done for Blackwell.” This agreement was signed by Choi and Blackwell’s wife. The two also signed this agreement for Blackwell as his attorneys-in-fact. Around the same time, the Blackwells placed a “hold” or “freeze” on the joint investment account, but when the hold was lifted, Choi withdrew the $49,000 remaining and deposited it into his own personal banking account.

In July 2010, Choi filed a complaint for breach of the 2009 and 2010 agreements, breach of the duty of good faith and fair dealing, promissory estoppel, reimbursement for certain payments, declaratory judgment, and attorney fees. The Blackwells answered, asserted affirmative defenses, and counterclaimed for conversion and breach of fiduciary duty.

The Blackwells moved for summary judgment on the 2009 and 2010 agreements, but the motion was denied, and the case proceeded to trial. Midway through the trial, the court granted a directed verdict in favor of the Blackwells on the 2009 agreement finding that there was no mutual consideration and that the agreement was vague and uncertain. The court also granted the Blackwells a directed verdict on Choi’s claims for breach of duty of good faith and fair dealing and promissory estoppel. The court denied the Blackwells’ motion for a directed verdict with respect to the 2010 agreement and the declaratory judgment.

The jury found in favor of Choi on his breach of contract claim based upon the 2010 agreement (and the claim for reimbursement) and awarded him $450,000, and $80,880.10 in attorney fees, but found in favor of the Blackwells on their breach of fiduciary duty claim, awarding them $49,000. The jury found in favor of Choi on the Blackwells’ claim for conversion and denied their claim for punitive damages. The trial court entered a judgment accordingly.

Case No. A13A0312

1. The Blackwells contend that the trial court erred in denying their motion for a directed verdict on the 2010 agreement. We agree. That agreement, signed by Choi as attorney-in-fact for Blackwell, provided in relevant part:

WHEREAS, BLACKWELL desire to express in writing their agreement [sic] to pay CHOI minimum of $450,000.00 immediatly [sic] for the work CHOI has done for Blackwell. Now with this payment all previous agreements and wills are null and void between two parties. CHOI is willing to provide service in the future if acceptable working condition is provided.

The Blackwells argued that “work that has been done” is insufficient consideration, and that other language of the agreement exemplifies only an “unenforceable agreement to agree.” The trial court ruled: “the fact that Mr. Choi gave up his right to any other lawsuits or any prior action is consideration for which that could be enforceable.” But this agreement did not provide that Choi would give up the right to other lawsuits or prior action. Rather, the agreement purported to provide as consideration “the work Choi has done for Blackwell,” and merely provided that “all previous agreements and wills are null and void.”

With regard to “the work Choi has done for Blackwell,” it is well-settled that “past consideration will not support a subsequent promise.” (Citation omitted.) Whitmire v. Watkins, 245 Ga. 713, 714 (267 SE2d 6) (1980). See Burns v. Dees, 252 Ga. App. 598, 604 (1) (a) (i) (557 SE2d 32) (2001) (past consideration cannot support the existence of a contract). Therefore, an agreement to pay Choi for work he has already done is unenforceable. See O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 327 (1) (514 SE2d 669) (1999) (contract to pay salary for services already rendered lacks consideration).

The only possible consideration remaining under the 2010 agreement is that “all previous agreements and wills are null and void.” Choi argues that this provision includes the 2009 agreement, the oral agreement under which Choi claimed that the Blackwells promised him lifetime support, his will “leaving everything” to Blackwell’s wife, and a “Korean agreement.” The trial court found the 2009 agreement unenforceable because it lacked mutual consideration and was vague and uncertain. Any oral agreement to provide Choi “lifetime support” is unenforceable on this same basis. There is no indication of what was to be encompassed in “lifetime support” and no explanation how it was to be provided. Any such promise without any further particularity fails to support an enforceable contract. See, e.g., Reuben v. First Nat. Bank of Atlanta, 146 Ga. App. 864, 866 (247 SE2d 504) (1978) (promise to make construction loans without further particularity unenforceable). Therefore, the 2009 agreement and promise of lifetime support do not provide consideration for the 2010 agreement.

With regard to the will, the record shows that in 2009 Choi executed a will which named Blackwell’s wife as the “Personal Representative of [the] Will” and the sole beneficiary. If the will was null and void pursuant to the 2010 agreement, the loss of the wife’s rights under the will could not be consideration for her and her husband’s obligation to pay Choi $450,000. See Tillinghast v. Banks, 14 Ga. 649, 652 (1854) (“A valuable consideration consists in some right, interest, profit, or benefit accruing to the party who makes the contract; or some forbearance, detriment, loss, responsibility or act, labor or service, on the other side. [Cit.]”). The fourth agreement Choi relies upon as consideration, a “Korean agreement,” is unenforceable because it contains no mutual exchange of promises, but rather only provided what would occur if Choi left the Blackwell home. See OCGA § 13-3-42 (a) (“[t]o constitute consideration, a performance or a return promise must be bargained for by the parties to a contract”).

Because the agreements Choi relies upon either are unenforceable or cannot provide consideration for the payment of $450,000, the 2010 agreement is itself unenforceable as a matter of law and should not have been submitted for the jury’s consideration. See Fellows v. All Star, 272 Ga. App. 262, 266-267 (3) (612 SE2d 86) (2005). The trial court therefore erred in denying the Blackwells’ motion for directed verdict on Choi’s claim for breach of the 2010 agreement. See id.

2. The Blackwells’ remaining enumeration is moot in light of our holding in Division 1.

Case No. A13A0313

3. Choi contends that the trial court erred in denying his motion for a directed verdict on the Blackwells’ claim for breach of fiduciary duty based upon Choi’s withdrawal of the $49,000 remaining in the joint account he held with Blackwell’s wife. He argues that there was no fiduciary duty owed to Blackwell’s wife with respect to the joint account, and that he did not breach any fiduciary duty owed to the Blackwells because he “had every right to withdraw the funds in the Joint Account set up for his benefit.” He argues further that there were no damages because he had an equal right to the funds. “We must affirm the denial of a directed verdict if there is any evidence to support the jury’s verdict, and in conducting this analysis we must construe the evidence in the light most favorable to the party who prevailed in the court below.” (Citation omitted.) Lee v. Swain, 291 Ga. 799, 800 (1) (733 SE2d 726) (2012).

The Blackwells alleged that Choi breached his fiduciary duty pursuant to the power of attorney he had over Blackwell’s affairs by acting contrary to Blackwell’s instructions by withdrawing the funds for his own use. The evidence showed that Choi was the successor agent of Blackwell in the event Blackwell’s wife was unable to serve. Choi accepted the appointment acknowledging that he owed Blackwell “a duty of loyalty and good faith,” and that he must use the powers granted to him only for the benefit of Blackwell. He also acknowledged that he “must protect and conserve, and exercise prudence and caution in [his] dealings with, [Blackwell’s] funds and other assets.”

The $100,000 investment account was funded from Blackwell’s trust account (with no contribution from Choi as he admitted), and was opened in the name of both Blackwell’s wife and Choi. The Blackwells testified that the parties agreed to allow Choi to use the account for investment purposes and that Choi could keep half of any earnings he made from investments. The evidence showed that by 2006, Choi had lost half of the funds in trading. He then withdrew the remaining $49,000 of the initial investment of $100,000 after his employment was terminated and deposited it in his personal account.

The evidence showed further that Choi had access to the Black-wells’ financial information and was in a confidential relationship with them based upon his duties as an interpreter and assistant. Choi himself explained that he was the “lifeline” for the Blackwells, and that he, over the course of many years, lived with the Blackwells and performed various duties, assisting the family with financial affairs, healthcare decisions, and decisions with regard to the Blackwells’ son.

A fiduciary or confidential relationship arises where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

Wright v. Apartment Investment and Management Co., 315 Ga. App. 587, 592 (2) (a) (726 SE2d 779) (2012), citing OCGA § 23-2-58. “Such relationship may be created by law, contract, or the facts of a particular case.” (Citation omitted.) Wright, supra.

The evidence presented was sufficient to show that Choi had a fiduciary duty to Blackwell pursuant to the power of attorney, see, e.g., Hodges v. Callaway, 279 Ga. 789, 794 (3) (621 SE2d 428) (2005), and also had a fiduciary duty to both Blackwells pursuant to his relationship with them, in which he was in a position of trust and confidence, was entrusted with financial responsibility and authority, and was privy to personal information. See Wright, supra, 315 Ga. App. at 592 (2) (a); Benson v. McMillan, 261 Ga. App. 78, 81-82 (1) (581 SE2d 707) (2003) (fiduciary relationship between employee and employer where employee was entrusted with financial responsibility and authority). And because there was evidence presented that the Blackwells intended for Choi to be entitled to only half of the earnings made from the initial $100,000 investment, and not to any portion of the $100,000, there was sufficient evidence to support the jury’s conclusion that Choi breached his fiduciary duty to both Blackwell and his wife in withdrawing the remaining $49,000 in the investment account, and that he was not entitled to retain those funds.

4. Choi’s remaining enumeration is moot in light of our holding in Division 1.

Judgment affirmed in CaseNo.A13A0313. Judgment reversed in Case No. A13A0312.

Doyle, P. J., and McFadden, J., concur.

On Motion for Reconsideration.

Choi argues that the 2010 agreement was a settlement agreement for which the compromise of a disputed claim is valid consideration. He points to parol evidence to establish that the parties intended the document as a settlement agreement. But “in construing a contract, courts ‘must look to the four corners of the document’ and cannot consider parol evidence unless there is an ambiguity that cannot be resolved by employing the rules of contract construction.” DeKalb County v. City of Decatur, 297 Ga. App. 322, 325 (677 SE2d 391) (2009). Choi makes no argument the agreement is ambiguous, and we find no ambiguity.

The 2010 agreement provided in relevant part that the parties wished to

express in writing their agreement to pay CHOI minimum of $450,000 immediately for the work CHOI has done for Blackwell. Now with this payment all previous agreement and wills are null and void. . . . CHOI is willing to provide service in the future if acceptable working condition is provided.

There is no language in the document revealing a disputed claim or disagreement, and the document was not labeled as such. The cases cited by Choi are distinguishable. Compare, e.g., Matrix Financial Svc. v. Dean, 288 Ga. App. 666, 666-667 (1) (655 SE2d 290) (2007) (physical precedent only) (pursuant to settlement agreement entered into following foreclosure, lender agreed to reduce the amount borrower owed under the loan and to stay the dispossessory action); Rogers v. Demoteguin, 193 Ga. App. 480, 482-483 (1) (388 SE2d 10) (1989) (agreement was reached that plaintiff would forbear breach of contract suit in return for defendant to complete remodeling work); Berry v. Atlanta Outdoor Advertising, 164 Ga. App. 541, 542 (298 SE2d 268) (1982) (“Forbearance to sue on an obligation that is due is a valid consideration sufficient to support a contract. The agreement to forbear must be for a specific period of time. [Cits.]”).

The 2010 agreement unambiguously attempts to put to writing some prior oral agreement that Choi would be paid for the work he performed, revoking all previous agreements. It is therefore simply an employment contract, albeit made after the fact, that fails for lack of consideration. Because we are required to construe only the four corners of the 2010 agreement which unambiguously establish a contract, and not a settlement agreement, Choi’s argument on motion for reconsideration fails.

Decided June 19, 2013

Reconsideration denied July 25, 2013

Berman, Fink & Van Horn, Charles H. Van Horn, Kristin N. Zielmanski, for appellants.

Tom Pye, for appellee.

Motion for reconsideration denied.

       The record also contains a 2007 “Power of Attorney’ appointing Choi as Blackwell’s attorney-in-fact. But Blackwell did not sign this power of attorney; it was signed by witnesses only.

       It provided in part that if Choi left the Blackwell household, he would not sue and would not ask for “money, house or anything equivalent.”


author: McMlLLIAN, Judge.

text:
    A13A0691.
    BARMORE v. THE STATE.
    (746 SE2d 289)
   McMlLLIAN, Judge.

Following a jury trial, Ricky Lee Barmore was convicted of three counts of child molestation and three counts of sexual battery. He filed a motion for new trial, which the trial court denied. On appeal, Barmore contends his trial counsel was ineffective for failing to move to strike a juror for cause, failing to use a peremptory strike on the same juror, and failing to object to a witness’s improper bolstering testimony. Finding no error, we affirm.

Viewing the facts in the light most favorable to the verdict, on the Friday afternoon of August 20,2010, Barmore pickedup thirteen-year-old K. R., the victim, from her home and then went to pick up his thirteen-year-old and eight-year-old daughters at the home of his ex-wife, Beverly Pair. K. R. and the thirteen-year-old daughter were good friends. The three girls were to spend the weekend with Bar-more and attend a birthday pool party on Saturday. Before the girls left with Barmore, Pair warned her thirteen-year-old daughter to watch out for Barmore around K. R. and not to leave K. R. alone with Barmore. On the way to Barmore’s residence, which is a camper behind his mother’s home, Barmore and the three girls ate dinner at a Mexican restaurant and then went to the grocery store, where Barmore purchased some alcoholic beverages.

At some point later in the evening while in Barmore’s camper, Barmore gave his thirteen-year-old daughter and K. R. Mike’s Hard Lemonade, beer and vodka while playing the drinking game “Quarters” with them. The girls eventually went to bed with the thirteen-year-old daughter and K. R. sharing a bed in the back bedroom and the other girl sleeping on the couch. While the two girls were sleeping in the bed, Barmore came into the room, lay next to K. R. and began to touch her breasts. He then moved his hand down toward her groin area. K. R., then pretending to be asleep, rolled over on her stomach away from Barmore. Barmore attempted to enter her pants from the rear trying to again get to the groin area. K. R. then jerked away, and Barmore stopped and left the room. The daughter did not wake up during the incident.

K. R. told the thirteen-year-old daughter what had happened the following morning via text message so that her younger sister would not hear, and both girls began crying. The thirteen-year-old daughter later called Pair who stopped what she was doing and came to the pool party to get the girls. The girls got into Pair’s vehicle without telling Barmore and left. Pair did not take K. R. directly home, but instead, took K. R. to Pair’s home where she questioned her about the incident, and K. R. stayed the night at Pair’s home. Pair took K. R. back to her home the following day.

Upon learning of what happened, K. R.’s mother contacted the Whitfield County Sheriff’s Office, which began an investigation. As protocol, the Sheriff’s Office arranged for Katie Walker, forensic interviewer for The Friends of the GreenHouse, Inc. (the “GreenHouse”) to interview K. R. about the incident.

The GreenHouse is a Whitfield County child advocacy corporation with Charles Eicholtz as the president of the board of directors. Charles Eicholtz also served as the foreperson on the jury that convicted Barmore. According to Brenda Hoffmeyer, Secretary of the GreenHouse board, the GreenHouse was formed under a prior Whitfield County district attorney and is a government agency under the Victim Assistance Program of the district attorney’s office. The board is the financial and fund-raising arm of the GreenHouse while the district attorney’s office operates the center including all administrative functions, staff, policies and procedures. All GreenHouse employees are employees of the district attorney’s office. Generally, board meetings are informational where discussions involve managing the center, managing staff, and no active voting takes place. Board members, including Eicholtz, are not compensated in any way, and board members are not involved in the investigations conducted by the GreenHouse.

During voir dire, Eicholtz acknowledged being the president of the board for GreenHouse. Defense counsel inquired about his position, to which Eicholtz replied, “oversight of operations of The GreenHouse.” According to Eicholtz, oversight included hiring and interviewing standards, but he did not say the board actually did the hiring or interviewing. Eicholtz also acknowledged knowing Stephen Spencer, the prosecutor in the case, Katie Walker who interviewed K. R. at the GreenHouse, and Glenn Swinney, an investigator in the case. However, Eicholtz said even though he worked with law enforcement often, he could be an impartial juror.

At trial, J. S., Pair’s older, biological daughter and Barmore’s stepdaughter, testified to four prior occasions in which Barmore molested her as a child while she lived with Pair and Barmore during their marriage. J. S. only told her mother about one of the incidents, which Pair cites as the reason for warning her thirteen-year-old daughter about leaving K. R. alone with Barmore. Neither J. S. nor Pair ever called the police about the incidents related to J. S.

Barmore asserts that the trial court erred in denying his motion for new trial on the ground that his counsel was ineffective. In order to show that counsel provided ineffective assistance, it must be shown that his performance was deficient and that the deficient performance prejudiced Barmore. Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). “A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (Citation and punctuation omitted.) Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011). Barmore must overcome a strong presumption that counsel’s action fell within the wide range of professional assistance. Shields v. State, 307 Ga. App. 830, 831 (1) (a) (706 SE2d 187) (2011).

1. We will first address Barmore’s contention that his trial counsel was ineffective when he did not move to strike juror Charles Eicholtz for cause. Under OCGA § 15-12-164 (d),

[t]he court shall also excuse for cause any juror who from the totality of the juror’s answers on voir dire is determined by the court to be substantially impaired in the juror’s ability to be fair and impartial. The juror’s own representation that the juror would be fair and impartial is to be considered by the court but is not determinative.

A juror can be disqualified for cause only if it can be shown that an opinion held by the potential juror is fixed and definite such that the potential juror would be unable to set aside the opinion and decide the case on the evidence or the court’s charge upon the evidence. Rocha v. State, 248 Ga. App. 53, 53 (1) (545 SE2d 173) (2001). In the context of an ineffective assistance of counsel claim, the question is whether “[considered from the perspective of voir dire and not from hindsight,” counsel’s failure to move to strike the juror for cause was objectively unreasonable. Phillips v. State, 277 Ga. 161, 162 (587 SE2d 45) (2003).

Barmore argues that because Eicholtz was the president of the board of the GreenHouse, which interviewed the victim in this case, Eicholtz should be considered in essence an employee of the district attorney’s office and stricken for cause. See Beam v. State, 260 Ga. 784, 785 (2) (400 SE2d 327) (1991) (holding that it was error to fail to strike a juror for cause who was a full-time employee of the district attorney’s office). However, Beam has been limited to full-time employees of the district attorney’s office, and the Supreme Court and this Court have refused to extend Beam to other contexts even when the juror knew members of the district attorney’s office or had a professional relationship with them. See Shiver v. State, 276 Ga. 624, 625 (2) (581 SE2d 254) (2003) (not error to refuse to strike for cause father of assistant district attorney in the same prosecutor’s office); Berry v. State, 302 Ga. App. 31, 32-33 (1) (690 SE2d 428) (2010) (friend of district attorney who also did contract work for the district attorney’s office was not disqualified); Marryott v. State, 263 Ga. App. 65, 68 (3) (587 SE2d 217) (2003) (court refused to strike for cause volunteer of district attorney’s Victim Assistance Program noting juror was not compensated for work).

Unlike the juror in Beam, Eicholtz was president of the board of GreenHouse, a separate, duly formed corporation, operating under the district attorney’s Victim Assistance Program. Neither GreenHouse nor the district attorney’s office compensates Eicholtz for his work as president of the board of GreenHouse, and Barmore produced no evidence either during the trial or at the motion for new trial hearing that Eicholtz had any day-to-day operational role within GreenHouse or worked with victims in any way. Accordingly, we find that Eicholtz was not subject to be stricken for cause solely because of his position at GreenHouse. See Berry, 302 Ga. App. at 32-33 (1); Marryott, 263 Ga. App. at 68 (3).

Moreover, while Eicholtz knew several individuals involved with the case professionally, his acquaintance with members of the district attorney’s office and law enforcement is not sufficient to strike him for cause. See Shiver, 276 Ga. at 625 (2). And Eicholtz unequivocally stated during voir dire that he could be impartial. Accordingly, Barmore has failed to show that Eicholtz had a fixed and definite opinion or was not able to decide the case on the evidence and should have been stricken for cause. Because Barmore has not shown that an effort to strike Eicholtz would have been successful, trial counsel was not deficient for failing to move to strike him for cause. See Phillips v. State, 277 Ga. 161, 162 (587 SE2d 45) (2003); Ware v. State, 321 Ga. App. 640 (3) (742 SE2d 156) (2013).

2. Barmore further contends that trial counsel was ineffective for not using one of nine peremptory strikes against Eicholtz. Barmore claims that had his counsel properly counted the number of peremptory strikes he had used, he would have saved one for Eicholtz instead of mistakenly using all nine on other potential jurors. In a non-death penalty case, each side may use nine peremptory strikes of jurors. OCGA § 15-12-165. To show counsel was deficient in the use of peremptory challenges, Barmore must overcome a strong presumption that counsel conducted jury selection in a manner “within the wide range of professional assistance.” See Shields, 307 Ga. App. at 831 (1) (a). “Which, and how many, prospective jurors to strike is a quintessential strategic decision.” Id. at 832 (1) (a); see also Vega v. State, 285 Ga. App. 405, 407 (2) (a) (646 SE2d 501) (2007) (“Trial counsel’s decisions about which jurors to strike and which to keep are tactical.”).

Applying these standards, we find that Barmore has not overcome the strong presumption that his counsel’s decisions on what prospective jurors to strike and which to keep were anything other than strategic. The trial transcript indicates that when the trial judge suggested to Barmore’s counsel that he had used all nine of his strikes, he replied that he had only used eight. But as the trial court indicated to counsel, and as the record makes clear, the defense actually had used all nine of its strikes at that time, and thus had no strike left for Eicholtz. Nevertheless, Barmore’s counsel admitted at the hearing on the motion for new trial that he had valid tactical and strategic reasons for the nine strikes he made. And although counsel indicated that he had intended to strike Eicholtz, but miscounted his strikes, the test for ineffective assistance of counsel “calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” (Citation omitted.) Brown v. State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011). “Thus, a tactical decision will not form the basis for an ineffective assistance of counsel claim unless it was so patently unreasonable that no competent attorney would have chosen it. McKenzie v. State, 284 Ga. 342, 347 (667 SE2d 43) (2008).” (Punctuation omitted.) Id. We cannot say under the circumstances of this case that a reasonable trial counsel who properly counted his strikes would have struck the jury in a different way. See Shields v. State, 307 Ga. App. at 832 (finding that trial counsel’s decision to exercise only five peremptory challenges in mistaken belief that he had no additional challenges did not amount to deficient performance, because “it does not follow that this misunderstanding necessarily affected his strategic decision to strike only five prospective jurors”). Accordingly, the trial court properly denied Barmore’s motion for new trial on this ground.

3. Barmore also contends that trial counsel provided ineffective assistance by failing to object when witness Beverly Pair improperly bolstered the testimony of K. R. and J. S., the similar transaction witness. In the first instance, Pair was describing a conversation with Barmore about K. R.’s allegations:

PAIR: I just said, I know what you done, I know everything you done.
THE STATE: You said that to him?
PAIR: Yeah. I know everything you done. I didn’t tell him what I knew. And I said, They wouldn’t lie to me, they wouldn’t lie to me. And he told me that they were crazy, he hadn’t done anything, that [the younger daughter] must have gotten off of the couch asleep with him and got in the bed and touched [K. R.].

Later, on cross-examination, Pair testified to a conversation she had with J. S. about a prior alleged instance of molestation:

DEFENSE COUNSEL: You never told [J. S.] that Ricky is sorry and blamed [it] on Jager[meister]?
PAIR: No. He told her that. She said all she wanted was him to admit the truth, and I told her I knew she was telling the truth,... But she said, Mom, I want him to admit it in front of me and — when he admits it to you, I want to be there and I want him to do it in front of me and I want him to apologize and admit it, and he did.

“It is well established that credibility of a witness is a matter for the jury, and a witness’s credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Citation omitted.) Strickland v. State, 311 Ga. App. 400, 403 (715 SE2d 798) (2011). Although Pair improperly bolstered the testimony of K. R. and witness J. S., Barmore must do more than show that counsel failed to object. “To show that the performance of his lawyer was deficient, [Barmore] must prove that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in light of prevailing professional norms.” (Citations omitted.) Young v. State, 292 Ga. 443, 445 (3) (738 SE2d 575) (2013); see also Holmes v. State, 293 Ga. 229 (744 SE2d 701) (2013).

Here, the defense strategy was that Pair had orchestrated the claims against Barmore as retribution for his conduct in their tumultuous relationship and that Pair was therefore not credible as a witness. Defense counsel pursued this line of questioning directly after Pair bolstered J. S.’s testimony. Because objecting to Pair’s bolstering would be inconsistent with the strategy of showing that Pair was not to be believed at all, we cannot conclude that the decision to cross-examine Pair, rather than to object to the bolstering, was an unreasonable trial strategy. See Rawls v. State, 315 Ga. App. 891, 896 (4) (730 SE2d 1) (2012) (no ineffective assistance when counsel failed to object to bolstering due to trial strategy to show that witnesses rushed to judgment); Damerow v. State, 310 Ga. App. 530, 537 (714 SE2d 82) (2011) (“Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy.”) (citation and punctuation omitted). Accordingly, Barmore has failed to overcome the strong presumption that his trial counsel’s performance fell within the range of professional norms.

Moreover, even if counsel had objected to the improper bolstering, Barmore has failed to show a reasonable probability that the testimony so prejudiced his defense that it affected the outcome of the trial. K. R.’s account of the incident remained consistent throughout — from her initial outcry to her friend and to Pair, her reporting of the incident to her mother, and the interview with the forensic examiner. Barmore also had a full opportunity to cross-examine K. R. at trial. And Barmore’s counsel had a full opportunity to explore the inconsistencies between J. S.’s and her mother’s recollections of the similar transactions on cross-examination, and he produced a witness who allegedly heard J. S. recanting her accusations against Barmore. The trial court was also diligent in instructing the jury on the limitations of similar transaction evidence. Accordingly, under these circumstances, we find no error in denying Barmore’s motion for new trial on this ground. See Strickland, 311 Ga. App. at 404 (bolstering did not prejudice defense when victim’s account remained consistent and defendant had opportunity to cross-examine her); Alford v. State, 320 Ga. App. 523, 529 (738 SE2d 124) (2013) (single, unresponsive remark not prejudicial when victim’s account remained consistent, defendant had full opportunity to test her credibility on cross-examination, and another witness testified to similar incidents).

Decided July 15, 2013

Reconsideration denied July 25, 2013

Bernard S. Brody, for appellant.

Herbert M. Poston, Jr., District Attorney, Benjamin B. Kenemer, Susan L. Franklin, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

        Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013).

       Trial counsel admitted in his testimony at the motion for new trial hearing that at the time of voir dire, he did not know the GreenHouse was formed by and under the district attorney's office, believing the GreenHouse to he a private organization that worked closely with the district attorney’s office.

       In the motion for new trial, Barmore also pointed to other testimony in which trial counsel had objected to the bolstering as speculative, but failed to seek curative instructions after the objection was sustained. Barmore has not argued this error on appeal, so it is considered abandoned. See Wynn v. State, 322 Ga. App. 66 (744 SE2d 64) (2013); Court of Appeals Rule 25 (c) (2).

       The trial court gave the limiting instructions on similar transactions three times during the course of the trial — before Pair and J. S. testified and in the charge after the close of the evidence.