text:
    A15A2068.
    AVERY v. GRUBB et al.
    (784 SE2d 817)
   BARNES, Presiding Judge.

This appeal was brought from the trial court’s dismissal of the complaint filed by appellant Victoria Ann Avery, individually and as remainder beneficiary of VM Trust #1 and third-party beneficiary of G&M International, LLC (hereinafter “Avery”), against John G. Grubb, Jr., Dale Schwartz, and Snap Line Services (collectively “appellees”). Upon our review, we affirm.

OCGA § 9-11-12 (b) (6) provides that an action can be dismissed upon the merits where the complaint fails to state a claim upon which relief can be granted. Dismissal is appropriate only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. We review the dismissal de novo, construing the complaint’s allegations and all possible inferences therefrom in favor of the plaintiff.

(Citation and punctuation omitted.) Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 297 Ga. App. 28, 29 (676 SE2d 428) (2009).

Generally, affirmative defenses are sustained by contents of the answer and thereby convert a motion to dismiss into a judgment on the pleadings pursuant to OCGA § 9-11-12 (c). Murrey v. Specialty Underwriters, 233 Ga. 804, 807-808 (213 SE2d 668) (1975). However, under the Federal Rules of Civil Procedure,

[r]elease is an affirmative defense... and such a defense will support a motion to dismiss . . . where it is (1) definitively ascertainable from the complaint and other sources of information that are reviewable at this stage, and (2) the facts establish the affirmative defense with certitude [.]

Citibank Global Markets, Inc. v. Santana, 573 F3d 17, 23 (1st Cir. 2009). “Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority.” Wellstar Health Systems v. Kemp, 324 Ga. App. 629, 638 (2), n. 19 (751 SE2d 445) (2013).

So construed, the record reveals that Grubb served for 20 years as the trustee of VM Trust #1 (the “Trust”), and that Avery’s ex-husband, G. V. Matthews, is the lifetime beneficiary of the Trust. Avery was named as the sole grantor of the Trust, with the authority to remove the trustees at any time for any reason. In May 2013, after Avery and Matthews divorced, Avery, as grantor of the Trust, and suspecting Grubb of undertaking a fraudulent scheme to defund the Trust, removed him as the trustee for alleged breach of his fiduciary duties. Per the provisions in the Trust, Schwartz was appointed as the successor trustee. The Trust provided that if neither Grubb nor Schwartz could serve, then a trust appointment committee consisting of Grubb, Schwartz, and Riley R. Taylor would name a successor. It further provided that if any member of the appointment committee could not perform that task, then Avery, as the grantor, would take the committee member’s place.

In June 2013, Avery filed a complaint in the Superior Court of Fannin County for a temporary restraining order and injunctive relief against Grubb, seeking to remove him from the Trust’s appointment committee, so that she could serve in that capacity. Avery maintained that Grubb had breached his fiduciary duties by, among other things, awarding himself a 10 percent ownership interest in companies owned and funded by the Trust, personally profiting from the sales of various Trust properties, and improperly serving as counsel to the Trust’s business ventures without informing Avery. One of the aforementioned companies was G&M International, which was managed by Matthews and owned 90 percent by the Trust and 10 percent by Grubb, and whose net proceeds on average of $150,000, were “the sole income producing asset of the Trust.”

Avery maintained that Grubb’s presence on the appointment committee prevented her from selecting a trustee who would “administer the affairs of the Trust properly’ because of his relationship with Schwartz. Avery complained that Schwartz “will not vote for or even consider any nominee submitted by [Avery,] . . . [and] he intends to liquidate the Trust’s assets and pay all of the proceeds over to the lifetime beneficiary, . . . Matthews.”

On July 26, 2013, Snap Line Services, Inc. was incorporated as a Georgia Corporation with Grubb as the listed registered agent and incorporator. On August 15, 2013, G&M sold its “furniture, fixtures, and equipment (including computer and telecommunications equipment)” to Snap Line for $9,500. The Bill of Sale was signed by Matthews, as manager of G&M International.

On October 24, 2013, Avery and Grubb entered into an agreement

in settlement and compromise of any claims or disputes AVERY and her respective heirs, agents, estates, servants, successors, administrators and assigns (collectively “RELEASORS”), may have against GRUBB, John G. Grubb, Jr. P.C., and Continental Casualty Company (“CNA”), any related CNA entity, as well as, each of their respective estates, heirs, executors, successors in interest, assigns, predecessors, parent companies, suborders, subsidiaries, entities, business units, affiliates, directors, members, managers, officers, partners, representatives, shareholders, attorneys, independent contractors, subcontractors, employees, insurers, underwriters, agents, subrogates, assigns, companies, leasers, lessees, franchisees, and servants whether stated herein or not (collectively “RELEASED PARTIES”). (Emphasis supplied.)

The agreement provided that, in consideration for the payment of $10,000 to Avery, she would dismiss the suit against Grubb, and would

expressly RELEASE, ACQUIT, and DISCHARGE RELEASED PARTIES, and all of their present and former partners, employees, agents, attorneys, insurers, heirs, successors, and assigns, and each of them, from any and all actions, causes of action, damages, demands, and claims of whatsoever kind or nature, whether known or unknown, whether in law or in equity, whether direct or indirect, arising from any acts, omissions, occurrences, or facts that relate to or are in any way connected with the [Fannin County] Lawsuit or the allegations contained therein.

The agreement further provided that in consideration for the release and dismissal of the suit, Grubb would resign from the appointment committee of the Trust. The “Entire Agreement” clause stipulated:

This Agreement constitutes the entire Agreement of the Parties, and supersedes all prior and contemporaneous negotiations and agreements, oral or written . . . [and] [n]o representations, oral or written, are being relied upon by the parties in executing this Agreement other than the express representations of this Agreement.

Avery dismissed Schwartz as trustee on October 23,2013, and on October 31, 2013, the appointment committee consisting of Avery, Schwartz, and a third member confirmed a new trustee, William Hadsell. In early November 2013, Hadsell visited the offices of G&M International and met with Matthews, who purportedly told him that the company no longer existed and “that all of the business is now conducted by a company known as Snap Line Services.” Hadsell resigned as trustee since “the Trust no longer own[ed] an income producing asset other than . . . real estate.” On November 14, 2013, the appointment committee appointed Avery as trustee.

Approximately one year later, on October 15, 2014, Avery filed a complaint for rescission of the sales contract between Snap Line and G&M International, for damages for imposition of constructive trust, and for injunctive relief in Forsyth County against Grubb, Schwartz, and Snap Line. In the complaint, she alleged that Grubb and Schwartz had breached various fiduciary duties while trustees, including colluding with Matthews to defraud the trust by selling G&M’s tangible assets to Snap Line for $9,500. In addition to rescission of the sale between Snap Line and G&M International, Avery sought, among other things, the removal of Schwartz from the Trust’s appointment committee, and various damages. Avery later amended the complaint to add herself as a plaintiff in her capacity as trustee of the Trust, Matthews as a defendant, and to allege Georgia RICO violations, civil conspiracy, and tortious interference with business relation claims.

The appellees answered, denying liability, and Grubb and Schwartz asserted affirmative defenses of waiver and release based on the settlement agreement. On November 20, 2014, the appellees filed a motion to dismiss Avery’s complaints, contending, among other things, that Avery’s claims against Grubb and Schwartz failed as a matter of law because they had been waived and released by the settlement agreement, and that she had failed to state a viable claim against Snap Line. Thereafter, Avery filed a motion to have the settlement agreement declared void ab initio.

The trial court granted appellants’ motion to dismiss, finding that Avery lacked “standing to prosecute her claims against [Grubb]” because of the settlement agreement, and denied Avery’s motion to have the settlement declared void ab initio. This appeal ensued.

1. Avery first contends that the trial court erred in not ruling on the merits of her motion to have the settlement and release agreement declared void ab initio before ruling on the appellees’ motion to dismiss. She asserts that at the time of the negotiation of the agreement, she was unaware of Grubb’s participation in the liquidation of G&M International from the Trust’s assets, and that she would not have entered into the agreement to release Grubb from all liability had the liquidation been disclosed to her.

Grubb filed a motion to dismiss and several affirmative defenses based on the settlement agreement, including that Avery had released or waived any claims per the settlement agreement. He also maintained that Avery lacked standing either personally or as a trustee because of her release in the settlement agreement of any interest in G&M International, and because she had resigned her position as trustee of the Trust and had not been legally reinstated.

In response, Avery filed a motion to have the settlement and release agreement declared void ab initio, in which she claimed that Schwartz was not subject to the agreement’s release, and that Grubb’s release was obtained through acts of affirmative fraud, in that he had breached his fiduciary duties by, among other things, forming Snap Line as a conduit for the liquidated assets of G&M International.

At the hearing on Grubb’s motion to dismiss, with regard to the settlement agreement, the trial court held that, based on Avery’s allegations in the Fannin County complaint,

[Avery] should not have relied on anything that Grubb said. She should have known that, according to her, he was a bad guy. And for her to take the $10,000, and to release him and his successors, there was no justifiable reliance of any kind of representation that could form a cause for fraud here.

We find no error in the trial court’s denial of Avery’s motion to have the settlement and release agreement declared void ab initio. Likewise, we are not persuaded that its concurrent grant of Grubb’s motion to dismiss was procedurally barred, as maintained by Avery.

In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud. Critical to rescission is the tender of benefits, the prompt restoration or offer to restore whatever the complaining party received by virtue of the contract. A party seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so. Rescission or attempted rescission is a condition precedent even to bringing an action seeking rescission.

(Punctuation and footnotes omitted.) Dodds v. Dabs, Hickman, Hill and Cannon, LLP, 324 Ga. App. 337, 340-341 (1) (750 SE2d 410) (2013); see OCGA § 13-4-60 (“A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.”). “[E]quity will not decree the cancellation of an instrument where anything of value has been received until repayment is either made or tendered[.]” Taylor, Bean & Whitaker Mtg. Corp. v. Brown, 276 Ga. 848, 850 (2) (583 SE2d 844) (2003).

Here, although Avery contends that she did not find out about the Snap Line and G&M International transaction until after she signed the settlement and release agreement, she waited a year after the settlement agreement to file the present action for, among other things, Grubb’s alleged breach of fiduciary duty, fraud, and rescission of the Snap Line/G&M International bill of sale. Even though Avery may not have known about the Snap Line/G&M International transaction when she signed the agreement, she was informed about the sale less than one month later, in November 2013. The defrauded party must act “promptly.” OCGA § 13-4-60. Despite this knowledge, Avery did not offer or tender to Grubb the $10,000 received per the settlement agreement. She did not request rescission in her complaint, nor did she allege rescission was impossible.

Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.

(Citation omitted.) Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993).

While Avery argues that Grubb fraudulently induced her to enter into the settlement agreement, “[w]here the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which maybe based on the contract.” (Punctuation and footnote omitted). Meadow River Lumber Co. v. Univ. of Ga. Research Foundation, 233 Ga. App. 169, 173 (1) (503 SE2d 655) (1998). Thus, although Avery alleges fraudulent inducement to enter into the agreement, given her affirmance and the agreement’s express merger clause, there is no reliance absent a showing that Avery lacked knowledge of the contents of the agreement and, since the alleged representations were not stated in the agreement itself, the merger clause precludes a claim of fraud. See Spires v. Relco, Inc., 165 Ga. App. 4, 6 (2) (299 SE2d 58) (1983).

“Therefore, [Avery] cannot maintain [her] claim [ ] for fraud in the inducement based on active concealment [or] negligent misrepresentation.” Novare Group, Inc. v. Sarif, 290 Ga. 186, 190 (3) (718 SE2d 304) (2011).

2. Avery contends that the trial court erred in finding that Schwartz and Snap Line were released parties within the terms of the settlement agreement. We do not agree.

A release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general. The cardinal rule of construction is to determine the intention of the parties. Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it.

(Punctuation and footnotes omitted.) UniFund Financial Corp. v. Donaghue, 288 Ga. App. 81, 82 (653 SE2d 513) (2007). “[A] valid release may encompass an injury that is unknown at the time of its execution, if the possibility of such injury is known.” (Emphasis omitted.) Loyal v. Norfolk Southern Corp., 234 Ga. App. 698, 701 (507 SE2d 499) (1998).

The “General Release” which Avery executed pursuant to the settlement agreement provided, in pertinent part, that Avery would

RELEASE, ACQUIT, and DISCHARGE RELEASED PARTIES, and all of their present and former partners, employees, agents, attorneys, insurers, heirs, successors, and assigns, and each of them, from any and all actions, causes of action, damages, demands, and claims of whatsoever kind or nature, whether known or unknown, whether in law or in equity, whether direct or indirect, arising from any acts, omissions, occurrences, or facts that relate to or are in any way connected with the [Fannin County] Lawsuit or the allegations contained therein.

In dismissing Avery’s claim, the trial court held:

Having carefully considered the Complaint, Amended Complaint, Motion to Dismiss, and briefing materials, the Court has determined that . . . Avery lacks standing to prosecute her claims against the Defendants. Paramount to this determination is the parties’ Settlement and Release Agreement. . . . The Settlement and Release Agreement released Grubbs and his successors and assigns, among others “from any and all actions, causes of action, damages, demands, and claims of whatsoever kind or nature, whether known or unknown, whether in law or equity, whether direct or indirect, arising from any acts, omissions, occurrences, or facts that relate to or are in any way connected with the Lawsuit or the allegations contained therein.” ... Contrary to [Avery’s] assertions . .. Schwartz, as a successor trustee, is included in the release. . . . The Court accordingly finds that the Settlement and Release Agreement bars [Avery’s] causes of action as against Grubb and Schwartz. Moreover, because Grubb and Schwartz are alleged to have established Snap Line Services, Inc. in furtherance of their alleged fraudulent scheme, and Snap Line Services, Inc. could only act through Grubb and Schwartz, then the Settlement and Release Agreement further bars [Avery’s] causes of action as to Snap Line Services, Inc., as well.

Decided March 28, 2016.

W. Russell Hodges, for appellant.

Krevolin & Horst, Halsey G. Knapp, Jr.; Carlock, Copeland & Stair, Peter Werdesheim, for appellees.

The settlement agreement and release was clear and certain in its terms that Avery agreed that the released parties to the settlement and compromise of any claims or disputes included, “whether stated herein or not,” Grubb’s “companies,” “entities,” “business units,” and “affiliates.” Avery alleged in her complaint that Snap Line was formed by Grubb as part of a fraudulent scheme to defund the Trust. “As an artificial person, a corporation can act, and does act, alone through agents. It deals with other corporations and with natural persons by its agents; it can deal with the world in no other way.” (Citation and punctuation omitted.) Eckles v. Atlanta Technology Group, 267 Ga. 801, 803 (2) (485 SE2d 22) (1997). Clearly, in accordance with the principles of contract construction discussed above, Snap Line, which Avery maintained was formed by Grubb to facilitate a fraud, was a “released” party as contemplated by the agreement.

Likewise, the trial court did not err in finding that, as the successor trustee, Schwartz was also subject to release per the settlement agreement. The agreement specifically released Grubb’s “successors,” and as found by the trial court and undisputed by the parties, Schwartz was the successor trustee after Grubb was released. Although Avery contends that the agreement should be construed in the vein of a trust instrument and thus cannot relieve Schwartz of liability for a breach of a fiduciary duty, we have held that a release agreement entered into after the creation of the trust “does not meet the statutory definition of a trust instrument.” Heiman v. Mayfield, 300 Ga. App. 879, 882 (1) (686 SE2d 284) (2009) (decided under former OCGA§ 53-12-2).

Thus, it appears from the allegations of the complaint that Avery would not be entitled to relief on her claims under the facts as alleged. Accordingly, the trial court did not err in granting appellees’ motion to dismiss her claim pursuant to OCGA § 9-11-12 (b) (6).

Judgment affirmed.

McMillian, J., concurs. Ray, J., concurs in Division 1 and in judgment only as to Division 2.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A15A2077.
    I. A. GROUP, LTD. CO. et al. v. RMNANDCO, INC.
    (784 SE2d 823)
   Ray, Judge.

Following a jury trial on the issue of unliquidated damages in this action involving, inter alia, breach of fiduciary duty and related business torts, plaintiff-appellee RMNANDCO, Inc., was awarded $2.5 million jointly and severally against defendants-appellants I. A. Group, Ltd. Co., Stephan Fitch, and two other defendants (collectively “the four I. A. Group defendants”), $10 million in punitive damages against Fitch, plus post-judgment interest and costs. After the denial of their motions for new trial, I. A. Group and Fitch filed the instant appeal. They contend that the trial court erred in its jury instructions and jury verdict form because the jury should have been instructed on apportionment of damages rather than joint and several liability; in prohibiting them from challenging issues related to liability and damages; in admitting hearsay evidence of damages over objection; and in failing to rule on their motion for arbitration. For the reasons that follow, we reverse and remand the case for a new trial.

RMNANDCO sued the four I. A. Group defendants in 2010, claiming, inter alia, breach of fiduciary duty and fraud, later amending its complaint to allege violations of the Georgia Uniform Securities Act and the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO). In brief, RMNANDCO alleged that it was a one-third owner in I. A. Group, along with Fitch and CX5, and that the four I. A. Group defendants had usurped business opportunities and failed to make distributions to which RMNANDCO was entitled.

In ruling on a motion for sanctions based on allegations of discovery abuses, the trial court struck the four I. A. Group defendants’ answers, counterclaims, and also third-party complaints, and it entered a default judgment as to liability on all counts, leaving for trial the matter of unliquidated damages. At trial, a jury awarded $2.5 million in compensatory damages jointly and severally against the four I. A. Group defendants, as well as attorney fees. Finding specific intent to harm, the jury also awarded punitive damages of $10 million against Fitch. After trial, the four I. A. Group defendants retained new, separate counsel and filed separate motions for new trial, which were denied.

1. I. A. Group and Fitch first contend that the damages, which were awarded jointly and severally against all the defendants, cannot stand because the trial court was required to apportion damages pursuant to OCGA § 51-12-33. See generally Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, 336 Ga. App. 527 (785 SE2d 541) (2016) (applying OCGA § 51-12-33 in a business-related tort action). The I. A. Group and Fitch cast this as a challenge to the trial court’s jury charge and its use of the verdict form, both of which referenced joint and several liability. Finding error, we agree that damages should have been apportioned.

“When we review an allegedly erroneous jury charge, we apply a ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386, 398 (6) (740 SE2d 439) (2013). See also Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012) (recognizing preprinted jury verdict forms as part of jury instructions).

OCGA § 51-12-33 (b) provides, in pertinent part:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall. . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(Emphasis supplied.)

In the instant case, the parties filed a joint, proposed pretrial order and appended a verdict form stating that the four I. A. Group defendants would be jointly and severally liable for RMNANDCO’s damages in tort. Just days later, the four I. A. Group defendants filed a motion to amend the pretrial order, asking that the verdict form provide for apportionment of damages, which RMNANDCO followed with a motion in limine seeking to exclude evidence, argument, and testimony related to apportionment. The trial court, however, signed the original, unamended pretrial order on the same day the motion in limine was filed, thus rejecting the four I. A. Group defendants’ motion to amend. At trial, the trial court charged the jury, over objection, that any damages were to be awarded in a lump sum against the defendants.

Given the four I. A. Group defendants’ vigorous objections and prompt attempt to amend the pretrial order, we cannot agree with RMNANDCO’s contention that I. A. Group and Fitch induced this error. See OCGA § 5-5-24 (a), (b). See also Bolden v. Ruppenthal, 286 Ga. App. 800, 803 (2) (650 SE2d 331) (2007) (permitting amendments to pretrial orders within the trial court’s discretion). See generally Swanson v. State Farm Mut. Auto Ins. Co., 242 Ga. App. 616, 617 (1), n. 6 (530 SE2d 516) (2000) (prior to signing, a pretrial order has no effect and does not limit the parties to the issues specified therein).

Further, contrary to RMNANDCO’s contention, the plain language of OCGA § 55-12-33 (b) and (c)’s apportionment mandate does not omit from its purview either damages or the assessment of percentages of fault springing from a default judgment. At trial, the lower court declined to apportion damages, reasoning that OCGA § 51-12-33 (b) would not apply unless RMNANDCO, as plaintiff, could be assigned some liability under OCGA § 51-12-33 (a) and that the default precluded the assignment of such responsibility. This was error; in McReynolds v. Krebs, 290 Ga. 850, 852 (1) (a) (725 SE2d 584) (2012), our Supreme Court clearly determined that the statute’s plain language in no way limited its application to cases involving a plaintiff’s fault.

Similarly, while it is of course true that no trier of fact determined the defendants’ respective fault in the entry of the default judgment as to liability, the statute’s plain language and our case law “directs the trier of fact in certain cases to ‘consider the fault of all persons or entities who contributed to the alleged injury or damages[.]’ ” Walker v. Tensor Machinery, Ltd., 298 Ga. 297 (779 SE2d 651) (2015), citing OCGA § 51-12-33 (c) (finding that it is not legally inconsistent to allocate fault while shielding immune parties from liability for that fault). The statute further provides that the trier of fact “assess [ ] percentages of fault,” OCGA § 51-12-33 (c), and “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” OCGA § 51-12-33 (b). While it is correct that a “default concludes the defendant’s liability and estops him from offering any defenses which would defeat the right of recovery,” and that any argument that “goes to liability for the damages and not the amount of damages awarded[ ] is not permitted[,]” Broadcast Concepts, Inc. v. Optimus Financial Svcs., LLC, 274 Ga. App. 632, 635 (2) (618 SE2d 612) (2005) (citation omitted), assessment of fault for purposes of apportioning damages between the defendants in the instant context does not violate that rule.

Decided March 28, 2016.

Batch & Bingham, Christopher S. Anulewicz, Brooke W. Gram; Bush, Crowley & Leverett, Charles M. Leverett, for appellants.

Because apportionment is mandated, the trial court erred in instructing the jury on joint and several liability, and I. A. Group and Fitch are entitled to a new trial.

2.1. A. Group and Fitch also argue that the trial court erred in failing to rule on their motion to arbitrate, which was based on a clause in an unsigned operating agreement.

In the pretrial order signed by trial counsel for all parties to this appeal, I. A. Group and Fitch conceded that there were no pending motions or other matters for the trial court to consider; thus, they acquiesced to the alleged error of which they now complain. See Moody v. Dykes, 269 Ga. 217, 219-220 (3) (496 SE2d 907) (1998). We find no reversible error.

3. Given our determination to reverse and remand the case for a new trial, we do not address the appellants’ other contentions of error.

Judgment reversed and case remanded.

Barnes, P. J., andMcMillian, J., concur.

Cochran & Edwards, Scott A. Cochran, R. Randy Edwards, Paul A. Piland, for appellee.

       The other two defendants to the original litigation, CX5 Capital Corp. and Christopher T. Collins, are not party to the instant appeal.

       The jury also awarded punitive damages of $250,000 against Collins, who is not a party to the instant appeal.

       The plain language of the statute provides that in relevant actions, a court “shall. . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person[,]” OCGA § 51-12-33 (b) (emphasis supplied), and that “[i]n assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages[.]” OCGA § 51-12-33 (c) (emphasis supplied). To stray from that plain language could conceivably bar apportionment in any case where liability is determined not just by default judgment, but also, for example, by summary judgment or a directed verdict.

       As noted above, there were two other defendants in this suit, Collins and CX5 Capital Corp. These defendants, while not party to this appeal, were nonetheless parties deemed liable by the trial court’s sanctions and entry of default. Therefore, in considering the assessment of fault and resulting apportionment of damages, the trier of fact must also “consider the fault of all persons or entities who contributed to the alleged injury or damages” (emphasis supplied), OCGA § 51-12-33 (c), in determining the percentages of fault of I. A. Group and Fitch. See generally OCGA § 51-12-33 (d) (1), (e), and (f) (1), (2); Zaldivar v. Prickett, 297 Ga. 589, 597 (1) (774 SE2d 688) (2015).

       See SCSJ Enterprises, Inc. v. Hansen & Hansen Enterprises, Inc., 319 Ga. App. 210, 213 (2) (a) (734 SE2d 214) (2012) (physical precedent only) (In general, only signatories to an arbitration agreement may be compelled to arbitrate).

       In particular, RMNANDCO contends that damages may not be apportioned under RICO, and I. A. Group and Fitch contend that RMNANDCO’s complaint is not well-pleaded because this should have been brought as a derivative action rather than direct. As these matters are not central to our decision, we do not address them on appeal and leave them for the trial court to address in the first instance should they be raised during the new trial proceedings.


author: McMillian, Judge.

text:
    A15A2107.
    FRAZIER v. THE STATE.
    (784 SE2d 827)
   McMillian, Judge.

In October 2012, a jury convicted Steven Frazier of one count of rape and one count of false imprisonment. Frazier appeals from the denial of his motion for new trial, asserting that the trial court erred in allowing the State to impeach him with a prior rape conviction, and that he received ineffective assistance of counsel. For the following reasons, we affirm.

Construed most strongly in support of the verdict, the evidence at trial showed that late in the evening of May 30,1998,M. 0. andher cousin were in their home watching television when M. 0. received a call from her boyfriend. He asked M. O. to come over to his house, and because she did not have a car, M. O. called for a taxi. While waiting for the taxi to arrive, she noticed a white Ford pickup truck parked near her house. When the taxi did not arrive, M. O. decided to ask the driver of the truck, later identified as Frazier, if he would be willing to take her to her boyfriend’s house for $20, and he agreed.

Frazier told M. O. that he needed to stop for gas first, but instead drove down a gravel road to a secluded, wooded area. He demanded that she take her clothes off and told her that if she tried anything, he would kill her. Fearing for her life, M. O. pulled her pants down, and Frazier forcibly had sex with her twice over the course of several hours. M. O. tried to escape, but Frazier grabbed her and put his hands around her neck, scratching her, and forced her back into the truck. She cried and pleaded with him to stop and not to hurt her, but he told her, “Shut up, bitch” and threatened once again to kill her if she made any kind of move. At one point during the night, Frazier permitted M. 0. to exit the truck in order to relieve herself, and she secretly left her underwear on the ground before returning. When the sun started to rise, Frazier drove M. O. to a nearby gas station and dropped her off after warning her not to say anything.

M. O. walked home and immediately told her cousin that she had been raped by the man in the truck from the night before. Officer Anthony Levester with the Atlanta Police Department arrived at M. O.’s house at approximately 7:00 a.m. in response to a 911 rape call. There, M. O. told him that the man who raped her was driving an older model Ford truck and was a heavyset man, approximately thirty years old and six feet tall or taller. She also described the area he had taken her to, and Officer Levester was able to locate the area down an isolated dirt road. He then contacted Investigator Joy Paradise, a sex crimes investigator, who met them at the location on Meador Avenue before taking M. O. to Grady Hospital where she underwent a sexual assault examination.

At trial, M. O.’s cousin testified that when the taxi never arrived that night, she and M. O. walked to the truck parked nearby to ask if he was with the cab company. And the next time she saw M. 0., the following morning, she was hysterical and crying and told her that the man in the truck had raped her. M. O.’s boyfriend at the time testified at trial that he had called M. 0. around 12:30 that night and told her he would pay for her cab ride if she would come over to his house. He was not able to reach her again until the following day when she told him that she had been raped trying to go see him. Dr. Vonda Ware, who treated M. O. at Grady Hospital, testified that she observed recent scratches on M. O.’s neck and behind her right ear, as well as scratches on both of her shoulders and her left knee. And during the internal examination, she observed lacerations to M. O.’s hymen, consistent with trauma to the area. Dr. Ware also collected samples for analysis.

Stephanie Fowler, a forensic DNA analyst with the GBI, testified that the GBI received the sample in M. O.’s case, developed a male DNA profile from the spermatozoa found in the sample and uploaded the profile into the CODIS database. In late 2007 or early 2008, a CODIS match indicated that the individual was connected to another victim, J. H. However, there was no known identity associated with that sample, either. Then, in 2010, CODIS revealed a DNA match between Frazier and the sample taken in M. O.’s case. Frazier was subsequently arrested and proceeded to trial in 2012.

The State also presented the testimony of J. H. as similar transaction evidence. J. H. testified that one night in August 2007, while she was walking to the store, a man driving a white truck stopped and asked if she wanted to split a six-pack of beer. After she got into the truck, the man drove her to a dirt road where he demanded that she remove her clothes and raped her repeatedly over the course of several hours. She pleaded with him to stop, but he told her to shut up. He eventually let her go, and she took off running and called the police.

Frazier testified in his own defense and explained that in 1998 he was suffering from addiction, and on the night in question, he was searching for crack cocaine when he found M. O. soliciting on Jonesboro Road. M. 0. agreed to have sex with him in exchange for crack, and after they smoked crack together, they engaged in consensual sex. According to Frazier, M. O. then asked him for $50 and a ride to Perry Homes. When he refused, she walked away.

1. In his first enumeration of error, Frazier asserts that the trial court erred in allowing the State to impeach him with a 1979 rape conviction because it failed to make the proper findings of the specific facts and circumstances explaining how the conviction’s probative value outweighed its substantial prejudice. We find no basis for reversal.

Former OCGA § 24-9-84.1 (b), in effect at the time of Frazier’s 2012 trial, provided in pertinent part:

Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. . . .

And a trial court is required “to make an on-the-record finding of the specific facts and circumstances upon which it relies in deciding that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect. . . .” (Citation omitted.) Hites v. State, 296 Ga. 528, 530 (2), n. 4 (769 SE2d 364) (2015).

We will not disturb a trial court’s determination regarding the admissibility of a prior conviction for purposes of impeachment absent an abuse of discretion. See Clay v. State, 290 Ga. 822, 835 (3) (B) (725 SE2d 260) (2012). In Clay, our Supreme Court acknowledged that there had been “little guidance to the trial courts regarding what constitutes an abuse of discretion in admitting such convictions under OCGA § 24-9-84.1.” Id. Thus, it established five factors that trial courts should consider when conducting the balancing analysis:

(1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

Id.

Here, the State timely filed a notice of its intention to impeach Frazier’s credibility, should he testify at trial, with a 1973 conviction for voluntary manslaughter, a 1979 conviction for rape, two drug charge convictions in 1992 and 2000, and a 2009 conviction for aggravated assault. Before Frazier took the stand, the trial court determined that the State would be permitted to use each of the prior convictions except for the 1973 manslaughter conviction, finding the convictions relevant and probative and permissible for the limited purpose of impeachment. On direct examination, Frazier testified that he had picked up unknown women many times before because he was addicted to crack cocaine, did not like to smoke it alone, and wanted the company of women. During cross-examination, the State elicited testimony from Frazier that he became addicted to cocaine in the 1980s and did not suffer from an addiction problem in the 1970s. Frazier further testified that when he would pick up women, it was generally in areas where prostitutes would be and the encounters were always consensual. The State asked whether he had ever forced anyone to have sex with him, and Frazier replied, “No, ma’am.” The State then impeached him with the 1979 conviction for rape.

After closing arguments, the trial court, realizing it had not made specific findings on the record with respect to its ruling permitting the introduction of prior convictions more than ten years old, proceeded to supplement the record with findings as to each of the Clay factors for the 1979 rape conviction and 1992 and 2000 drug convictions. The trial court then concluded that based on all of the particular facts and circumstances that it had enunciated, “the probative value of admitting [the] three prior convictions substantially outweighs the prejudicial impact that admission of those prior convictions would have on the defendant.”

Although Frazier’s trial counsel initially objected to the introduction of the 1979 rape conviction at the time the trial court ruled, just prior to Frazier’s testimony, that the conviction could be used for impeachment on the grounds that it was “out of time,” he offered no objection to the trial court’s specific findings on the Clay factors after the trial court put those findings on the record. Thus, Frazier waived this enumeration of error on appeal by failing to object to what he now claims were inadequate findings. “[I]n order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (Citation omitted.) Hites, 296 Ga. at 530, n. 4 (rejecting defendant’s argument that the trial court did not perform or articulate the required balancing test pursuant to OCGA § 24-9-84.1 where that specific objection was not made at trial).

Moreover, even if Frazier had not waived this enumeration, the record clearly establishes that the trial court was aware of the specific factors required by Clay and carefully considered them before permitting the introduction of the 1979 rape case for impeachment purposes. Based on the circumstances of this case, we find no abuse of discretion in the trial court’s admission of the evidence. See Johnson v. State, 328 Ga. App. 702, 709 (3) (b) (760 SE2d 682) (2014) (no abuse of discretion where trial court considered the five factors set forth in Clay and concluded that given the nature of the charges in the case and the fact that the credibility of the victim and defendant were central to the issues, the probative value of the conviction was substantially outweighed by any prejudicial effect). Accordingly, this enumeration of error fails.

2. Frazier also asserts that he received ineffective assistance of counsel when his trial counsel failed to object to the State’s impeachment of Frazier with an accusation of rape on which he was not convicted. To succeed on this claim, Frazier must show both that his counsel’s performance was professionally deficient and that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “This burden, although not impossible to carry, is a heavy one.” (Citation and punctuation omitted.) McDuffie v. State, 298 Ga. 112, 115 (2) (779 SE2d 620) (2015). To establish deficient performance, an appellant must overcome the strong presumption that his counsel’s conduct fell within the broad range of reasonable professional conduct and “show that his counsel performed in an objectively unreasonable way, considering all circumstances and in the light of prevailing professional norms.” Prince v. State, 295 Ga. 788, 791 (2) (764 SE2d 362) (2014). In order to establish prejudice, there must be a reasonable probability that, but for counsel’s deficient performance, the outcome of the trial would have been different. See Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and the reviewing court need not examine the other prong. See Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

Here, prior to trial, the State filed a notice of intent to introduce evidence of similar transactions, including a 1999 allegation of rape, aggravated sodomy, kidnapping, and false imprisonment; the 2007 allegation of rape made by J. H.; and a 2008 allegation of rape and aggravated assault. Following a hearing, the trial court ruled that the State would only be allowed to introduce evidence of the 2007 and 2008 allegations of rape. The State ultimately only introduced evidence of the 2007 allegation made by J. H. as similar transaction evidence.

On direct examination, Frazier admitted that his cocaine addiction had caused him to go to jail for drug charges, violation of probation, and aggravated assault. During its cross-examination of Frazier, the State asked the trial court for a ruling outside the presence of the jury regarding whether it could impeach Frazier with additional allegations of rape. The trial court denied the State’s request to introduce any further evidence of such allegations, but explained that the State would be permitted to question Frazier regarding the 2008 rape allegation that the trial court had previously determined was admissible as similar transaction evidence. The State then proceeded, without objection, to cross-examine Frazier:

Q: Isn’t it also true that in 2009 there was an allegation that you raped [S. W.]?
A: Yes; that was overturned by the DA’s office.
Q: But you did, in fact, plead guilty to aggravated assault with a knife in that case; is that correct?
A: Yes; the DA’s office recommended that.

Decided March 28, 2016.

Kevin A. Anderson, for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

At the motion for new trial hearing, Frazier’s trial counsel testified that he did not object to this line of questioning because he believed “they were trying to use that for a different purpose. I forgot — I think it was — they were trying to use it to show pattern. I think the facts in that case may have been similar to what he was accused of.” Pretermitting whether counsel’s failure to object constituted deficient performance, we find that Frazier has failed to demonstrate prejudice. The evidence, including M. O.’s immediate outcry; the scratches on her neck, shoulders, and leg; Dr. Ware’s testimony regarding internal trauma; the DNA evidence; the corroborating testimony of M. O.’s cousin and boyfriend; and the similar transaction evidence presented by J. H., constituted overwhelming evidence of guilt. Thus, Frazier cannot show that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. See Johnson, 328 Ga. App. at 712 (5) (b). Accordingly, the trial court did not err in denying Frazier’s motion for new trial on this ground.

Judgment affirmed.

Ray and Peterson, JJ., concur fully in Division 2 and concur in judgment only as to Division 1.

       She later identified them when she returned to the location with police.

       M. O. also identified Frazier at trial as the man who had raped her.

       CODIS stands for the Combined DNA Index System.

       The location reported by J. H. was within one mile of the location reported by M. O.

       Both responding police and Dr. Ware testified that M. O. was not impaired that morning.

       Impeachment by prior convictions under the new Evidence Code is governed by OCGA § 24-6-609.

       Frazier only objected to the introduction of the 1979 rape conviction.

       J. H. eventually declined to prosecute as she did not want to “relive the same thing that [had happened to her] that night.”

       In 2009, as part of a plea deal, Frazier entered a guilty plea only as to the aggravated assault charge.

       Frazier then explained that his semen had not been found in S. W. and that the aggravated assault plea was not for using a knife but for slapping S. W. to get his wallet back.


author: Branch, Judge. MILLER, Presiding Judge,

text:
    A15A1755.
    HOGLEN v. THE STATE.
    (784 SE2d 832)
   Branch, Judge.

On appeal from his conviction for aggravated assault and three counts of felony obstruction, Jeremi Hoglen argues that the evidence was insufficient as to both of these crimes because he was not a party to his grandfather’s act of firing a gun during Hoglen’s apprehension by police executing a warrant to arrest him. We agree and reverse as to the aggravated assault charge, but we affirm Hoglen’s conviction for felony obstruction. We therefore vacate his sentence and remand for resentencing.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that before sunrise on the morning of September 14, 2004, three uniformed deputies of the Hart County Sheriff’s Department approached a white double-wide trailer where Jeremi Hoglen was living in order to investigate a report of a prowler and to arrest Hoglen on an outstanding warrant. When two of the deputies knocked and identified themselves as police, Hoglen fled out of a left back window and began running toward a barbed wire fence 15 feet from the house. The third deputy, who had stationed himself at the back of the house, saw Hoglen jump out of the window, gave chase, and ordered him to stop running. Hoglen climbed over the fence and ran down a hill past a red barn to a woodpile. When Hoglen tripped near the woodpile, the third deputy, who had followed him over the fence, tried to secure Hoglen’s hands, but Hoglen stuffed them under his belt. With the help of the first and second deputies, who had run to the woodpile without clearing the trailer, Hoglen’s hands were soon secured.

As Hoglen was apprehended, he began screaming, “Paw Paw, they’re killing me,” and “They are beating my ass.” The three deputies began to escort Hoglen back up the hill to the fence and the trailer, but Hoglen soon refused to walk. When a woman in the trailer asked what was happening, the deputies responded that they were sheriff’s officers making an arrest. As Hoglen continued to scream that “they” were “killing,” “beating,” and “hurting” him, a shot rang out. At this, Hoglen screamed even more loudly that he was being harmed and also added, “Over here, over here[!]” On hearing the shot, which seemed to have come from the trailer, one of the deputies called out, “Shots fired.” The officers extinguished their flashlights so as not to be targeted by the shooter. One of the officers used his hand to cover Hoglen’s mouth “because [Hoglen] was giving away our location.”

As the deputies continued their efforts to silence Hoglen in what was still pitch darkness, they took cover behind an oak tree. For up to 20 minutes, the deputies called for assistance from nearby police. After some movement at the trailer, the dome light in a vehicle parked nearby came on. On hearing the vehicle start and seeing it moving toward them and the trailer, one of the deputies returned Hoglen to the trailer while the other two made a “mad dash” toward three oak trees on the other side of the trailer. With their guns drawn, the two remaining deputies stopped the vehicle, a gold truck, which contained an older man and woman, a young woman, and a baby. The older man, Bobby Brown, told the deputies that he had shot a gun into the air because he thought that thieves were hurting Hoglen, his grandson. The deputies recovered a .38-caliber revolver from the truck. Medical personnel called to the scene determined that Hoglen had suffered only minor injuries from his flight.

Although the evidence showed that Brown fired the only shot at the scene, he and Hoglen were both arrested and charged with one count of aggravated assault, “individually and as parties concerned in the commission of a crime,” in that both men assaulted the deputies “with a deadly weapon” by discharging the revolver. Hoglen was also charged with three counts of felony obstruction, one for each deputy involved in the arrest, and Brown with one count of possessing a firearm during the commission of a felony. After the trial court denied Hoglen’s motion for directed verdict, he was found guilty on all four counts and sentenced to 20 years with five to serve. This appeal followed.

1. Hoglen first argues that the evidence was insufficient to sustain his conviction for aggravated assault. We agree.

OCGA § 16-5-20 (a) (2) provides in relevant part that a person commits the offense of simple assault when he or she “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-21 (b) (2) provides in relevant part that a person commits an aggravated assault when he or she assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-2-20 (b) (2)-(4) provides in relevant part that a person not directly committing a crime is nonetheless “concerned in the commission” of that crime, and thus a party to it, “only if” he

[ijntentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; ... [ijntentionally aids or abets in the commission of the crime; or . . . [ijntentionally advises, encourages, hires, counsels, or procures another to commit the crime.

(Emphasis supplied.) Although “mere presence” at the scene of a crime is insufficient to find a person guilty of that crime,

evidence of a defendant’s conduct prior to, during, and after the commission of a criminal act will authorize the defendant’s conviction for commission of the criminal act [only] if a jury could infer from the conduct that the defendant intentionally encouraged the commission of [that] criminal act.

Ratana v. State, 297 Ga. App. 747, 749 (678 SE2d 193) (2009) (citation and footnote omitted; emphasis supplied).

The State’s theory of the case is that taken together, evidence of Hoglen’s cries for help before the single shot fired, as well as his exclamation, “Over here!” after that shot, authorized this jury to conclude that he was a party to the aggravated assault at issue. Even if, as the dissent asserts, “Hoglen intended his grandfather to intervene in his arrest,” there is no evidence in the record to show that Hoglen knew that his grandfather possessed a pistol while driving his truck to the scene, that the grandfather was likely to respond to Hoglen’s initial cries for help by firing a shot, or that those cries intentionally encouraged the grandfather to discharge the single shot actually fired. As to Hoglen’s exclamation after the single shot, this Court has held that the act of driving a shooter away from the scene of an aggravated assault was insufficient to support a conviction under the theory that the driver was a party to that crime because there was no evidence that the defendant drove the shooter to the scene or “did anything on the scene to advise or encourage [the shooter] to commit the crimes.” Ratana, 297 Ga.App. at 750. We agree with the State that this jury was entitled to believe the officers’ testimony that Hoglen’s exclamation after the single shot placed them in reasonable apprehension of receiving a serious injury. But a second shot never came. In short, and although Hoglen’s exclamation could reasonably be interpreted as an expression of encouragement or incitement, it was made after Brown’s already completed act of firing his revolver near the officers, which is the act that forms the basis of the indictment against both Brown and Hoglen.

The absence of any evidence that Hoglen encouraged his grandfather’s act before or during the single discharge of the gun distinguishes this case from Glover v. State, 192 Ga. App. 798 (386 SE2d 699) (1989), on which the State relies. There, a defendant told his confederate in an armed robbery to “shoot the son of a b****” before the confederate did so, and was thus found to have encouraged that crime such that the defendant could be found guilty of possession of a firearm during the commission of a felony. Id. at 798, 800 (1). The State has cited no other law, and we have found none, authorizing a jury to infer that when Hoglen called out for help, he intentionally caused, aided, or encouraged his grandfather Brown to fire the single shot that put the officers in reasonable apprehension of immediately receiving a violent injury. Nor can Hoglen’s exclamation, “Over here!” authorize a jury to conclude that he encouraged the crime that had already occurred, just as the Ratana defendant could not be found guilty as a party to the crime of aggravated assault merely because he drove a shooter away from the scene of such an assault. 297 Ga. App. at 750. For all these reasons, Hoglen cannot be found to have been a party to the crime of aggravated assault, and his conviction for that crime must be reversed. Id.

2. Hoglen also argues that the evidence was insufficient to support his conviction for felony obstruction. We disagree.

The obstruction statute, OCGA § 16-10-24, provides in relevant part:

(a) Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.
(b) Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his or her official duties by offering or doing violence to the person of such officer ... is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

(Emphasis supplied.) Hoglen was charged with obstructing all three of the deputies attempting to arrest him by “offering to do violence,” “fighting with,” and “inciting others to do violence to” each of them.

In order to sustain a conviction for felony obstruction, a record must include evidence that the defendant offered or did violence, such as punching, choking, kicking, or biting, to the arresting officers. See, e.g., McMullen v. State, 325 Ga. App. 757, 758 (1) (754 SE2d 798) (2014) (defendant who jumped on officer’s back, choked him, and struck him twice in the face and once in the neck was guilty of felony obstruction); Arnold v. State, 249 Ga. App. 156, 159 (1) (b) (545 SE2d 312) (2001) (evidence was sufficient to sustain obstruction conviction where defendant grew belligerent after being placed in patrol car, began kicking window, and threatened to “pop a cap in [the officer’s] ass” if he saw him again).

Although the officers specifically declined to testify that Hoglen had been violent in resisting arrest, “[w] e have recognized that words, alone, can rise to the level of obstruction if they may reasonably be interpreted as a threat of violence and amount to an obstruction or hindrance.” Williams v. State, 261 Ga. App. 511, 514 (2) (583 SE2d 172) (2003) (punctuation and footnote omitted; emphasis in original). Although “speech must reasonably be interpreted as a threat of violence in order to constitute an offer of violence under OCGA § 16-10-24 (b)[, t]he interpretation of the speech is a task for the jury.” Arnold, 249 Ga. App. at 159 (1) (b) (punctuation and footnote omitted). Here, a jury could reasonably conclude that when Hoglen cried out, “Over here,” immediately after the single shot fired by Brown, he was encouraging Brown to discharge his revolver for a second time at or near the officers before they had succeeded in returning to safety, and was thus offering violence to those officers. See Jackson v. State, 213 Ga. App. 520-521 (444 SE2d 875) (1994) (affirming conviction for felony obstruction when defendant wielded tire iron and threatened to kill officer if he did not leave defendant’s brother alone). The evidence also supports the conclusion that when Hoglen shouted, “Over here,” the arresting deputies were forced to extinguish their flashlights so as to prevent being seen and shot by Brown, thus hindering their efforts to secure Hoglen’s arrest. Compare Wiliams, 261 Ga. App. at 514-515 (2) (reversing conviction for felony obstruction when no evidence showed that defendant’s verbal threats obstructed police officer’s completion of his law enforcement duties). Because the jury had some evidence from which it could reasonably infer that Hoglen’s shouts amounted to an offer of violence on the deputies as they were engaged in their official duties, we affirm Hoglen’s conviction for felony obstruction. See Arnold, 249 Ga. App. at 159 (1) (affirming conviction for felony obstruction where defendant under arrest began kicking police car window and threatened to shoot officer the next time he saw him).

3. Hoglen was originally sentenced to 20 years with five to serve for the aggravated assault, with the three five-year terms for three counts of felony obstruction running concurrently. In light of our reversal of Hoglen’s conviction for aggravated assault and affirmance of his conviction on three counts of felony obstruction, we cannot determine how the trial court would have sentenced Hoglen on the three felony obstruction counts. We therefore vacate Hoglen’s sentence and remand for resentencing in accordance with this opinion. See Maxwell v. State, 238 Ga. App. 197, 199 (2) (518 SE2d 432) (1999) (where appellate court vacated a mandatory minimum sentence for cocaine possession, but could not determine whether trial court would have given defendant the full five-year sentence for a forgery conviction, the sentence was vacated and the case remanded for resentencing).

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded for resentencing.

Andrews, P. J., Barnes, P. J., Ellington, P. J., Dillard and McFadden, JJ., concur. Miller, P. J., dissents in part.

MILLER, Presiding Judge,

dissenting in part.

I respectfully disagree with the majority opinion’s conclusion that the evidence was insufficient to convict Hoglen of aggravated assault as a party to a crime under OCGA § 16-2-20.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). We do not weigh the evidence nor determine witness credibility, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Talifero v. State, 319 Ga. App. 65, 66 (1) (734 SE2d 61) (2012).

OCGA § 16-2-20 (b) (4) provides that a person is a party to a crime if he “[intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” Although “mere presence at the scene and approval of a crime not amounting to encouragement is insufficient to authorize [a] conviction as a party to a crime . . . criminal intent may be inferred from conduct before, during, and after the commission of the crime.” (Citations and punctuation omitted.) Simpson v. State, 265 Ga. 665, 665-666 (461 SE2d 210) (1995).

In this case, the defendant repeatedly yelled to his grandfather that the police were beating him, killing him, and hurting him. Hoglen’s grandfather then admittedly fired the single shot into the air because he thought his grandson was being hurt. Whether this evidence was sufficient to establish that Hoglen encouraged his grandfather to fire a gun at the police was a question for the jury, Burks v. State, 268 Ga. 504 (491 SE2d 368) (1997), and, in finding Hoglen guilty of aggravated assault as a party to the crime, the jury found that Hoglen was not merely present. I agree.

Decided March 29, 2016.

Harvey S. Wasserman, Connor L. Magill, for appellant.

D. Parks White, District Attorney, J. Adam Wilkinson, Assistant District Attorney, for appellee.

The evidence permitted the jury to infer that Hoglen intended his grandfather to intervene in his arrest, and Hoglen’s conduct before and after the gunshot — yelling that he was being hurt and identifying his location — enabled the jury to conclude that Hoglen knew his grandfather had a firearm and intended for his grandfather to use it. This Court must review the evidence in the light most favorable to the verdict and cannot invade the province of the jury. Accordingly, the evidence was sufficient to establish Hoglen’s guilt as a party to the aggravated assault. Therefore, I respectfully dissent.

       Although Brown and Hoglen were charged in the same indictment, Brown was not a co-defendant at Hoglen’s trial.

       The three officers were the only witnesses to testify for the State. After the trial court denied Hoglen’s motion for directed verdict, Hoglen informed the court that he had decided not to testify, and the defense rested.

       The obstruction statute was amended in 1986, see Ga. L. 1986, p. 484, such that “the offense of misdemeanor obstruction under [the new statute) no longer contains the elements of ‘violence’ as does the offense of felony obstruction^]” Carter v. State, 222 Ga. App. 397, 398 (474 SE2d 228) (1996) (citations and punctuation omitted).

       Based on my conclusion that the evidence is sufficient, it wouldbe unnecessary to remand this case for resentencing, as discussed in Division 3, supra.


author: Boggs, Judge.

text:
    A15A1811. A15A1812. A15A2022.
    JEFFERSON v. HOUSTON HOSPITALS, INC. JOHNSON v. HOUSTON HOSPITALS, INC. LUMPKIN v. HOUSTON HOSPITALS, INC.
    (784 SE2d 837)
   Boggs, Judge.

These three cases arise out of the misconduct of an employee of Perry Hospital, who forged mammography reports instead of giving the images to a radiologist for review. Patricia Jefferson, Catherine Johnson, and Gaynelle Lumpkin (“appellants”) received falsified reports stating that their mammograms were normal. After learning of the employee’s misconduct, appellants brought identical claims against Houston Hospitals, Inc. and Houston Healthcare Complex MSO, Inc., d/b/a Perry Hospital, and the Hospital Authority of Houston County (collectively, “the Hospital”), as well as the employee, several physicians and practices, and a “John Doe” defendant. The trial court granted the Hospital’s motions for summary judgment, and appellants appeal. Because appellants have not presented sufficient evidence to sustain their claims under any asserted cause of action, we affirm the judgments of the trial court.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

(Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776) (2015). So viewed, the record shows that all three appellants received routine mammograms at the Hospital in early 2009. In each case, the mammograms were performed by Rachael Repraeger, the “lead mammography technologist” at the Hospital. As part of her duties, Repraeger helped train “locum tenens” — temporary or visiting radiologists — in the use of the Hospital’s computer-based mammography record system. She testified that, as a result, she knew “several” of their passwords. She added that, because the visiting physicians “had a lot on their plate,” her supervisor told them to use their last names as a password, so “when they got stuck or when I would have to show them how to use [the system] for the first few times, I would know their password.” The system was accessible only from two computer terminals, one in the mammogram room and the other in the radiologists’ reading room.

Although Repraeger was supposed to transmit the mammogram images to a radiologist for interpretation, she testified that instead she used passwords she learned through her training duties to enter the Hospital’s mammography record system and created forged reports indicating that the mammograms were normal. Repraeger testified that she knew that what she was doing was outside the scope of her duties, that she “knew it was wrong,” and that she told no one what she was doing. Her superiors testified that neither they nor Repraegers’ co-workers in a “small. . . close knit department” knew that she was forging reports.

In early April 2010, the Hospital discovered anomalies during a patient peer review and began an investigation. During that investigation, Repraeger acknowledged that she had entered numerous forged reports showing negative mammogram results, despite the images never having been reviewed by a radiologist. As a result, Repraeger was terminated on April 6, 2010. She also was indicted on ten counts of reckless conduct and ten counts of computer forgery. She pled guilty to ten counts of reckless conduct and one count of computer forgery and was sentenced to 160-180 days of confinement in a detention center and ten years of probation, and was prohibited from holding a job in healthcare.

Shortly after Repraeger’s fraud was discovered, the Hospital contacted appellants by telephone asking that they return for another mammogram; appellants allege that the Hospital told them only that it was testing a new machine and did not reveal Repraeger’s misconduct. On May 10, 2010, the Hospital issued a press release disclosing that “a radiology employee had processed a number of mammography tests done in 2009 and early 2010 without obtaining a reading of the tests by a Radiologist,” apologizing, and detailing its efforts to remedy the situation. At least one appellant also received a follow-up letter from the Hospital in June 2010, stating that it had no record of her returning for a mammogram in 2010, and that it had

discovered a breach in our quality control process that may have affected the reliability of the interpretation of your mammogram study. As we can draw no conclusions about the results from your previous study, it is absolutely critical you schedule a repeat mammogram in the very near future.

(Emphasis in original.)

All three appellants received a mammogram in April or May 2010, and all three mammograms were normal and showed no abnormalities or signs of breast cancer. Appellants acknowledge that they do not have and have never had breast cancer.

Appellants brought these actions on May 31, 2012, asserting identical claims for fraud, RICO, intentional infliction of emotional distress, breach of contract and express warranty, general negligence, negligence per se, and conversion. They also sought bad faith penalties, attorney fees, and punitive damages. After extensive discovery and briefing, the trial court granted summary judgment in favor of the Hospital in three virtually identical but lengthy, thoughtful, and comprehensive orders, addressing each of appellants’ claims in detail. From these orders, appellants appeal, asserting as their sole enumeration of error that the trial court erred in granting the Hospital’s motions for summary judgment.

The trial court determined that the Hospital was not vicariously liable for Repraeger’s actions because she did not act within the scope of her employment. It also determined that appellants had failed to show intentional infliction of emotional distress. Finally, it held: “Damages are an essential element of all causes of action alleged by Plaintiff[s]. As a matter of law, the evidence presented as to the alleged damages suffered by Plaintiff, under each cause of action claimed, is insufficient to submit to a jury.” We agree with the trial court that vicarious liability does not arise here, that appellants have not shown intentional infliction of emotional distress, and that they have failed to show any actionable damages under any cause of action asserted.

1. Appellants first contend that the Hospital is responsible for the actions of Repraeger under a theory of vicarious liability.

This matter is generally governed by OCGA § 51-2-2, which provides that a master is liable for the torts committed by his servant in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily. The question is not whether the master authorized the servant to commit the tort, but whether the servant was authorized to accomplish a purpose in pursuance of which a wilful tort is committed. The test is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. Whether a servant is acting within the scope of his employment is usually a jury question, but may be decided by the court as a matter of law in plain and palpable cases. This is such a case.

(Citations, punctuation and footnotes omitted.) Rent to Own, Inc. v. Bragg, 248 Ga. App. 130, 131 (1) (546 SE2d 9) (2001). In Bragg, a store manager was directed by a company vice-president to swear out a warrant for the arrest of an individual who failed to pay for rental appliances. However, he named the wrong person in the affidavit; that individual was arrested and then sued the company for malicious prosecution. We held that, in the absence of evidence that the manager acted for personal reasons, it was undisputed that he “was acting within the scope of the actual transaction of Rent to Own’s business for accomplishing the ends of his employment.” (Citations, punctuation and footnote omitted.) Id. at 132 (1).

Here, in contrast, the undisputed evidence shows that Repraeger was not acting within the scope of her employment when she improperly accessed the mammography computer files and forged reports. She testified that it was not part of her duties to read and interpret the mammogram films, and that she did so not in furtherance of the Hospital’s business, but because she had become “really careless and lazy for lack of a better word,” instead of transmitting the films promptly to the radiologists, she allowed her work to get “so backed up” that she “would just go into the computer like the doctor would do” and create fraudulent reports.

Our Supreme Court has addressed the issue of a hospital’s vicarious liability for the acts of an employee in Piedmont Hosp. v. Palladino, 276 Ga. 612 (580 SE2d 215) (2003). There, a nurse was authorized to provide post-surgical treatment to a patient, including the inspection and cleaning of the patient’s genital area. But evidence was presented that the nurse, while providing this treatment, sexually molested the patient. Id. at 613. The court observed:

Two elements must be present to render a master liable under respondeat superior: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business. If a tort is committed by an employee not by reason of the employment, but because of matters disconnected therewith, the employer is not liable. If a tortious act is committed not in furtherance of the employer’s business, but rather for purely personal reasons disconnected from the authorized business of the master, the master is not liable.

(Citations, punctuation and footnotes omitted; emphasis in original.) Id. at 613-614. The Supreme Court, reversing this court, found that the hospital could not be held vicariously liable. Id. Once the nurse deviated from his job duties, “he was no longer acting within the scope of his employment or furthering the business of [the h] ospital. At that point, [the nurse] was acting not as a hospital employee, but rather purely for his own personal reasons.” (Citation, punctuation and footnote omitted.) Id. at 614. The Supreme Court rejected the idea that a mere physical connection or association between the employee’s authorized duties and the wrongful act could create vicarious liability. It held that when the nurse “abandoned the hospital’s interests and began pursuing his own personal, morally offensive, agenda .. . his actions extended beyond the scope of his employment and were totally unconnected to the Hospital’s business.” Id. at 615. Moreover, the fact that his employment provided the “opportunity to commit tortious acts” by placing him alone in a room with an unconscious or sedated patient did not create vicarious liability. Id. In so holding, the Supreme Court cited Lucas v. Hosp. Auth., 193 Ga. App. 595 (388 SE2d 871) (1989). Palladino, supra, 276 Ga. at 615. In Lucas, this court found that summary judgment was proper when a nurse administered lethal doses of medication to patients “in order to ‘put them out of their misery.’ ” 193 Ga. App. at 595 (1). “While [the nurse] may have been advancing the hospital’s interests in giving authorized injections of potassium chloride, she clearly abandoned the hospital’s interest and pursued only her own when she gave the lethal, unauthorized injections. [Cit.]” (Emphasis in original.) Id.

Similarly, even if Repraeger had access to doctors’ passwords as part of her training duties, her illicit use of them was not within the scope of her employment, as appellants contend. When she stepped aside from her job duties and indeed violated them by forging documents for her own personal convenience, her “actions took [her] outside the realm of employment and became purely personal in nature.” 276 Ga. at 616. Moreover, her actions did not “further[ ] the employer’s business.” Id. By undertaking responsibilities that she was not charged with or qualified to perform, Repraeger abandoned the Hospital’s business to serve her own convenience, “not for any purpose beneficial to” the Hospital. (Citation omitted.) Dowdell v. Krystal Co., 291 Ga. App. 469, 471 (1) (662 SE2d 150) (2008) (cashier trained to refer customer complaints to manager and had no responsibility to resolve them; fighting with complaining customer not for any purpose beneficial to employer; cashier abandoned employer’s business).

The cases cited by appellants provide no grounds for holding that Repraeger’s improper and indeed criminal acts were within the scope of her employment or in furtherance of the hospital’s business. In Gann v. Mills, 124 Ga. App. 238 (183 SE2d 523) (1971), an apartment manager instructed a maintenance worker to remove clothing that was left in a common laundry room on the premises. The maintenance worker did so, but apparently disposed of the clothing. This court affirmed the denial of the apartment owners’ motion for summary judgment, but not for the reason that the worker’s act was within the scope of his employment. Rather, we held that in the absence of admissible testimony concerning the scope of the duties of the maintenance worker, “the defendants have failed to pierce the allegations” of the plaintiff’s complaint. Id. at 239. Similarly, May v. Crane Bros., Inc., 276 Ga. 280 (576 SE2d 286) (2003), does not support appellants’ position. That decision addresses only the issue of punitive damages after a jury had already found an employer liable on the basis of respondeat superior. Neither May nor its earlier appearance in this court, Crane Bros., Inc. v. May, 252 Ga. App. 690 (556 SE2d 865) (2001), addresses the jury’s earlier verdict that the employer was liable under a theory of respondeat superior.

The trial court did not err in granting summary judgment on the issue of vicarious liability.

2. Appellants next argue that the trial court erred in granting summary judgment on their claims for intentional infliction of emotional distress. This tort has four elements, all of which must be shown to prevail.

To recover on an intentional infliction of emotional distress claim, a plaintiff must show evidence that: (1) defendants’ conduct was intentional or reckless; (2) defendants’ conduct was extreme and outrageous; (3) a causal connection existed between the wrongful conduct and the emotional distress; and (4) the emotional harm was severe. The evidence in this case does not show either extreme and outrageous conduct or severe emotional harm. It [is] not... enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been extreme and outrageous.

(Citations, punctuation and footnotes omitted.) Abdul-Malik v. Air-Tran Airways, 297 Ga. App. 852, 855-856 (1) (678 SE2d 555) (2009). Under the second element,

[e]xtreme and outrageous conduct is that which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Whether actions rise to the level of extreme and outrageous conduct necessary to support a claim of intentional infliction of emotional distress is generally a question of law.

(Citations, punctuation and footnotes omitted.) Id. at 856 (1). And under the fourth element, “[t]he law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it. Whether severe emotional distress can be found, based on the evidence presented, is a question for the court to decide.” (Citations, punctuation and footnotes omitted.) Id. at 858 (1).

As in Abdul-Malik, here the evidence fails to show “either extreme and outrageous conduct or severe emotional harm.” Id. Appellants argue that the Hospital was reckless in its supervision of Repraeger and intentionally concealed the reason for the necessity of a repeat mammogram in its initial telephone calls. But any such conduct by appellees is irrelevant to our analysis, because appellants’ case fails on the second and fourth elements of the cause of action. Appellants also conflate the conduct of Repraeger and that of the Hospital in arguing that the Hospital’s acts were extreme and outrageous. But, as noted in Division 1, supra, the Hospital is not liable in respondeat superior when the employee’s actions were outside the scope of her employment and not in furtherance of the Hospital’s business. Therefore, as appellants acknowledge, under this circumstance the claims here are without merit.

Nor have appellants provided evidence that the distress they suffered was “so severe that no reasonable person could be expected to endure it.” One appellant testified in her deposition that she was “disgusted” and “ha[d] anxiety” about appellees’ conduct. The second testified that “[i]t really upset me at the time,” “for a short time,” but she “[doesn’t] dwell on it.” The third appellant testified that she was “[e]motional. .. really upset.” But all three appellants testified that they have not sought medical treatment or counseling for any emotional distress. Two complained of transient sleeplessness, but none of the appellants enumerate any specific psychological symptoms, and certainly not any symptoms rising to the level of “severe.” Even such physical manifestations as sleeplessness, anxiety, and headaches, standing alone, are not “so severe that no reasonable person could be expected to endure them.” (Citations and footnote omitted.) Abdul-Malik, supra, 297 Ga. App. at 858 (1). See also Jones v. Warner, 301 Ga. App. 39, 43 (3) (686 SE2d 835) (2009) (“anxiety, nervousness, sleeplessness, and irritability,” with no medical or psychiatric treatment sought, not sufficiently severe).

Appellants rely on Sevcech v. Ingles Markets, 222 Ga. App. 221, 223-224 (3) (474 SE2d 4) (1996), to argue that they need show no evidence of medical treatment. However, in Abdul-Malik, supra, we expressly distinguished Sevcech. 297 Ga. App. at 858 (1), n. 20. In that case the appellant was falsely accused of shoplifting by three employees, who took him to the store office, forced him to submit to a body search, knocked him to the ground, and then called the police and had him arrested. While it is true that evidence of medical treatment is not required to establish the existence of severe emotional distress, it is a factor that is considered in determining the severity of that distress. But here, appellants cannot show from all of the evidence, which includes the fact that they obtained no medical treatment, that their distress was “so severe that no reasonable person could be expected to endure it.” (Citations, punctuation and footnote omitted.) Id. at 858.

The trial court did not err in granting summary judgment on appellants’ claims of intentional infliction of emotional distress.

3. We next address appellants’ contention that the trial court erred in finding that they had failed to show damages with respect to their remaining claims.

(a) First, appellants cannot demonstrate any physical injury attributable to the Hospital’s conduct. Most significantly, none of the appellants have or have had breast cancer, and therefore the failure of a radiologist to examine their mammography films did not exacerbate an existing condition. This distinguishes their situation from those in which an improper or negligent examination resulted in a delayed diagnosis and treatment of a disease.

Appellants argue that the 2010 mammography procedures involved “additional harmful radiation” and that during that procedure their breasts were “squeezed, pushed, and physically manipulated by [the Hospital’s] staff for the repeat mammogram[s].” But all appellants regularly obtained a mammogram on an annual basis, and they would have been due for annual mammograms on or about the time the “repeat mammograms” were performed. Even if we assume that an ordinary medical diagnostic procedure by which the Hospital attempted to cure an employee’s misconduct could be construed as an injury, appellants have failed to show that the physical contact, to which they consented, would not have occurred in any event at the time of their regularly scheduled mammograms.

(b) Appellants also contend that they suffered monetary damages, because their health insurance was billed for the unread mammograms and was not reimbursed for two years. But the Hospital reimbursed appellants’ health insurers for the cost of the 2009 mammograms, and did not bill them for the 2010 mammograms.

(c) In the absence of physical injury or pecuniary loss, appellants cannot show damages for emotional distress. “If ‘mental pain and suffering’ is not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was ‘malicious, wilful, or wanton.’ ” (Citations and punctuation omitted.) Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992). Since we have found in Division 1 that the Hospital is not vicariously liable for the conduct of Repraeger, appellants have failed to show such conduct on the part of the Hospital.

Moreover, as noted above, appellants have never been diagnosed with breast cancer, and any emotional distress attributable to mistrust of the mammogram procedure or fear of a misdiagnosis in the future is not cognizable in damages.

It is axiomatic that for recovery, there must be some reasonable connection between the act or omission of a defendant and the damages which a plaintiff has suffered. Without factual evidence of a causal connection between the alleged breach of duty and the purported damages, the damages must be considered whimsical, fanciful and above all too speculative to form the basis of recovery under OCGA § 51-12-8. As in any negligence case, the [plaintiffs] had to show both cause in fact and legal cause. . . .

(Citation omitted.) Russaw v. Martin, 221 Ga. App. 683, 686 (1) (472 SE2d 508) (1996). In Russaw, a hospital patient incurred an accidental needle stick from a needle that had been used to administer another patient’s medication. The patient and her husband asserted damages for emotional injuries and mental anguish due to their fears that she had been exposed to hepatitis or AIDS, despite multiple tests over several months with negative results for the patient, her husband, and the other patient. Id. at 684. Even with an actual physical injury from the needle stick, we held that, because the plaintiffs “offered no evidence of actual exposure to HIV or AIDS or hepatitis and no evidence of a channel of communication of disease, we hold that their recovery for fear and mental anguish is per se unreasonable as a matter of law.” Id. at 687 (1). In so holding, we specifically rejected the “window of anxiety” approach to emotional injuries during the “time lag” between the allegedly harmful event and the receipt of definitive negative test results. Id. at 685-686 (1). See also Johnson v. American Nat. Red Cross, 276 Ga. 270, 272-273 (1) (578 SE2d 106) (2003) (merely theoretical exposure to undetectable strain of HIV through blood transfusion insufficient to support claim for damages).

(d) In the absence of any cognizable physical, pecuniary, or emotional injury, the trial court properly granted summary judgment on appellants’ RICO claims. See, e.g., Schoenbaum Limited Co. v. Lenox Pines, LLC, 262 Ga. App. 457, 470 (8) (c) (585 SE2d 643) (2003) (private RICO plaintiff “must show that one of the predicate acts directly harmed it, not a third party.” (Citations, punctuation, footnote and emphasis omitted); Sevcech, supra, 222 Ga. App. at 221-222 (1) (RICO requires “motive or effect... to derive pecuniary gain.”)

(e) Similarly, based upon their failure to show damages, the trial court properly granted summary judgment on appellants’ negligence and breach of contract claims against the Hospital based on its own conduct.

Decided March 29, 2016.

Monica L. Wilburn, for appellants.

Huff, Powell & Bailey, Daniel J. Huff, Julye Johns; Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train TV, for appellees.

(f) Finally, appellants’ “derivative claims of attorney fees and punitive damages will not lie in the absence of a finding of compensatory damages on an underlying claim. [Cit.]” D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 325 (3) (582 SE2d 478) (2003).

Judgments affirmed.

Doyle, C. J., and Peterson, J., concur.

       The three appellants are all represented by the same attorney, and appellants’ pleadings and affidavits in the trial court are almost identical, as are their appellate briefs. We therefore address all three appeals together.