author: McMillian, Judge.

text:
    A12A2225.
    HICKORY LAKE, L.P. et al. v. A. W.
    (739 SE2d 836)
   McMillian, Judge.

A. W. filed this premises liability action against appellants Hickory Lake, L.P., and First Communities Management, Inc. (collectively “defendants”) after she was raped by an unknown assailant at an apartment complex owned, operated and managed by defendants. Pursuant to OCGA § 51-12-33, defendants filed a notice of intent to seek to have damages, if any, apportioned against the unknown assailant and to have the jury instructed accordingly. A. W. objected to the notice of apportionment on a number of grounds. The trial court ruled in her favor, reasoning that to allow apportionment under these circumstances would impermissibly relieve the property owner of its duty to keep its premises safe. See OCGA § 51-3-1.

Defendants sought interlocutory review of this order, which we granted, and timely filed their notices of appeal. After the trial court’s ruling, our Supreme Court issued its opinion in Couch v. Red Roof Inns, 291 Ga. 359 (729 SE2d 378) (2012). The Court in Couch specifically decided that, contrary to the trial court’s ruling in this case, apportionment of damages between a property owner and an unknown, intentional tortfeasor is permitted. Id. Further, the Supreme Court specifically rejected the argument that allowing apportionment under these circumstances nullifies a property owner’s duty to keep its premises safe, and also rejected five other “policy-based” arguments that apportionment should not be allowed between property owners and intentional tortfeasors who may be at fault for a plaintiff’s injuries. Id. at 365-366 (1). Thus, A. W.’s attempts to distinguish Couch from the present case are unavailing. Accordingly, based on the clear precedent of our Supreme Court, the trial court’s order must be reversed. See also GFI Mgmt. Svcs., Inc. v. Medina, 291 Ga. 741 (733 SE2d 329) (2012); Six Flags Over Georgia II v. Martin, 320 Ga. App. 52 (743 SE2d 25) (2013); Accor North America, Inc. v. Todd, 318 Ga. App. 317 (733 SE2d 846) (2012); Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 228-229 (2) (b) (715 SE2d 728) (2011) (physical precedent only).

Decided March 14, 2013.

Leitner, Williams, Dooley &Napolitan, Thomas O. Sippel, Jatrean M. Sanders, Hawkins, Parnell, Thackston & Young, Michael J. Goldman, Brian W. Sprinkle, for appellants.

Law & Moran, Andy J. Williams, Jr., for appellee.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       A. W. also contends that a jury charge on apportionment is not authorized by the evidence in this case. But the trial court did not rule on this issue, and we decline to address it at this time.

       A. W. subsequently amended her complaint to add Certified Security Services, LLC as a defendant to this action, and Certified Security filed its application for interlocutory review and notice of appeal along with the other defendants/appellants. However, while this appeal was pending, the trial court granted Certified Security’s motion for summary judgment, and Certified Security has been allowed to withdraw as a party to this appeal.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A2254.
    LOSEY v. PRIETO et al.
    (739 SE2d 834)
   DOYLE, Presiding Judge.

Edward H. Losey hired Michael A. Prieto, Perrotta, Cahn & Prieto, PC., Jeffrey H. Schneider, and Weissman, Nowack, Curry & Wilco, P.C. (collectively, “the Attorneys”) to represent him in a lawsuit filed against him for specific performance of a real estate contract. After the lawsuit settled and Losey subsequently sold the property at issue, he filed suit against the Attorneys to recover the $1.1 million in fees paid to them pursuant to the parties’ engagement agreement. The Attorneys filed a motion to dismiss and to compel arbitration, and the trial court granted both motions. Losey appeals, arguing that the mandatory arbitration provision contained in the engagement agreement was unenforceable. We affirm, for the reasons that follow.

Similar to our review of the grant of summary judgment, which involves the elimination of all genuine issues of material fact, the standard of review from the grant of a motion to compel arbitration is whether the trial court was correct as a matter of law. In addition, the construction of a contract is a question of law for the court that is subject to de novo review. Where contract language is unambiguous, construction is unnecessary[,] and the court simply enforces the contract according to its clear terms.

Losey contracted to sell 4.85 acres of land on Tybee Island, and he retained the Attorneys to defend him in a subsequent lawsuit for specific performance filed by the prospective buyers. The engagement agreement between the parties (the “Fee Agreement”) provided that the Attorneys would be paid a contingency fee of 45 percent “of the gross monetary proceeds from the future sale of the Tybee Island property above $1.5 million.” The Fee Agreement also contained an arbitration provision:

Any dispute arising under this agreement (including the scope of this arbitration provision and its enforceability) will be submitted to arbitration in Atlanta, Georgia, under the rules and procedures of the State Bar of Georgia Committee on the Arbitration of Attorney Fee Disputes, if concerning fees, or to Henning Mediation & Arbitration Services ... if concerning any other matter. . . . The decision of any such arbitrator or arbitrators shall be binding, conclusive, and not subject to appeal. The cost of any such arbitration shall be split evenly between the parties in dispute.

Losey ultimately settled his claim against the prospective buyers of the Tybee Island property, and he subsequently sold the property to another buyer for $4.25 million, with $2 million due at closing and a $2.4 million future payment consisting of the remaining balance plus interest. The Attorneys were paid 45 percent of the $4.25 minion total sales price in excess of $1.5 million. The buyer subsequently defaulted on his obligation to pay Losey the $2.4 million future payment and eventually filed bankruptcy, and the buyer’s obligation to make the future payment to Losey was discharged.

Losey subsequently filed suit against the Attorneys, asserting claims for breach of contract, conversion, money had and received, and fraud, essentially alleging that the Attorneys were paid, at their insistence, more money in fees than they were entitled to receive under the Fee Agreement. The Attorneys filed motions to dismiss and to compel arbitration on the grounds that arbitration was Losey’s sole remedy under the Fee Agreement, and the trial court granted both motions.

On appeal, Losey argues that the trial court erred by granting the Attorneys’ motion to compel arbitration because the arbitration provision in the Fee Agreement is unenforceable. This argument provides no basis for reversal, however, because the parties specifically agreed in the Fee Agreement to arbitrate any dispute arising out of the agreement, including the enforceability of the arbitration provision.

In First Options of Chicago v. Kaplan, the United States Supreme Court explained that

"[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question who has the primary power to decide arbitrability turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrability question itself to arbitration?

“[T]he question of arbitrability ... is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.”

Decided March 14, 2013

Evans, Scholz, Williams & Warncke, Rickman P. Brown, for appellant.

Carlock, Copeland & Stair, Johannes S. Kingma, Shannon M. Sprinkle, Hawkins, Parnell, Thackston & Young, Christine L. Mast, Matthew G. McLaughlin, for appellees.

Here, Losey does not dispute that he entered into the Fee Agreement, which contained a provision wherein the parties agreed to submit all disputes to arbitration, specifically including “the scope of this arbitration provision and its enforceability.” This language constitutes clear and unmistakable evidence that the parties agreed that the arbitrator would decide the issue of arbitrability. Accordingly, the trial court did not err by compelling the parties to arbitration and dismissing the case.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       (Citations and punctuation omitted.) Moore & Moore Plumbing v. Tri-South Contractors, 256 Ga. App. 58, 60-61 (1) (567 SE2d 697) (2002).

       The Fee Agreement directed Losey to contact the Attorneys if he had any concerns regarding the terms of the engagement letter, and it contained a provision wherein the parties confirmed that although they “thoroughly discussed the terms of the agreement, [the Attorneys] would recommend that [Losey] have the document reviewed by independent counsel.”

       Losey also paid an additional $162,048 to Prieto and Perrotta, Cahn & Prieto, P.C., and another $12,500 to Prieto “for unspecified reasons.”

       In sum, Losey received a total of $2 million from the buyer, and he paid a total of $1.1 million in fees to the Attorneys.

       Specifically, Losey argues that the arbitration provision is unconscionable and evinces a conflict of interest between him and the Attorneys; that the Attorneys failed to fully inform him of the scope and effect of the arbitration provision; that the trial court failed to specify whether the arbitration would be submitted to Henning Mediation or to the Bar Committee, arguing that the Bar Committee could not take jurisdiction of this case under its internal rules; and that the arbitration provision was unenforceable under OCGA § 9-9-2 (c) (7), which prohibits mandatory arbitration provisions in “[a]ny contract involving consumer acts or practices or involving consumer transactions. .. .”

       514 U. S. 938 (115 SC 1920, 131 LE2d 985) (1995).

       (Citation and punctuation omitted; emphasis in original.) Id. at 943 (II). (The Supreme Court explained that separate standards of review apply to a trial court’s review of an arbitrator’s decision regarding arbitrability: a “court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances. If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently.”) (citation omitted; emphasis in original).

        AT&T Technologies v. Communications Workers of America, 475 U. S. 643, 649 (II) (106 SC 1415, 89 LE2d 648) (1986).


author: McFADDEN, Judge.

text:
    A12A2373.
    NICE FINANCIAL SERVICES, INC. v. ALI et al.
    (739 SE2d 825)
   McFADDEN, Judge.

Nice Financial Services, Inc. brought this action against Sohail Ali, Aziz Hussain and Tara Road Properties, LLC. Nice Financial alleges that, when Sohail Ali and Aziz Hussain controlled the company’s operation, they misdirected corporate assets to their own obligations and to Tara Road Properties. The trial court granted summary judgment, holding, inter alia, that the claims were barred by the settlement of two prior lawsuits. Because at least some of Nice Financial’s claims are based on actions that occurred after the dismissal of the prior lawsuits, we reverse in part.

On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Rose v. Household Finance Corp., 316 Ga. App. 282 (728 SE2d 879) (2012). So viewed, the evidence shows that Nice Financial is a check cashing business, which has been involved in litigation since at least 2008.

The first prior action was filed on February 19, 2008 in Gwinnett County Superior Court. Akbar Ali, Madatali Umani, Muradali Umani and Irfan Merchant sued appellee Sohail Ali, Nice Financial, and appellee Aziz Hussain, alleging various acts of misconduct. These parties entered a settlement agreement on November 9, 2010, and the plaintiffs dismissed the case with prejudice on March 17, 2011.

The second prior action was filed on September 4, 2008 in Gwinnett County Superior Court. Arif Merchant brought that action against Nice Financial and appellee Sohail Ali. This case, too, was settled on November 9, 2010; and Arif Merchant dismissed it with prejudice on March 17, 2011.

After these two lawsuits settled, Akbar Ali, Madatali Umani, Muradali Umani and Irfan Merchant gained voting control of Nice Financial and removed appellee Sohail Ali as the manager of the day-to-day operations of Nice Financial. Four months after the dismissals of the other lawsuits, Nice Financial filed the instant lawsuit in which it alleges various claims generally alleging misuse of the assets of Nice Financial.

The defendants moved for summary judgment and for “judicial cognizance” of the documents from the prior cases. The trial court granted both motions, and Nice Financial filed this appeal.

1. Record on appeal.

The appellees argue that Nice Financial’s failure to include in the record on appeal the pleadings and depositions from the prior lawsuits bars this appeal. They rely on Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984), where the Supreme Court held: “Because a ruling on the effect of the prior case may be raised on appeal, the record or portion thereof considered by the trial court should be designated to be included in the appeal if a party wishes to enumerate error on the ruling.” But here, the trial court granted the appellees’ unopposed motion to take judicial cognizance of the pleadings and depositions filed in the prior actions. The court further ordered that those filings be designated as part of the record in the current action. And in Nice Financial’s notice of appeal, it instructed the superior court clerk “to include in the record on appeal all documents filed in this action and to exclude nothing.” (Emphasis in original.)

It is not clear from the record, however, whether that designation was brought to the attention of the clerk of the trial court. This issue could have been avoided if the appellant had been more proactive in discharging its duty to perfect the appellate record. Particularly where, as here, the appellate record presents unusual problems, an appellant is wise to communicate directly with the clerk of the trial court and to examine the appellate record, or at least the index to the appellate record, in order to assure that everything needed to show error is included.

Regardless, Petkas is distinguishable and the appellate record here is sufficient. The appellees attached the two complaints and dismissals with the settlement agreement to their brief in support of their motion for summary judgment and judicial recognizance. They also filed an affidavit of appellee Sohail Ali verifying the authenticity of the documents. Those documents are part of the record before us, and we can therefore address the enumerations of error.

2. Summary judgment.

The trial court granted the defendants summary judgment, ruling, inter alia, that Nice Financial’s complaint was barred by release and settlement. On appeal Nice Financial has substantially narrowed the issues by expressly abandoning all but four of its claims. And there is some evidence that some of those four claims are based on conduct that occurred after the settlement of the earlier lawsuits. We therefore reverse in part.

Nice Financial has now abandoned any claims based on acts that occurred either before the March 17, 2011 dismissal of the two prior suits or after June 2011, when appellee Sohail Ali was removed as corporate director and officer and thus no longer controlled Nice Financial. It limits its appeal to four claims that it argues are based on acts that occurred between those dates. In other words, it limits its appeal to claims based on acts that occurred after March 17,2011, and before June 2011.

[A] former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.

(Citation and punctuation omitted.) Stover v. Tipton, 252 Ga. App. 427, 428 (555 SE2d 151) (2001). “Settlement is, in and of itself, generally construed to be a final disposition of any claim against a party to settlement by a party to the settlement arising out of the subject incident, unless remaining claims are specifically reserved by any of the parties.” (Citations and emphasis omitted.) City of Demorest v. Roberts & Dunahoo Properties, 288 Ga. App. 708, 711 (1) (655 SE2d 617) (2007). Given that the dismissals and the settlement agreement incorporated in these dismissals were entered on March 17, 2011, claims based on acts that occurred after that date were not actually litigated and are not barred. Stover, 252 Ga. App. at 428. We therefore examine Nice Financial’s four claims to determine whether they are based on acts that occurred between March 17, 2011, and June 2011.

(a) Claim one: attorney fees.

Nice Financial argues that the trial court erred by dismissing its claim based on the appellees’ use of Nice Financial’s funds to pay personal legal fees for appellees Sohail Ali and Aziz Hussain. In its complaint, Nice Financial alleged that “[o]n behalf of himself and Defendant Hussain, Defendant Ali authorized the payment of approximately $122,441.40 in attorneys’fees [and] $6,687 in related expenses by [Nice Financial].” Although the settlement agreement addressed the issue of Nice Financial’s attorney fees, it did not address the issue of the payment of the appellees’ attorney fees. The trial court held: “The alleged improper conduct complained of in the instant case predates the Settlement Agreement and the Dismissals.” But the complaint does not specify when appellees Aziz Hussain and Sohail Ali allegedly authorized payment of their personal legal fees, and the appellees point to no evidence showing that all of the payments occurred prior to the settlement agreement and dismissals. Thus, to the extent Nice Financial alleges that the appellees wrongfully used Nice Financial funds to pay their personal attorney fees between March 17, 2011, and June 2011, there exists a disputed issue of fact, and the trial court erred in granting summary judgment.

(b) Claim two: rent to Tara Road Properties, LLC.

Nice Financial alleges that the appellees instructed Nice Financial to pay rent to Tara Road Properties, LLC. The settlement agreement, however, clearly provided that Nice Financial and Tara Road Properties would enter an eight-year lease for 6380 Tara Boulevard; that Nice Financial would pay $5,000 per month rent for the property; and that Tara Road Properties and appellee Sohail Ali would not sell 6380 Tara Boulevard so long as Nice Financial remained a tenant in good standing. The settlement agreement bars Nice Financial’s claim based on the appellees instructing it to pay rent to Tara Road Properties, and the trial court properly granted the appellees summary judgment on this claim. City of Demorest, 288 Ga. App. at 711-712 (1).

(c) Claims three and four: mortgage payments for 7050 Tara Boulevard and 6380 Tara Boulevard.

Nice Financial alleges that the appellees wrongfully directed it to pay sums to the mortgage companies for properties at 7050 Tara Boulevard and 6380 Tara Boulevard, even though Tara Road Properties owned those properties. In its complaint, it does not specify when the payments were made, and the appellees point to no evidence showing that these alleged payments occurred prior to the dismissal. To the extent these payments were made after March 17, 2011, and before June 2011, there exists a disputed issue of fact, and the trial court erred in granting the appellees summary judgment because these payments were not contemplated in the earlier-entered settlement agreement and dismissals.

Decided March 14, 2013.

Ney, Hoffecker & Erck, Charles E. Hoffecker, for appellant.

Anderson, Tate & Carr, James C. Joedecke, Jr., Meredith N. Atwood, for appellees.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Ray, J., concur.


author: Boggs, Judge.

text:
    A12A2469.
    COSMO v. THE STATE.
    (739 SE2d 828)
   Boggs, Judge.

Dennis Cosmo appeals from his convictions of a violation of the “Computer or Electronic Pornography and Child Exploitation Prevention Act,” OCGA § 16-12-100.2 (d) (1), attempt to commit a felony (pandering), and three counts of criminal solicitation. He asserts that insufficient evidence supports his computer pornography conviction and that he is entitled to a new trial on the remaining charges against him based upon the trial court’s refusal to give an entrapment charge to the jury. We agree with both contentions and are therefore constrained to reverse.

When reviewing the sufficiency of the evidence,

the relevant question is 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). So viewed, the record shows that Cosmo responded to the following posting in the northwest Georgia personals section of www.craigslist.com: “Hey guys. We[’]re back in town and looking forward to return engagements with our old friends ... drop us a line if you’re interested.” The posting was placed by an undercover agent with the Northwest Georgia Crimes Against Children Task Force posing as a woman named “Amber,” and this agent began corresponding with Cosmo online. After Cosmo wrote that he was interested in “kinky fun,” the agent wrote:

[T]he girls and I provide a rather unique service to a select group of special gentlemen who are interested in experiences a bit outside the norm. Let’s just say that we sometime [s] help our friends take things beyond the legal limit. Most men aren’t interested in what we provide (or at least they don’t openly admit their interest). So if you’re interested in things that are a little over the line, you might want to get back with me.

When Cosmo inquired about the specific service, the agent replied, “I have three very unique daughters, and we (or one of us) can certainly provide almost any desired service____[0]ur service is a bit taboo.... Understand that our services are not free.” Cosmo then indicated that he was interested in “multiple girls in one bed” because he had “never been with two women at once.” Specifically, “the mother-daughter combo. Or maybe sisters.” After the agent disclosed that she was 32 and her daughters were 14, 12, and 9 years old, she asked Cosmo to explain “exactly what you want.” Cosmo wrote, “you definitely [sic] and leaning towards the 14 yo depending on price, maybe even 12 if I can afford three. . . . Have she done this before or the things I mentioned in the email and knows what to expect with this meet?” After the agent replied, “[t]he girls are very experienced,” Cosmo provided a detailed description of the sex acts he would like the 14-year-old to perform with him. A meeting was then arranged and Cosmo confirmed that he was “good with just you and [the 14-year-old] He also asked “Amber” to verify that she was not with the media or law enforcement because he had never “done anything like this and I too am cautious.” The agent replied:

I am not any part of any law enforcement organization or affiliated with the media. . . . I’m sure you understand that a police officer could not suggest these acts. Some also say that if you ask an officer directly if he or she is affiliated with the police they must answer truthfully. I’m not sure if that’s true, but I will tell you that I am not the police or anything related to law enforcement.

A woman posing as “Amber” then talked with Cosmo by telephone to arrange their meeting in more detail. During the course of telephone conversations and text messages with “Amber,” Cosmo indicated that he wanted to meet with her alone first before she brought her daughter and that he was “not comfortable with this underage thing.” In a text message, he also wrote “just you and me though right?” “Amber” then sent a text stating: she sensed “indecision” regarding the 14-year-old; “that is not the type of client i feel most comfortable with”; and “if I got the wrong impression I need to make other arrangements.” In a telephone call, “Amber” and Cosmo decided that he would meet alone with “Amber” first and that she would leave to go get her daughter “later.” After this conversation, Cosmo reassured her by text that “i think we are on the same page now. im already on the road there so im committed.” Three hours later and approximately twenty minutes before they were scheduled to meet, Cosmo again sent another text stating, “just you and me right?” Four minutes after receiving this text, “Amber” called Cosmo and the following conversation took place:

Amber: Hey, I just got your last text message. I just, are you that,' are you that conflicted about everything? It’s like I said, I just detect so much indecision, and if you’re, if you’re that indecisive, then, I don’t know, maybe we should make different arrangements.
Cosmo: What do you mean different arrangements?
Amber: Well, I’m just, I’m, I’m curious, what exactly it is that you want? I was under the impression that you were really clear in your messages exactly what was going to happen and, and now, you seem to be backing off of, of what we had arranged and I need to know in order to plan exactly what’s going to happen.
Cosmo: Uh, let’s just keep it at you and me. I’m not, I’m not, too comfortable with uh, with the, the underage thing.
Amber: Okay well then, um. Okay, well, it’s just my impression that, that you were, that you were certainly comfortable with that earlier. And see that’s, that’s kind of my unique business. That’s what I have to offer that’s different than, than other people. So, I, I don’t know, I’m just very confused by your intentions. But, that’s fine.
Cosmo: All right. I’m sorry about, for the confusion. Ya know, I’ve never done that before. I’m not too, too comfortable.
Amber: Okay well, it’s, that’s, I just, that’s fine. I just understood one thing from you, and um, I’m just getting a different impression now. So.
Cosmo: Yeah. I’m sorry for that.
Amber: All right, all right, that’s fine. Not a problem. All right. Well, uh, you’re this side of Calhoun?
Cosmo: Uh, yeah.
Amber: Okay. Well, I’ll see you soon then.
Cosmo: Did you, uh, did you already eat?
Amber: No, I haven’t.
Cosmo: You want to get something to eat?
Amber: Yeah we can do that. It’s not a problem. That sounds good.
Cosmo: All right. . . . What’s there around there?
Cosmo: Okay, do you want to, uh, where we are meeting? Amber: At the room. You got the number, right? It’s 114. It’s Quality Inn. All right, well that sounds great. I’ll see you soon.
Cosmo: Alright Amber, I’m sorry for the confusion, but, you know I, when it comes down to it, I don’t know if I could do it.
Amber: Okay well, I just, I just thought you were really clear earlier. And you seem to be, change your mind, and I’m not used to that. So I just thought I would try to clear things up with you.
Cosmo: Yeah. I understand, I’m sorry.
Amber: Okay. All right. See you soon.
Cosmo: All right. Bye, bye.

When Cosmo arrived at the designated motel room, he was taken into custody.

Cosmo testified that a desire for underage sex “wasn’t even in [his] mindset until Amber introduced it.” He explained that “Amber” brought up the topic of mother-daughter sex and he initially thought this meant that both would be over 18 years old. When she brought up the underage sex, he said what he “had to say to bring her [Amber] along,” and keep her interested in him because she was the only person communicating with him online the week before he was scheduled to deploy to Afghanistan. He explained that he “gave her a response that [he] expected she wanted to hear.” At one point in his testimony he explained that “in the whole World Wide Web, especially with sex, you can get people to say some things that are not in their nature.” He testified that his intent was only for “a one-on-one meet with one adult person” and that at no time did he intend to engage in sex with a minor.

He also testified that he had previous online experiences where he communicated with a person he thought was a woman that turned out to be a man. Based upon these experiences, he did not “believe everything I read on the Internet” and did not know whether “Amber’s” daughters even existed because he was “getting third party information from someone [he] never met in person.”

The State charged Cosmo in Count 1 with a violation of OCGA § 16-12-100.2 (d) (1), alleging that he “intentionally utilize[d] a computer Internet service to attempt to solicit, Brooke [the 14-year-old], a person believed by the accused to be a child, to commit child molestation and aggravated child molestation.” It also charged him with attempt to commit a felony in violation of OCGA §§ 16-4-1 (attempt) and 16-6-12 (pandering) with regard to his March 12, 2010 offer to commit sexual acts with the 14-year-old (Count 2); solicitation in violation of OCGA § 16-4-7 with regard to his solicitation of the adult, “Amber”, to commit aggravated child molestation (Count 3); two counts of solicitation in violation of OCGA § 16-4-7 with regard to his solicitation of the adult, “Amber”, to commit child molestation (Counts 4 and 5); and attempt to commit a felony in violation of OCGA §§ 16-4-1 (attempt) and 16-6-4 (child molestation) with regard to his March 14, 2010 communications with “Amber” to arrange for oral sex with the 14-year-old (Count 6); and attempt to commit a felony in violation of OCGA §§ 16-4-1 (attempt) and 16-6-4 (child molestation) with regard to his March 14,2010 communications with “Amber” to arrange for sexual intercourse with the 14-year-old (Count 7). The jury convicted Cosmo on Counts 1-5 and acquitted him of Counts 6 and 7. The trial court sentenced Cosmo to ten years on Counts 1-2 and three years on Counts 3-5, with all sentences to be served concurrent to Count 1, the first twelve months to be served in a probation detention center, and the remainder on probation.

1. Cosmo contends insufficient evidence supports his conviction under OCGA § 16-12-100.2 (d) (1) because the State failed to prove that he interacted with a child or a person he believed to be a child. This Code section provides:

It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

(Emphasis supplied.) Cosmo asserts that because the State’s evidence failed to show any interaction between himself and a child or a person he believed to be a child, insufficient evidence supports his conviction. We agree based upon the particular facts and circumstances of this case.

“Where the violation of a statute is made criminal, it must be tested by the rule of strict construction applicable to criminal statutes.” Burmaster v. State, 233 Ga. 753, 755 (213 SE2d 650) (1975). “[I]n applying this rule the plain meaning of language must not be disregarded, but will be given full effect.” Cargile v. State, 194 Ga. 20, 23 (2) (20 SE2d 416) (1942). And “[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.” (Citation and punctuation omitted.) Frix v. State, 298 Ga. App. 538, 542-543 (1) (a) (680 SE2d 582) (2009). We therefore agree with Cosmo’s contention that the plain meaning of the phrase “seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act” cannot be construed to encompass his communication with only an adult or a person known to be an adult. We must therefore reverse his conviction under OCGA § 16-12-100.2 (d) (1) (Count 1). Compare Bolton v. State, 310 Ga. App. 801, 805 (1) (714 SE2d 377) (2011) (State presented sufficient evidence to support conviction under OCGA § 16-12-100.2 (d) (1) based in part upon evidence that defendant believed he was corresponding online with a 15-year-old girl); Logan v. State, 309 Ga. App. 95, 100 (2) (b) (709 SE2d 302) (2011) (State presented sufficient evidence to support conviction under same Code section based in part upon evidence that defendant believed he was corresponding online with a 14-year-old girl).

2. Cosmo contends that he is entitled to a new trial on his remaining convictions because the trial court erred by denying his request for a charge on his defense of entrapment. The record shows that the trial court denied Cosmo’s request for this charge based upon its belief that Cosmo must admit all elements of the crime, including intent, in order to obtain an entrapment charge.

As a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. Gregoroff v. State, 248 Ga. 667, 669-670 (285 SE2d 537) (1982).

St. Jean v. State, 255 Ga. App. 129, 130 (564 SE2d 534) (2002). The Supreme Court of Georgia, however, has also recognized the following exception to the general rule:

[W]hen the State’s case shows evidence of entrapment and the defendant offers no evidence of entrapment inconsistent with his defense that he did not commit the crime, the defendant is not required to admit the commission of the crime in order to be entitled to a charge on entrapment.

Gregoroff, supra, 248 Ga. at 672. In this case, Cosmo “presented evidence of entrapment that arguably was not inconsistent with his denial of the commission of the crime; therefore we must look to the evidence presented by the State to determine whether appellant was entitled to a charge on entrapment.” St. Jean, supra, 255 Ga. App. at 130.

Entrapment consists of three distinct elements: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.”

(Citations, punctuation and footnote omitted.) Ellzey v. State, 272 Ga. App. 253, 256 (1) (612 SE2d 77) (2005). And, “[o]nly ‘slight evidence’ is required to authorize a charge on a subject.” (Citation, punctuation and footnote omitted.) Id. at 257 (1). In this case, the evidence presented by the State showed that the idea for the commission of the crime originated with a state agent. It also shows that Cosmo may have been induced by “Amber’s” repeated statements that if the “over the line” services she offered were not what Cosmo was looking for, she hoped that he could find the companionship he was looking for elsewhere, as well as her statement that “she was not really sure why [Cosmo] would need her services.” Finally, the State also presented evidence that Cosmo may not have been predisposed to commit the crime as he informed “Amber” by e-mail “[p] lease understand i have not done anything like this ... I am just a man with an overactive sex drive,” and by two separate text messages attempting to confirm “just you and me though right?”

Decided March 14, 2013

Adam M. Hames, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

While the State also presented evidence “authorizing rejection of an entrapment defense, there was evidence that would have enabled the trier of fact to carry on a legitimate process of reasoning regarding whether [Cosmo] had been entrapped.” Ellzey, supra. Although we view the content of some of Cosmo’s e-mails with repugnance, this Court cannot allow our personal distaste to erode our obligation to ensure that criminal defendants receive a fair trial and the jury charges to which they are entitled. We must therefore conclude that the trial court’s failure to charge on entrapment was reversible error and that Cosmo is entitled to a new trial on Counts 2-5 of the State’s indictment. See Gregoroff, supra, 248 Ga. at 672; Ellzey, supra, 272 Ga. App. at 257 (1).

Judgment reversed. Doyle,

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

       The jury found Cosmo not guilty of attempt to commit child molestation and attempt to commit aggravated child molestation.


author: MILLER, Presiding Judge.

text:
    A12A2435.
    CARTER v. SCOTT.
    (750 SE2d 679)
   MILLER, Presiding Judge.

Christopher Scott sued Merrill Carter, as executor of the estate of Dr. Gordon W. Jackson, for injuries Scott allegedly sustained when Jackson kicked him in the knee. At the time of the alleged injury, Jackson was a resident of an advanced Alzheimer’s unit at the assisted living facility where Scott worked as a security guard. Carter answered, raising several defenses, including lack of mental capacity. Scott moved for partial summary judgment on the issue of Jackson’s lack of mental capacity. Carter filed a cross-motion for summary judgment. The trial court granted Scott’s motion for partial summary judgment, and denied Carter’s motion. This Court granted Carter’s application for interlocutory appeal to review the trial court’s decision. On appeal, Carter contends that Jackson, who was an institutionalized mental patient, owed no duty to Scott. Carter also contends that Scott assumed the risk of his injuries as a matter of law. For the following reasons, we affirm the grant of partial summary judgment to Scott on the issue of Jackson’s lack of mental capacity. We also affirm the denial of summary judgment to Carter on that issue. However, we reverse the denial of summary judgment to Carter on the issue of whether Scott assumed the risk of his injuries. Accordingly, the trial court’s decision is affirmed in part and reversed in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) Geico Gen. Ins. Co. v. Wright, 299 Ga. App. 280 (682 SE2d 369) (2009).

So viewed, the evidence shows that Jackson began residing at Carlyle Place (hereinafter “the facility’) in 2003. Thereafter, Jackson suffered a dramatic decline in his mental capacity as a result of progressive Alzheimer’s disease. In September 2008, when Jackson exhibited agitation, aggression and combative behavior, he was transferred to the facility’s Alzheimer’s unit.

On the night of December 23, 2008, Jackson was involved in a physical altercation. Scott, who worked as a security guard at the facility, received a call on his radio informing him of the fight. Upon arriving at the scene of the fight, Scott observed Jackson swinging and striking a nurse with his fists. Scott moved between Jackson and the nurse and separated them to break up the fight. Another resident then hit Scott in the head with her hand, and Jackson kicked Scott in the left knee, causing Scott’s leg to buckle because of the pain.

Jackson died in November 2010, and his daughter, Carter, was appointed as executor of his estate. In August 2011, Scott brought suit against Jackson’s estate seeking to recover for the injuries he allegedly suffered as a result of Jackson’s actions. Carter answered, raising the affirmative defenses of lack of mental capacity and assumption of the risk.

Scott moved for partial summary judgment, asserting that, as a matter of law, Jackson’s documented lack of mental capacity did not relieve him of liability. Carter filed a cross-motion for summary judgment, contending that Jackson, an institutionalized Alzheimer’s patient, lacked capacity to control his conduct, and owed no duty of care to Scott, who was a paid employee of that institution. Carter also contended that Scott assumed the risk of his alleged injuries as a matter of law. The trial court granted Scott’s motion for partial summary judgment. The trial court denied Carter’s motion for summary judgment on the mental capacity defense, finding that “an insane person is liable for his torts the same as a sane person.” The trial court also denied Carter’s motion for summary judgment on the issue of whether Scott assumed the risk, finding that the factual record contained a material dispute that required jury resolution of that issue.

1. Carter contends that the trial court erred in granting Scott’s motion for partial summary judgment, and denying her motion for summary judgment on the mental capacity defense. Specifically, Carter contends that the trial court should have adopted a rule that an institutionalized mental patient, who lacks capacity, owes no duty to an employee of the institution whose very duties contemplate dealing with patients who pose a risk of violent conduct. We disagree. Carter acknowledges that Georgia law clearly provides that

in a civil action for an injury done to the person or property of another, the intent is generally immaterial, and the rule is that an insane person is liable for his torts the same as a sane person, except for those torts in which malice, and therefore intention, is a necessary ingredient. In respect to this liability[,] there is no distinction between torts of nonfeasance and of misfeasance; and consequently an insane person is liable for his injuries caused by his tortious negligence. Insane persons are held to this liability on the principle that where a loss must be borne by one of two innocent persons, it shall be born by him who occasioned it.

(Punctuation omitted.) Central of Ga. R. Co. v. Hall, 124 Ga. 322, 333 (52 SE 679) (1905); see also Continental Cas. Co. v. Parker, 167 Ga. App. 859, 860 (1) (307 SE2d 744) (1983). Applying this principle in a suit for compensatory damages arising from an assault, this Court has found that the fact that the defendant was in the throes of a condition of unsound mind, and was therefore incapable of forming or having any mental intent to injure, was not a defense. See Sauers v. Sack, 34 Ga. App. 748, 750-752 (131 SE 98) (1925). Moreover, this Court has held that insanity or lack of competence is a defense only to an intentional tort. See State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 379-380 (2) (b) (364 SE2d 62) (1987).

Although Carter argues that an exception to this rule should be made for an institutionalized mentally disabled person who injures a paid caregiver or other staff person, the cases Carter cites in support of her argument are not cases decided by Georgia’s courts and have no binding precedential value. Georgia law provides that Jackson’s mental deficiencies cannot relieve him of liability for his negligent acts. See Central of Ga. R. Co., supra, 124 Ga. at 333; Continental Cas. Co., supra, 167 Ga. App. at 860. Therefore, we affirm the trial court’s grant of partial summary judgment to Scott, and the trial court’s denial of summary judgment to Carter on this ground.

2. Carter also contends that the trial court erred in denying her motion based upon her assumption of the risk defense. Carter argues that the undisputed evidence established without question that Scott assumed the risk of his injuries and was precluded from recovering as a matter of law. We agree.

Although Georgia law provides that Jackson can be held liable for his negligence, the crux of this case pertains to the application of assumption of risk principles. OCGA § 51-11-2 provides the statutory basis for the assumption of risk defense, stating that “no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind.” Moreover, it is well settled that an adult of ordinary intelligence assumes the risk of possible injury when he deliberately and voluntarily joins in a fight, or enters into a fight for the purpose of breaking it up. See Cornelius v. Morris Brown College, 299 Ga. App. 83, 86 (3) (681 SE2d 730) (2009); Fagan v. Atnalta, Inc., 189 Ga. App. 460, 462 (376 SE2d 204) (1988).

Decided February 22, 2013

Reconsideration denied March 15, 2013.

Jones, Cork & Miller, Thomas C. Alexander, Renee S. Rainey, for appellant.

Joel M. Grist, Jr., for appellee.

Scott admitted in his affidavit in support of his motion for summary judgment that he intervened in the fight. Thus, the evidence clearly and palpably shows that Scott was injured when he attempted to break up the fight between Jackson and the nurse, and “only one conclusion is permissible here: that [Scott] deliberately interjected himself into the [fight] and assumed the risk of injury by voluntarily confronting those who had begun it.” (Citation and punctuation omitted.) Cornelius, supra, 299 Ga. App. at 86 (3). Accordingly, we find that based upon the facts and law Scott assumed the risk. Therefore, we reverse the trial court’s denial of Carter’s motion for summary judgment on this ground.

In sum, we affirm the partial grant of summary judgment to Scott because Jackson’s mental deficiencies did not relieve him of liability for his negligent acts. For the same reason, we affirm the denial of summary judgment to Carter on the issue of Jackson’s mental capacity. However, we reverse the denial of summary judgment to Carter on the defense of assumption of the risk, because Scott assumed the risk of his injuries as a matter of law and fact.

Judgment affirmed in part and reversed in part.

Ray and Branch, JJ., concur.

       Carter also contended in her answer and on appeal that Scott’s sole and exclusive remedy was a workers’ compensation claim because the injury occurred on his job. At oral argument before this Court, Scott’s counsel admitted that Scott had received workers’ compensation benefits for his injury. The Court notes, however, that injured employees who receive workers’ compensation payments retain their right to bring an action against third-party tortfeasors. See Coker v. Deep South Surplus of Ga., 258 Ga. App. 755 (574 SE2d 815) (2002); see also Ga. Star Plumbing v. Bowen, 225 Ga. App. 379, 380 (484 SE2d 26) (1997).

       Carter argued in her appellate brief and in oral argument that Scott assumed the risk of his injuries because he was hired as a security guard to control the precise dangers he encountered. Carter further analogized this case to the Fireman’s Rule, which provides that “[a] public safety officer cannot base a tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope.” (Citations and punctuation omitted.) Martin v. Gaither, 219 Ga. App. 646, 651 (466 SE2d 621) (1995). We need not reach these contentions because we find that Scott assumed the risk as a matter of law.


author: PHIPPS, Presiding Judge.

text:
    A12A1726.
    SMITH v. THE STATE.
    (740 SE2d 174)
   PHIPPS, Presiding Judge.

Thaddeus Tyrell Smith appeals his convictions for aggravated child molestation, child molestation, and two counts of cruelty to children in the first degree. He contends that the evidence was insufficient to support his convictions and that, for sentencing purposes, his convictions for child molestation and cruelty to children must be vacated because they merged with the crime of aggravated child molestation. For the reasons that follow, we affirm.

1. Smith contends that the evidence was insufficient to support his convictions. We disagree.

In resolving [Smith’s] challenge to the sufficiency of the evidence, we view the evidence in a light favorable to the jury’s verdict. Weighing the evidence and determining witness credibility are beyond the purview of this [c]ourt. We simply assess whether the evidence was sufficient to find [Smith] guilty beyond a reasonable doubt.

Viewed in this light, the evidence showed the following. In February 2007, the mother of then seven-year-old C. W. questioned the child regarding an alleged incident of C. W. acting out sexually with another child; C. W. had allegedly tried to kiss a boy whose pants were pulled down. The mother testified that C. W. initially denied the allegations. According to the mother, she explained to C. W. that she needed to know why C. W. felt as though her conduct was okay. The mother testified that C. W. started shaking and crying, and said “Tyrell did it to me.” C. W. further told her mother that “Tyrell,” who was her mother’s former boyfriend, had hurt her and had told her not to tell anyone. The next day the mother took C. W. to a police station to make a report. C. W. was interviewed and examined by various professionals.

The mother testified that she had begun dating Smith in 2003, when C. W. was three years old. Their relationship progressed and about six to seven months later, she and C. W. moved in with Smith. During the time that C. W. and her mother lived with Smith, C. W. attended a “Head Start” program during the daytime. After living with Smith for seven to eight months, the mother ended her relationship with Smith, and she and C. W. moved out of Smith’s home. The mother and C. W. moved into an apartment, and C. W. started kindergarten. The mother and Smith dated for a total of one and one half years. As far as C. W.’s contact with Smith after the mother’s relationship with Smith had ended, the mother testified that on one occasion when C. W. was seven years old, Smith, alone, had taken his infant son and C. W. to a restaurant for a birthday party.

At the time of trial, C. W. was ten years old. C. W. testified, using anatomical drawings, that on more than one occasion, Smith had put his “private part” inside her front private part, and on the outside and inside of her back private part. C. W. testified that these acts occurred when she was in the Head Start program. She also recalled that Smith had touched her in “both” of her private parts, at his apartment, after he had taken her and his infant son to a restaurant. C. W. testified that she had bad memories of Smith touching her when she was in the Head Start program.

A clinically licensed social worker who interviewed C. W. testified that C. W. told her that Smith had placed his private part inside her “bottom” and inside her “tootie,” too.

(a) Child molestation and aggravated child molestation. A person commits the offense of child molestation when he “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The indictment pertinently charged that Smith committed child molestation when he “did an immoral or indecent act to [C. W.], a child under the age of 16, with the intent to arouse or satisfy the sexual desires of the accused, by touching her vaginal area with his penis.”

A person commits the offense of aggravated child molestation when he “commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” A person commits the offense of sodomy when he “performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” The indictment pertinently charged that Smith committed aggravated child molestation when he “did an immoral or indecent act to [C. W.], a child under the age of 16, with the intent to arouse or satisfy the sexual desires of the accused, and which involved an act of sodomy, by touching her anus with his penis.”

“[T]he testimony of a victim of child molestation or aggravated child molestation need not be corroborated.” “The testimony of one witness is generally sufficient to establish a fact.” And

[witnesses are not required to describe the acts constituting the commission of crimes in statutory or technical language in order to prove the commission of such acts. Rather, the terms used by witnesses to describe criminal acts may be considered in context to provide meaning, and jurors can be presumed to have some knowledge of slang expressions in common parlance in the vernacular.

Here, the victim’s testimony, use of anatomical drawings, and use of the term “private parts” to describe the touching that occurred authorized the jury to infer contact between Smith’s penis and C. W.’s vagina, and Smith’s penis and C. W.’s anus, and established the child molestation and aggravated child molestation charges as alleged in the indictment. Thus, C. W.’s testimony was sufficient to support Smith’s convictions for child molestation and aggravated child molestation.

Smith concedes that C. W.’s “testimony alone [was] sufficient to sustain a conviction under Section 16-6-4.” But he asserts that “there were other witnesses [’] testimony that should be viewed in conjunction with the testimony of [C. W.].” However, Smith’s argument addresses conflicts in the testimony and, as such, goes to the weight to be given to such evidence, which is solely in the province of the jury and does not provide a basis for reversal on appeal. Furthermore, “[t]o the extent [C. W.’s] testimony at trial was not entirely consistent with her former statements to the social worker, this presented a credibility question to be resolved by the jury.”

(b) Cruelty to children in the first degree. “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” The indictment charged Smith with two counts of cruelty to children in the first degree, in that Smith “did maliciously cause [C. W], a child under the age of 18, cruel mental pain by touching her vaginal area with his penis” and that Smith “did maliciously cause [C. W], a child under the age of 18, cruel mental pain by touching her anus with his penis.”

The determination of what is cruel or excessive physical or mental pain is to be made by the jury. “Cruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain (in this instance, mental rather than physical pain). There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury. Moreover, a determination of what constitutes excessive mental pain need not depend solely on the victim’s testimony.

C. W. testified that when she was in the Head Start program, she had bad memories about Smith touching her. The mother testified that C. W. told her that Smith had hurt her, and that she had told Smith to stop several times and he refused. The mother testified that after C. W.’s outcry, she had not talked with C. W. about what Smith had done “because when you bring it up, she gets really hurt, sick-looking, her face,” and she “shuts down.”

The mother recalled that shortly after Smith had taken C. W. to the restaurant for a birthday party, C. W, who was an honor roll student and generally did not have behavioral issues, started getting in trouble at school. The mother described: “[S]he was getting really angry and pushing children and just not — not her normal sweet self.” The mother recalled also that within a month or two after she and C. W. had moved in with Smith, C. W, who for a year had been fully trained to use the toilet, “regressed to wetting the bed at night,” and “[e]ven to this day she still wears Pull-Ups.” The mother further recalled that C. W. started requiring the use of a night-light around the time that she and C. W. moved in with Smith. The mother testified that after the disclosure of Smith’s molestation of C. W, the child had attended counseling sessions. The evidence was sufficient to support the jury’s finding that Smith’s acts caused C. W. cruel mental pain.

2. Smith contends that, for sentencing purposes, his convictions for child molestation and cruelty to children must be vacated because they merged with the crime of aggravated child molestation. We disagree.

In Drinkard, v. Walker, the Supreme Court of Georgia disapproved the “actual evidence” test and adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6 (l). Under the “required evidence” test, “[a] single act may constitute an offense which violates more than one statute, and if each statute requires proof of an additional fact which the other does not, [a] ... conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

(a) Smith’s contention that the trial court erred in failing to merge the child molestation count into the aggravated child molestation count for sentencing is without merit since each of those counts was a separate and distinct crime. Smith was charged with child molestation for touching C. W.’s vaginal area with his penis; and he was charged with aggravated child molestation for committing an act of sodomy, by touching C. W.’s anus with his penis. Therefore, the crimes did not factually merge.

(b) Smith’s contention that the trial court erred in failing to merge the cruelty to children counts into the aggravated child molestation count is also without merit. The offense of aggravated child molestation, but not cruelty to children, required proof that C. W. was a child under 16 years of age and that Smith performed an immoral or indecent act upon C. W. with the intent to arouse or satisfy Smith’s sexual desires. The offense of cruelty to children, but not aggravated child molestation, required proof that C. W. was a child under 18 years of age who was caused cruel mental pain. Each crime required proof of at least one additional element that the other did not. Accordingly, the cruelty to children crimes did not merge with the aggravated child molestation crime.

Decided March 15, 2013.

Clarissa F. Burnett, for appellant.

J. Bradley Smith, District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Best v. State, 279 Ga. App. 309 (1) (630 SE2d 900) (2006) (footnote omitted).

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-2 (a) (1).

        Mote v. State, 297 Ga. App. 13,14 (1) (a) (676 SE2d 379) (2009) (citation and punctuation omitted).

        Cortez v. State, 286 Ga. App. 170, 172 (1) (a) (648 SE2d 488) (2007) (footnote omitted).

        Flewelling v. State, 300 Ga. App. 505, 508 (1) (685 SE2d 758) (2009) (citations and punctuation omitted).

       See Hargrave v. State, 311 Ga. App. 852, 856 (2) (717 SE2d 485) (2011) (child molestation conviction affirmed; victim used anatomical drawings to indicate that defendant touched her on her “private part”); Gioia v. State, 307 Ga. App. 319, 320 (1) (704 SE2d 481) (2010) (convictions for aggravated child molestation and child molestation affirmed where descriptions of acts using the terms “private parts” and “private area” were sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt).

       See Keith v. State, 279 Ga. App. 819, 821 (2) (632 SE2d 669) (2006) (child’s testimony alone was sufficient to support conviction for child molestation).

        Payne v. State, 269 Ga. App. 662, 664 (605 SE2d 75) (2004).

        Hargrave, supra (citation and punctuation omitted).

       OCGA § 16-5-70 (b).

        Bunn v. State, 307 Ga. App. 381, 382-383 (1) (a) (705 SE2d 180) (2010) (citations and punctuation omitted).

       See id.; Keith, supra at 822 (3) (evidence sufficient to support finding of cruel and excessive mental pain where victim became upset when recounting incident and had to go to counseling to help her cope).

       281 Ga. 211 (636 SE2d 530) (2006).

       Id. at 214.

        Ledford v. State, 289 Ga. 70, 72 (1) (709 SE2d 239) (2011) (citation and punctuation omitted).

       See Sarratt v. State, 299 Ga. App. 568, 573 (3) (683 SE2d 10) (2009).

       See id.; Metts v. State, 297 Ga. App. 330, 336 (5) (677 SE2d 377) (2009) (child molestation did not merge into aggravated child molestation where the offenses were proven by different acts of molestation).

       See Chandler v. State, 309 Ga. App. 611, 614-615 (3) (710 SE2d 826) (2011).


author: McMillian, Judge. MCFADDEN, Judge,

text:
    A12A1831.
    LASKAR v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (740 SE2d 179)
   McMillian, Judge.

Joy Laskar, Ph.D., appeals the trial court’s order dismissing his petition for writ of certiorari for lack of jurisdiction. Laskar filed the petition to challenge a decision of the Board of Regents of the University System of Georgia (“Board”) upholding his dismissal from a position as a tenured professor at the Georgia Institute of Technology (“Georgia Tech”). The petition also named G. P. “Bud” Peterson, in his official capacity as president of Georgia Tech, as a Defendant. Because we find that the trial court lacked jurisdiction to consider the petition, we affirm the order of dismissal.

“We review a trial court’s ruling on a motion to dismiss de novo, viewing all allegations in the complaint as true.” (Footnote omitted.) Oconee Community Svc. Bd. v. Holsey, 266 Ga. App. 385 (597 SE2d 489) (2004). Thus, “[w]e owe no deference to a trial court’s ruling on questions of law and review such issues de novo under the ‘plain legal error’ standard of review.” (Citations omitted.) Laughlin v. City of Atlanta, 265 Ga. App. 61, 63 (592 SE2d 874) (2004).

So viewed, the record reflects that Laskar joined the Georgia Tech faculty as an assistant professor in 1995, became an associate professor in 1998, and received tenure in 2002. Each year, Laskar entered into a “Fiscal Year Employment Contract” with the Board setting out the terms of his employment. The contract is made expressly subject to applicable state and federal laws, Georgia Tech’s rules and regulations, and the bylaws and policies of the Board. In 2003, Laskar was appointed director of the Georgia Electronic Design Center (“GEDC”), an inter-disciplinary center at Georgia Tech “broadly focused on fostering technology [related to] communications applications.”

On May 17, 2010, Peterson sent Laskar a letter stating that a recent internal audit had revealed what appeared to be “substantial evidence of malfeasance” on Laskar’s part, including the misappropriation of Georgia Tech resources for the benefit of Sayana Wireless, LLC (“Sayana”), a company partly owned by Laskar. The letter also informed Laskar that he was suspended until Georgia Tech concluded an investigation into the matter. By letter dated June 15, 2010, Dr. Gary May, chair of the School of Electrical and Computer Engineering, notified Laskar that Georgia Tech intended to initiate dismissal proceedings against him, pursuant to the school’s faculty handbook. May’s letter explained that the first stage in the process was a meeting between Laskar and administrative officers to discuss a potential settlement. This meeting occurred, but the parties did not reach a settlement. The case then was referred to the Faculty Status and Grievance Committee (the “Grievance Committee”), which voted in favor of dismissal proceedings. May notified Laskar of the Grievance Committee’s decision and informed him that he was entitled to a statement of the charges against him and a formal hearing upon request. Laskar requested both by letter dated July 28, 2010.

Several months later, on October 6,2010, Laskar and his counsel received the statement of charges outlining five charges of wilful violation of various Board and Georgia Tech policies. Following a formal hearing in March 2011 before a Faculty Hearing Committee (the “Hearing Committee”), the committee submitted its report and recommendation to Peterson. The report found that one charge was proven in part, two charges were proven in full, and two charges were not proven, but the Hearing Committee concluded that the charges proven were “sufficiently egregious” to warrant Laskar’s dismissal due to his leadership position at GEDC. The Hearing Committee apparently did not notify Laskar of its findings, but instead on May 14, 2011, Peterson wrote Laskar informing him that he agreed with the Hearing Committee’s “recommendation” and that Laskar’s “tenure [was] revoked and [his] employment [was] terminated, effective immediately.” Laskar appealed Peterson’s decision to the Board. On August 10,2011, Laskar was informed by the Board’s Vice Chancellor for Legal Affairs that his appeal had been presented to the Board, which upheld the decision to terminate him, prompting Laskar to file his petition for certiorari. On appeal, Laskar contends that the trial court erred in finding that it lacked jurisdiction to consider his petition.

Under OCGA § 5-4-1 (a), “[t]he writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers,” with certain limitations not present here. Thus, the first step in weighing whether a trial court properly can hear a petition for certiorari is to determine whether the petition is seeking review of a judicial or quasi-judicial action or merely an administrative one:

A court [,] which is obliged to determine whether it has subject matter jurisdiction over a petition for writ of certiorari [,] must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers [ ] or whether the officer merely exercised administrative or legislative functions. If the officer exercised judicial powers, his or her actions are subject to review on certiorari; if, however, the officer exercised legislative, executive, or ministerial powers, any error cannot be corrected by certiorari. . . .

(Citation omitted.) Goddard v. City of Albany, 285 Ga. 882, 882-883 (1) (684 SE2d 635) (2009). Thus, courts “must look to the particular function performed ... in determining whether it was judicial or quasi-judicial in nature.” Mack II v. City of Atlanta, 227 Ga.App. 305, 310 (1) (489 SE2d 357) (1997).

The difference between an administrative function and a judicial/ quasi-judicial function generally turns on whether the parties were granted notice and the opportunity to be heard:

The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. The test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.

Goddard, 285 Ga. at 883 (1).

But the courts also consider whether the hearing officer “was then required to examine and weigh the evidence and make a decision according to the law — to exercise discretion and judgment in application of the law ... to a particular set of facts.” (Citation and punctuation omitted.) Rozier v. Mayor and Aldermen of the City of Savannah, 310 Ga. App. 178, 181 (712 SE2d 596) (2011) (petition for certiorari proper where hearing officer applied city beverage ordinance to facts). See also Mack II, 227 Ga. App. at 309 (1) (petition of certiorari proper for review of hearing officer’s quasi-judicial function in applying legal standards of res judicata and collateral estoppel to determine whether party entitled to a hearing under city code); Starnes v. Fulton County School Dist., 233 Ga. App. 182, 184 (503 SE2d 665) (1998) (pension board performed process “akin to a judicial act” where it weighed evidence, assessed witness credibility and applied “fact-intensive” law governing line of duty pensions to facts).

Thus, a “ ‘judicial action’ has been described as ‘an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered.’ ” (Citation omitted.) Mack II, 227 Ga. App. at 308 (1). Further, courts have recognized that for a judicial action,

[tjhere must generally be two or more litigants. An issue of law or fact must be joined by them, within the jurisdiction of the tribunal, with respect to property or some personal right in which the litigants are interested. Its conclusion must be binding upon the parties until reversed or set aside in the manner provided by law for opening up judgments of courts.

(Citation and punctuation omitted; emphasis supplied.) Southeastern Greyhound Lines v. Ga. Public Svc. Commission, 181 Ga. 75, 83 (181 SE 834) (1935).

Accordingly, we must focus on the function of the hearing officer and the process used to determine whether they were quasi-judicial or administrative in nature. The Georgia Tech faculty manual and the Board’s policy manual provide the same procedures for the dismissal of both tenured faculty members and nontenured faculty members during their contract term (the “Dismissal Procedures”). These procedures provide, in pertinent part, that a faculty member who receives notice of a pending dismissal has the right to request a hearing before a faculty hearing committee (the “Hearing Committee”) and to obtain a formal statement of the charges against him. The parties are then granted notice of the hearing, the right to counsel, the right to present sworn testimony and evidence after first being afforded a reasonable opportunity to obtain witnesses and documentation, and the right to cross-examination, although the Hearing Committee is not bound by the strict rules of evidence. Nevertheless, the Hearing Committee must make findings based solely on the evidence presented and then report its findings to the Georgia Tech president and the faculty member.

These findings, however, along with any recommendations regarding the appropriate penalty for any violations, are not binding on the faculty member, Georgia Tech or its president, and thus the Hearing Committee’s report does not determine the faculty member’s employment status. Rather, that decision is left to the president. The Dismissal Procedures provide that if the Hearing Committee finds that adequate grounds for dismissal have not been established, and the president does not agree, he need only “state the reasons in writing to the Committee for response before rendering a final decision.” And if the Hearing Committee recommends an academic penalty less than dismissal, the president is not required to follow this recommendation. Although the Dismissal Procedures do not specifically address the procedure to be followed when the Hearing Committee finds that dismissal is warranted, absolutely nothing in the procedures makes such a finding binding on the president. Moreover, in contrast to the requirement placed on the Hearing Committee, the Dismissal Procedures do not specifically require the president to base his decision solely on the evidence presented at the hearing. Rather, the final dismissal decision is left to the president, and if he decides that sufficient cause exists, he may dismiss the faculty member even if the Hearing Committee finds no adequate basis for such an action.

The Hearing Committee’s function, therefore, is analogous to that of the liquor license review board in What It Is, Inc. v. Jackson, 146 Ga. App. 574 (246 SE2d 693) (1978). The pertinent city ordinance in that case charged the board with “ ‘conducting] hearings on any charges which may be brought against any licensee under the police powers of the city where those charges may be the basis for suspension or revocation of the license and to report its findings and recommendations to the mayor.’” Id. at 575. The license review board conducted a hearing on charges that the license holder “had violated specific provisions of law at its place of business,” and recommended the revocation of the liquor license to the mayor, and the mayor approved the recommendation. Id.

Considering whether the license holder had the right to petition for certiorari, this Court noted first that the city ordinance did not grant the license holder an express right to “a trial in accordance with judicial procedure” because it provided that all hearings “ ‘shall be administrative”’ and did not require compliance with the evidentiary rules. But the Court also found that “the board was not authorized to enter any judgment but only was permitted to make a recommendation to the mayor which was not binding on him,” and thus the board’s authority “does not fall within the category of a judicial proceeding.” Jackson, 146 Ga. App. at 575-576. And “the mayor, who had only administrative or executive powers, could only approve or disapprove the board’s recommendation.” Id. at 576. The license holder, therefore, “was not as a matter of right entitled to any judicial hearing before him. The action of the mayor was administrative.” Id. Based upon all these factors, the Court concluded that the trial court properly dismissed the license holder’s petition for certiorari.

Although the Dismissal Procedures did not expressly label the Hearing Committee proceeding as administrative, this Court’s decision in Mack II clarified that neither descriptive terms nor a lack of judicial procedure control the analysis. Mack II, 277 Ga. App. at 308-309 (1). Instead, it is the “character and nature of the authorized function” that controls whether the hearing officer is acting judicially or administratively. (Citation and punctuation omitted.) Id. at 309 (1). The function of the Hearing Committee in this case, like the license review board in Jackson, was not judicial in nature because it did not render a binding decision, and the president, like the mayor, acted only administratively in accepting the recommendation.

We conclude, therefore, that despite the procedures for notice and a hearing before the Hearing Committee, the decision to dismiss Laskar was essentially an administrative one. Southeastern Greyhound Lines, 181 Ga. at 80. And at Georgia Tech, whatever the Hearing Committee decides, a tenured professor may be fired if in the president’s opinion good cause exists for his or her discharge. This case, therefore, is materially similar to the Supreme Court of Georgia’s holding in Southeastern Greyhound Lines that the Georgia Public Service Commission was acting administratively when, “after notice and opportunity to be heard and for reasonable cause,” it revoked a motor common carrier’s certificate of need because “in the opinion of the commission” the carrier was not providing adequate service. Id. at 79. See Ga. L. 1931, p. 199, §§ 2 (b) and 4 (d).

It is one thing to provide that a thing may be done if it is made to appear that under the law a certain situation exists; it is another thing to provide that a thing may be done if in the opinion of a named party a certain situation exists. The one is justiciable; the other is administrative.

As Southeastern Greyhound Lines demonstrates, neither the requirement that the Georgia Tech president find cause in order to dismiss Laskar nor the provision of notice and the opportunity to be heard alters the nature of his decision:

An act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act. . . . [Thus,] it must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as [opposed to] judicial, powers. ... It is the nature of the final act that determines the nature of the previous inquiry.

(Citations and punctuation omitted.) Southeastern Greyhound Lines, 180 Ga. at 80-81. Here, the final act resulting in Laskar’s discharge was not the Hearing Committee’s report, but rather the president’s finding that good cause existed to revoke Laskar’s tenure and terminate his employment, and that decision was an administrative one.

And although a faculty member may seek Board review of the president’s decision and the Board is required “to investigate the matter thoroughly’ before rendering a decision, the faculty member has no right to any further hearing on the matter. Rather, any opportunity for a notice and a hearing is restricted to the Hearing Committee, which acts merely in an advisory capacity to the president and by extension to the Board. Thus, the Board’s subsequent review of the president’s decision must also be considered administrative in nature.

The Dismissal Procedures in this case are thus distinguishable from the procedures followed in cases where our courts have found that a quasi-judicial action occurred. For example, in Morman v. Pritchard, 108 Ga. App. 247 (132 SE2d 561) (1963), the Board of Education of Richmond County discharged Morman from her teaching position, and she filed a petition for certiorari in court without first exercising her right of appeal to the State Board of Education. Morman’s discharge hearing was conducted pursuant to a statute that authorizes a “county, city or other independent board of education” to conduct evidentiary hearings to determine any “local controversy.” See OCGA § 20-2-1160 (a) (formerly Code of 1933, § 32-910). That statute provides that the board’s decision “shall be binding on the parties,” provided that they are granted a right of appeal to the Board of Education. Id. This Court concluded that the county board of education hearing was quasi-judicial in nature because the discharged teacher “had a right to appear . . ., had a right to be heard, had a right to notice in advance of the hearing, and had a right to present witnesses and give evidence before the board, and the decision of the board was binding on the board and on the teacher concerned.” Morman, 108 Ga. App. at 253 (1) (b). See also, e.g., Mack II, 227 Ga. App. at 309 (appellate procedure in city code judicial in nature where hearing officer required to make a decision according to the law to resolve adverse claims); Bd. of Commissioners of Effingham County v. Farmer, 228 Ga. App. 819 (493 SE2d 21) (1997) (board acted judicially where it granted terminated employee a public hearing and opportunity to present evidence to review final termination for cause). Although the hearing officers in these cases acted in a judicial capacity in rendering or reviewing a final decision, the Hearing Committee in this case acted more in a factfinding and advisory capacity for the Georgia Tech president, who alone had the authority to make the final decision. And the Board’s decision in Laskar’s subsequent appeal relied solely upon the existing administrative record. Accordingly, we find that the trial court properly held that it lacked jurisdiction to consider Laskar’s petition for certiorari.

We note, however, that Laskar is not without judicial recourse with regard to his dismissal. He had a written contract with the Board, incorporating the Dismissal Procedures, and even though the Board is a state agency protected by sovereign immunity, that defense “is waived as to any action ex contractu for the breach of any written contract entered into by the state or its departments and agencies.” (Punctuation, footnote and emphasis omitted.) Bd. of Regents of Univ. System of Ga. v. Ruff, 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012). See also Ga. Const. 1983, Art. I, Sec. II, Par. IX; Moffie v. Oglethorpe Univ., 186 Ga. App. 328, 329 (367 SE2d 112) (1988) (concluding that tenure provisions in a faculty handbook “of which plaintiff was aware, form a part of the plaintiff’s contract of employment”) (citation omitted). Similarly, he could have raised his due process claims in a direct action against the Board. See, e.g., McKinney v. Pate, 20 F3d 1550, 1557 (11th Cir. 1994), cert. denied, 513 U. S. 1110 (115 SC 898, 130 LE2d 783) (1995) (a claim under 42 USC § 1983 arises when the State refuses to provide procedural due process); Edmonds v. Bd. of Regents of Univ. System of Ga., 302 Ga. App. 1,11-12 (4) (b) (689 SE2d 352) (2009) (reviewing constitutional due process claim against Board filed by tenured Georgia Tech professor after he was suspended indefinitely).

Decided March 15, 2013.

Gaslowitz Frankel, Craig M. Frankel, LeAnne M. Gilbert, Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert P. Marcovitch, for appellant.

Judgment affirmed.

Barnes, P. J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully but reluctantly. I write separately to acknowledge the practical consequences of our decision.

We have rejected Dr. Laskar’s argument for a bright line between tenure litigation involving private institutions and such litigation involving public institutions. When such litigation involves private institutions, Dr. Laskar argues, tenure rights are enforceable in contract actions. See Moffie v. Oglethorpe Univ., 186 Ga. App. 328, 329 (367 SE2d 112) (1988). When such disputes involve public institutions, he argues, the proper procedure is certiorari from superior court pursuant to OCGA § 5-4-1 et seq.

Instead we have held that, as to public institutions, the available procedure turns on a close — and costly — examination of the institution’s procedures. Such an examination will need to be performed anew of the procedures at each public institution where such a dispute arises. Indeed if Georgia Tech has revised its procedures when it next faces such a dispute, its procedures will then need to be reexamined.

The people of Georgia would, in my opinion, be well served by a comprehensive undertaking to secure “the just, speedy and inexpensive determination” of actions arguably within the appellate and certiorari jurisdiction of our state and superior courts. See OCGA § 9-11-1. But such an undertaking falls within the competence and authority of the General Assembly.

Samuel S. Olens, Attorney General, Julia B. Anderson, Senior Assistant Attorney General, for appellee.

       We note that the Georgia Tech and Board policies applied hy the Hearing Committee do not have the force and effect of law. Because they relate to “the employment, compensation, tenure, terms, retirement, or regulation of the employees” of a state agency, they are not considered rules requiring promulgation under the Georgia Administrative Procedure Act, OCGA § 50-13-2 (6) (H), nor are they codified in the Georgia Administrative Code. But even if the policies could he considered a form of law, the functions of the Hearing Committee and the Georgia Tech president in Laskar’s dismissal proceedings are the determining factors in resolving the issue before us.

       The trial court reached a similar conclusion, finding that although the termination procedures in this case “may appear quasi-judicial, [Laskar] had no right under law to demand a trial in accordance with judicial procedure.” (Emphasis in original.)


text:
    A12A1852.
    BOMIA v. BEN HILL COUNTY SCHOOL DISTRICT et al.
    (740 SE2d 185)
   MILLER, Presiding Judge.

Deborah Bomia sued the Ben Hill County School District (the “School District”) and its transportation director, Angie Dopson, for malicious prosecution, false arrest and wrongful discharge arising from Bomia’s actions in leaving the scene and failing to report an accident involving the school bus she was operating. The trial court granted summary judgment to the defendants, finding that sovereign immunity barred Bomia’s claims. Bomia appeals, contending that sovereign and official immunity did not bar her claims against the School District or Dopson. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that Bomia was employed as a school bus driver with the School District. In January 2009, Bomia was operating a School District bus when she was involved in a motor vehicle accident. Bomia continued on her route and did not report the accident to law enforcement because she did not consider the damage to be significant.

Dopson subsequently reported the accident to the Ben Hill County Sheriff’s Office. Dopson also went to the sheriff’s department to request a copy of the police report. The sheriff’s office issued a traffic citation to Bomia for violating OCGA § 40-6-273 (Failure to Report an Accident). An application for a criminal warrant was prepared stating that Bomia had committed the offense of hit and run or leaving the scene of an accident. Following a hearing, the magistrate court dismissed the warrant application, and the traffic citation was also dismissed. Bomia was never arrested, placed in custody or detained as a result of the citation or the application for a criminal warrant.

The School District terminated Bomia’s employment for violation of local procedures and state bus driver laws, failing to report an accident and leaving the scene of an accident. The School District also sued Bomia to recover for the damage to the school bus, and obtained a judgment against her in the amount of $1,000. Bomia did not assert any counterclaims against the School District in this suit. Instead, Bomia filed the instant suit against the School District and Dopson, individually and in her official capacity, raising claims of malicious prosecution, false arrest and wrongful discharge. The School District and Dopson answered, raising the defenses of sovereign and official immunity. The School District and Dopson also filed a motion for summary judgment on these grounds, and the trial court granted their motion.

Bomia contends that sovereign and official immunity did not bar her claims against the School District or Dopson. We disagree.

Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [Sjtate, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [Bomia], not [the School District or Dopson], had the burden of [proof on this issue].

(Punctuation and footnotes omitted.) Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 193 (718 SE2d 55) (2011).

Under Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, sovereign immunity extends to a county-wide school district, such as the School District. See Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995). Except as specifically provided in the Georgia Constitution, a school district’s sovereign immunity may only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is waived and the extent of such a waiver. See Ga. Const., Art. I, Sec. II, Par. IX (e); see also Coffee County, supra, 216 Ga. App. at 294. Additionally, to the extent Bomia sued Dopson in her official capacity, it is well settled that suits against public employees in their official capacities are in reality suits against the State, and therefore involve sovereign immunity. See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001); Gilbert v. Richardson, 264 Ga. 744, 750 (4) (452 SE2d 476) (1994).

The Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq., grants some waivers to the State’s immunity; however, the GTCA expressly excludes school districts. See OCGA § 50-21-22 (5). For losses arising out of claims for the negligent use of a covered motor vehicle, sovereign immunity for local government entities, such as the School District, is waived up to certain limits which are increased to the extent that local government entities purchase commercial liability insurance in excess of the set limits. See OCGA § 36-92-2 (a) (3), (d) (3). However, the School District’s liability for damages in excess of the amount of immunity waived under OCGA § 36-92-2 applies only to damages which are sustained while such liability insurance is in force and only to the extent of the limits or coverage of the insurance policy. See OCGA § 33-24-51 (c).

1. In this case, the School District enjoyed sovereign immunity. See Coffee County, supra, 216 Ga. App. at 294. Nevertheless, Bomia argues that the School District waived its immunity up to the limits of its insurance coverage.

As the party seeking to benefit from a waiver, Bomia had the burden of establishing such waiver. See Ga. Dept, of Corrections, supra, 312 Ga. App. at 193. Furthermore, because Bomia is claiming that sovereign immunity was waived by the purchase of insurance, she had the burden of establishing that insurance protection covering her claims was procured and the limits of the insurance coverage available. See Woodard v. Laurens County, 265 Ga. 404, 406 (1) (456 SE2d 581) (1995). However, Bomia points to no evidence in the record, and we have found none, showing the existence of a liability insurance policy. Moreover, Bomia failed to show that the waiver of immunity under OCGA § 36-92-2 (a) for the negligent use of motor vehicles applied to her claims for malicious prosecution, false arrest and wrongful discharge because the School District’s alleged liability for those claims was not predicated upon the School District’s negligent use of a motor vehicle. See Woodard, supra, 265 Ga. at 406 (1); see also Tittle v. Corso, 256 Ga. App. 859, 864 (2) (569 SE2d 873) (2002) (holding that waiver of immunity under OCGA § 33-24-51 did not apply because sheriff’s deputy was not using patrol vehicle when alleged torts occurred). Since Bomia has failed to establish the waiver of sovereign immunity, her claims against the School District and Dopson in her official capacity were barred. See Teston v. Collins, 217 Ga. App. 829, 831 (2) (459 SE2d 452) (1995).

2. Bomia also argues that Dopson was not entitled to immunity from suit in her individual capacity because Dopson’s conduct involved wilfulness and malice. Bomia’s argument is unavailing.

The doctrine of official immunity, otherwise known as qualified immunity,

protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or [discretionary] acts performed with malice or intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Citations and punctuation omitted.) Murphy v. Bajjani, 282 Ga. 197, 198 (1) (647 SE2d 54) (2007).

Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task. In order for the written policy to impose a ministerial duty, the policy must mandate simple, absolute, and definite action and require the execution of a specific task without any exercise of discretion.

(Citations and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010).

Here, Bomia failed to point to any laws, regulations or policies setting forth ministerial duties for actions applicable to this case. Moreover, the record contains only a School District handbook which sets out the transportation supervisor’s discretionary actions in the event of a school bus accident. The handbook’s provision involving the transportation supervisor’s investigation of an accident does not contain duties which are so definite, simple or absolute that they impose a ministerial duty applicable to this case. See Smith v. Bulloch County Bd. of Commrs., 261 Ga. App. 667, 669 (1) (583 SE2d 475) (2003). Thus, Bomia failed to show that anyofDopson’s acts were ministerial, and Bomia’s argument that Dopson is not entitled to official immunity turns on whether Dopson performed her discretionary acts with malice or an intent to injure.

Decided March 15, 2013.

Dewey N. Hayes, Jr., for appellant.

Watson Spence, John M. Stephenson, for appellees.

A discretionary act “calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Murphy, supra, 282 Ga. at 199 (1). With regard to discretionary acts allegedly committed with actual malice or intent to cause injury, actual malice means a deliberate intention to cause the harm suffered by the plaintiff. See id. at 203 (4).

Contrary to Bomia’s claims, no evidence showed that Dopson acted or failed to act with a deliberate intention to cause Bomia’s alleged injuries. Notably, Dopson had a duty as transportation director to report the accident. While Dopson reported the accident, she did not prepare or issue the traffic citation. Moreover, the evidence did not show that Dopson sought a criminal warrant. Finally, Dopson did not make the decision to terminate Bomia’s employment. Dopson is entitled to official immunity in her individual capacity because her discretionary actions did not involve actual malice or an intent to cause injury. Accordingly, Bomia’s claims against Dopson in her individual capacity were barred.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Because we find that sovereign and official immunity barred Bomia’s claims against the School District and Dopson, we need not reach Bomia’s additional contention that the trial court erred in finding that she failed to provide evidence to establish the elements of her tort claims.

       OCGA § 40-6-273 requires drivers to report accidents resulting in property damage to an apparent extent of $500 or more.