author: Ray, Judge.

text:
    A12A0838.
    WHORTON v. THE STATE.
    (735 SE2d 7)
   Ray, Judge.

After a jury trial, Jackie Whorton was convicted of one count of enticing a child for indecent purposes, seven counts of child molestation, one count of incest, two counts of aggravated child molestation, and three counts of cruelty to children in the first degree. Whorton appeals the denial of his motion for new trial, arguing that the trial court erred in failing to provide a limiting instruction regarding similar transaction evidence and by not granting a request for a continuance, and that he received ineffective assistance of counsel. Whorton also challenges the sufficiency of the evidence. Finding no reversible error, we affirm.

As a threshold matter, we note that on appeal from a criminal conviction,

we view the evidence in the light most favorable to the jury’s verdict, and [Whorton] no longer enjoys a presumption of innocence. And we neither weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the jury.

Viewed in the proper light, the evidence adduced at trial shows the following: Whorton came to live with his daughter, his granddaughter G. G., and his grandsons at their home in Canada so that he could care for the children while their mother worked during the day. While Whorton was living in Canada, he took G. G. on several trips to her mother’s other home in Jones County, Georgia. During one of these trips, Whorton’s truck experienced transmission failure, requiring Whorton and G. G. to stay at a hotel for a week while the truck was repaired. At the hotel, Whorton forced G. G., over her objections, to watch a pornographic video. On at least two other trips to Jones County, G. G. and Whorton slept in the same bed. It was during one of the nights in Jones County that Whorton undressed G. G., who was 12 years old at the time, began to caress her, made her perform oral sex on him, and then engaged in sexual intercourse with her. G. G. testified that “[i]t hurt really bad.... I don’t know if it — he did it all the way or went halfway in. ...” On another of these trips, Whorton again undressed G. G. and attempted to engage in intercourse with her but was unsuccessful in maintaining an erection.

The summer after G. G. turned 13, she moved to the Jones County house with her family. Whorton again lived with the family and homeschooled G. G. and her brothers. G. G. testified that Whorton attempted sexual intercourse with her at least once while they lived in that house, but that she did not remember many of the details surrounding the incident because she had become “a pro at fading out and not feeling the pain.” G. G. also testified that Whorton would frequently fondle her inappropriately, “pull his pants down and flash [her],” and would force her to watch pornography on his computer. Whorton would also “pinch [G. G.’s breasts] or ... squeeze really hard” as punishment for bad behavior.

At some point after that, G. G. told Whorton that she believed she was pregnant. G. G. testified that this information made Whorton mad and that he “hit me and I fell to the floor, and then he just started kicking me in the stomach.” After this incident, G. G. testified that Whorton stopped trying to have sex with her because “[he] couldn’t get hard at all.” However, Whorton continued to visit G. G. in her room at night on a weekly basis and start “messing with me, and touching me, and trying to undress me.”

G. G.’s brothers shared a bedroom located next to her room. They testified that at least once a week, they would hear Whorton go into G. G.’s room at night, and G. G. would say “[n]o, no, stop it. Get out.”

G. G. testified that she never told anyone about the abuse because Whorton told her that she “would be the one to get in trouble ... if [she] told,” and that she would be “kicked out” and her mom would not believe her. At some point, G. G. felt that she “just had to get out of the situation [because she] couldn’t stand it no more.” So, she packed her bags and was ready to run away when she decided to confide in her mom first. When G. G. told her mother about the abuse, G. G.’s mother removed the children from the house. G. G. was then interviewed and submitted to a forensic examination at the Crescent House.

At trial, Dr. Debbie West, the doctor who conducted the forensic examination, testified that G. G. had two crescent shaped scars on her hymen that led the doctor to conclude that there had “been penetration through her hymen . . . consistent with sexual abuse.”

1. Whorton contends that the evidence presented was insufficient to sustain his convictions.

(a) Whorton specifically argues that the evidence was insufficient to sustain his conviction on Count 1 of the indictment, which charged him with enticing a child for indecent purposes by unlawfully enticing and taking G. G. into a bedroom for the purpose of committing child molestation. Whorton contends that this particular conviction cannot stand because G. G. and Whorton lived in the same home, and accordingly, there was “no evidence that [G. G.] was enticed into any bedroom at any time.”

Under OCGA § 16-6-5 (a) “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” The statute “has been held to include the element of ‘asportation,’ and our Supreme Court has held that this element is satisfied whether the ‘taking’ involves physical force, enticement, or persuasion.” Further, “[a]ny asportation, however slight, is sufficient to show the taking element of enticing a child for indecent purposes.”

The case relied upon by Whorton, Henderson v. State, is inapposite. In Henderson, this Court found that there was no evidence of taking or asportation in a child molestation case where the interviews of the child witnesses indicated that the defendant would join the victims in whatever room they were already in when the molestation occurred rather than entice them to come into another room. In the present case, on the other hand, the transcript of G. G.’s interview at the Crescent House showed that Whorton had a computer in his bedroom that sat next to his bed, and when G. G. was in another part of the house, Whorton would call G. G. into his bedroom and show her “different porno sites, pictures of naked men, naked women.” We find that there was sufficient evidence to sustain Whorton’s conviction on Count l.

(b) Whorton next argues that the evidence was generally insufficient to sustain the remainder of his convictions, arguing that because there were “many inconsistencies and contradictions in [G. G.’s] testimony [that] destroy her credibility, and [because] there was no real corroboration in the case, the conviction should be set aside.” Specifically, Whorton points to G. G.’s testimony that she could not remember exactly what acts of abuse took place on certain trips with her grandfather, that although G. G. testified that her mother was in the home as she yelled for help during one of the first incidents of abuse, she did not come into the living room to check on her daughter, and that when asked by a counselor at the Crescent House to draw a picture of a penis, she drew a picture of a circumcised penis even though she testified at trial that her grandfather’s penis was uncircumcised. According to Whorton, these inconsistencies, combined with G. G.’s “memory issues” concerning certain facts, require a finding that no reasonable jury could have found the victim’s testimony to be credible. Thus, Whorton argues, because G. G. was not credible and because the State’s evidence did not conclusively prove that G. G.’s hymen had been torn via sexual intercourse, his convictions must be reversed due to insufficient evidence.

“When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, 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.” It is well settled that

it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of the witnesses. Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Moreover, “the victim’s testimony alone is generally sufficient to establish the elements of child molestation.”

In this case, the acts of molestation took place when Whorton was alone with G. G., so there were no eyewitnesses who could provide direct testimony about what occurred. Even if uncorroborated, however, the victim’s testimony was sufficient to support Whorton’s convictions on each count, as indicted. Further, as noted above, the expert testimony of the physician who conducted the forensic examination showed that G. G. had scarring on her hymen leading the doctor to conclude that there had been penetration through her hymen consistent with sexual abuse.

Consequently, because the victim’s testimony was legally sufficient to support Whorton’s convictions, and because the jury, alone, was authorized to judge the credibility of G. G.’s testimony, Whorton’s challenge to the sufficiency of the evidence must fail.

2. Whorton next contends that the trial court erred in denying his motion for a continuance. It is well settled that this Court will not reverse a trial court’s ruling on a motion for a continuance absent a manifest abuse of discretion. Further, “to be entitled to a new trial based upon the denial of his motion for a continuance, the defendant has the burden to show that he was harmed by that denial.”

Whorton’s trial counsel was hired 40 days prior to trial after his original attorney had to withdraw suddenly from the case after being arrested on charges of child molestation. Prior to agreeing to represent Whorton and filing an entry of appearance, Whorton’s trial counsel was notified of the trial date during a phone conference with the trial judge and the prosecutor. Whorton’s trial counsel sought a continuance at that time, but the trial court denied her motion. The week prior to trial, Whorton’s trial counsel contacted the trial court and informed the court that she was ready to proceed. However, trial counsel then filed a motion for continuance citing difficulties finding an expert witness willing to testify in support of Whorton’s key defense, that his diabetes-related complications left him unable to engage in sexual intercourse. The trial court denied the motion.

It is well settled that

[m]ere shortness of time does not by itself show a denial of the rights of the accused, and mere shortness of time will not reflect an abuse of the trial court’s discretion in denying a continuance, where the case is not convoluted and is without a large number of intricate defenses. Additionally, when there is no showing that a continuance would have benefit-ted the defendant, he has not established harm in the denial of the continuance, and the same cannot constitute reversible error.

In the present case, defense counsel accepted the representation with knowledge of the trial date and announced to the trial court a week earlier that she was ready to proceed with trial. Whorton’s case was not convoluted. There was no DNA evidence presented at trial, and the victim was the only eyewitness to the alleged crimes. Further, Whorton was able to present testimony from a medical expert and from his own physician in support of his defense. Whorton presented the testimony of Dr. Candi Nobles-James indicating that because of Whorton’s diabetes, he had low testosterone levels that could cause him to have difficulty in achieving and maintaining erections. Nobles-James also testified that as of the time of trial, two years after the molestation was reported, Whorton was impotent and likely had no interest in sex. Whorton also presented the testimony of his family physician that he had seen from 1996 to 2002, who testified that even though he made no notes on Whorton’s medical chart, he recalled a conversation where Whorton had complained about having erectile dysfunction.

Further, Whorton’s trial counsel was unable to demonstrate that he was harmed by the denial of the continuance. “To show harm, [Whorton] was required to specifically identify what other evidence or witnesses he would have put forth in his defense if his counsel had been given more time to prepare; speculation and conjecture are not enough.” Although Whorton’s counsel testified in the motion for continuance hearing that she hoped to find another expert witness to provide additional evidence that Whorton was impotent and suffered from erectile dysfunction, she did not specifically state what kinds of experts she was seeking and what additional testimony she thought they would provide. Accordingly, the trial court did not err in denying the motion for continuance.

3. At trial, G. G. testified to several other acts of sexual molestation by Whorton that occurred outside of Jones County prior to the incidents charged at trial. Whorton argues that the trial court erred in not providing a limiting instruction to the jury regarding this evidence of prior difficulties between the parties and that his trial counsel was ineffective for failing to object to this omission.

Although Whorton did submit a written request for limiting instructions prior to trial, no transcript of the jury charge is on the record, and the parties state that it was not recorded. Thus, this Court will presume that the trial court acted correctly.

Further, Whorton’s ineffective assistance claim as to this enumeration must fail because this issue was not raised at the hearing on Whorton’s motion for new trial. “The contentions of ineffectiveness not raised on motion for new trial by counsel appointed to represent [Whorton] after conviction are waived.”

4. Whorton contends that his trial counsel provided ineffective assistance in several other respects.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. As the appellate court, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.

(a) Whorton contends that his defense counsel rendered ineffective assistance by failing to move for a directed verdict as to Count 1 of the indictment, which charged Whorton with enticing a child for indecent purposes. However, as discussed in Division 1 (a), supra, the State presented evidence sufficient to survive such a motion for a directed verdict. Accordingly, Whorton’s trial counsel was not ineffective for failing to move for a directed verdict on this charge.

(b) At the conclusion of her cross-examination of G. G., Whorton’s trial counsel reserved the right to recall the victim to the stand, but she did not do so. Whorton alleges that this failure to recall G. G. to the stand constituted ineffective assistance.

At the motion for new trial, Whorton’s trial counsel testified that she noticed that G. G., who spent much of the trial waiting in an adjacent law library, “came into court, dressed, acted [like she was] taking the situation very seriously, and then, in the back,... [was] a lot more provocative in speech, dress, and thought.” However, neither in the motion for new trial nor on appeal does Whorton explain how bringing G. G. back to the stand to explain these inconsistencies in her dress and behavior would have changed the outcome of the trial. Further, defense counsel testified that she did not bring G. G. back to the stand to discuss this “provocative” behavior because she did not think it was wise to do so and she did not want to potentially violate the Rape Shield Statute. This strategy was reasonable, and “[a]s a general rule, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.”

(c) Whorton next argues that his trial counsel rendered ineffective assistance of counsel by failing to argue that others had equal access to Whorton’s computer on which pornographic material was found. However, this argument is without merit as Whorton was neither charged with nor convicted of possession of pornography. Accordingly, we find that the equal access doctrine does not apply to Whorton’s convictions and that his defense counsel did not provide ineffective assistance in failing to raise the defense.

Decided November 29, 2012.

Green B. Moore III, for appellant.

FredricD. Bright, District Attorney, Keagan W. Goodrich, Gregory L. Bushway, Assistant District Attorneys, for appellee.

(d) Arguing that it is error for the trial court to charge the jury on flight, Whorton contends that his trial counsel provided ineffective assistance by failing to object to improper comments made by the prosecutor to the jury. During closing argument, the prosecutor referenced evidence tending to show that Whorton intended to leave town and disappear while out on bond to avoid criminal charges. The prosecutor then stated that “[o]nly the wicked man flees when no man pursueth.” However, the trial court did not charge the jury on flight, and it is not error for the State to argue flight. Accordingly, we find that trial counsel did not render ineffective assistance for failing to object to this comment.

(e) Whorton next argues that his trial counsel rendered ineffective assistance by failing to object to improper bolstering and opinion testimony by the State’s witnesses. However, this argument is waived because it was not raised in Whorton’s motion for new trial nor was it argued before the trial court in the motion for new trial.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-5 (a).

       OCGA § 16-6-4 (a).

       OCGA § 16-6-22 (a).

       OCGA § 16-6-4 (c).

       Whorton was acquitted on three additional counts of cruelty to children in the first degree. OCGA § 16-5-70.

       (Punctuation and footnotes omitted.) Lipscomb v. State, 315 Ga.App. 437, 439 (727 SE2d 221) (2012).

       (Punctuation and footnote omitted.) Henderson v. State, 303 Ga.App. 531, 533 (2) (694 SE2d 185) (2010).

       (Punctuation and footnote omitted.) Id. at 533-534 (2).

       Id.

       Id. at 534 (2).

       See Hanson v. State, 305 Ga. App. 900, 900-901 (1) (700 SE2d 896) (2010) (evidence supported conviction for enticing a child for indecent purposes when defendant admitted, among other things, that he watched pornographic videos with a 12- or 13-year-old child). But compare Bragg v. State, 217 Ga. App. 342, 343 (1) (457 SE2d 262) (1995) (asportation element of enticing a child for indecent purposes was not satisfied by evidence that defendant threatened to punish children if they left or attempted to leave the room during showing of pornographic film; there was no evidence that defendant caused children to move toward place from which they could view movies).

       (Citation and punctuation omitted.) Knight v. State, 311 Ga.App. 367, 367 (1) (715 SE2d 771) (2011).

       (Citations and punctuation omitted.) Id. at 368 (1).

       (Citation omitted.) Id.; OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

        Holloway v. State, 278 Ga.App. 709, 712 (2) (629 SE2d 447) (2006).

       (Citation and punctuation omitted.) Williams v. State, 317 Ga.App. 248, 256 (3) (730 SE2d 726) (2012).

       (Citation and punctuation omitted.) Miller v. State, 303 Ga.App. 422, 423 (693 SE2d 637) (2010) (affirming the denial of a motion for continuance when trial court noted that defense counsel had accepted the representation and entered an appearance with knowledge of the trial date, and that he originally announced ready for trial).

       (Citation and punctuation omitted.) Id. at 424.

       Although Whorton’s trial counsel testified during the motion for new trial hearing that she would have liked more time and money to locate a urologist to do physical testing and to testify, that information was not before the trial court at the time it denied the motion. When reviewing “a trial corut’s ruling on a motion for continuance, we look at the evidence presented at the time of ruling, not at the evidence available at the motion for new trial hearing.” Foote v. State, 251 Ga. App. 427, 429 (1) (553 SE2d 644) (2001) (footnote omitted).

       Although the parties and the trial court refer to these incidents as similar transactions, they are best characterized as prior difficulties. “Unlike similar transactions, prior difficulties do not implicate independent acts or occurrences, hut are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus.” Withers v. State, 282 Ga. 656, 658 (2) (653 SE2d 40) (2007).

        See Sapp v. State, 290 Ga. 247, 249 (2) (719 SE2d 434) (2011). Both parties correctly note that we need not engage in the plain error analysis required by OCGA § 17-8-58 (b) because the trial occurred prior to the statute’s July 1, 2007, effective date. See Ga. L. 2007, p. 595, § 1.

       (Citation omitted.) Spear v. State, 270 Ga. 628, 632 (5) (513 SE2d 489) (1999).

       (Citations and punctuation omitted.) Gant v. State, 313 Ga.App. 329, 331 (1) (721 SE2d 913) (2011).

       See Patterson v. State, 272 Ga.App. 675, 679 (5) (b) (613 SE2d 200) (2005) (trial counsel did not provide ineffective assistance by failing to make a motion for a directed verdict when the evidence presented at trial was sufficient to survive such a motion).

       (Citation omitted.) Wright v. State, 274 Ga. 730, 732 (2) (b) (559 SE2d 437) (2002).

       See Clewis v. State, 293 Ga. App. 412, 415 (2) (667 SE2d 158) (2008) (applying equal access doctrine to charges of possession of child pornography).

        Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990) (“while the [S]tate may offer evidence of and argue flight, it shall he error for a trial court in a criminal case to charge the jury on flight”).

       See Spear, supra.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1195.
    NORFOLK SOUTHERN RAILWAY COMPANY v. SUN CHEMICAL CORPORATION et al.
    (735 SE2d 19)
   Branch, Judge.

Appellee Sun Chemical Corporation hired an ocean carrier to transport two containers of ink manufactured by Sun from Kentucky to Brazil. After the ocean carrier hired a freight forwarding company to arrange the shipment, the freight forwarder hired appellant Norfolk Southern Railway Company to carry the ink by rail from Kentucky to Savannah, where it would begin its ocean voyage to Brazil. The rail cars carrying the containers derailed, however, and the ink was destroyed. Sun and its insurer, Continental Insurance Company, sued Norfolk Southern for negligence and breach of contract. Sun moved for summary judgment on several theories, including that Norfolk Southern was strictly liable for the loss under the Carmack Amendment to the Interstate Commerce Act, 49 USC § 11706. On appeal from the trial court’s grant of summary judgment to Sun on that basis, Norfolk Southern argues that it is not subject to Carmack liability, that Sun should be bound by its agents’ rej ection of Carmack coverage, and that Sun has no viable state law claim remaining. We agree with these contentions and reverse.

The relevant facts are not in dispute. Sun entered into a contract with Compañia Sud Americana de Vapores (CSAV), an ocean carrier, to transport Sun’s ink. Under what is known as a “through bill of lading,” in which cargo owners “can contract for transportation across oceans and to inland destinations in a single transaction,” CSAV took “responsibility for the entire (intermodal) transportation” of the ink from the place of receipt to the place of final delivery, and retained “the right to use the services of other Precarriers and/or Oncarriers and any mode of transport to accomplish the same.” The latter provision also includes a warning about the liability of such intermediate carriers:

Custody and Carriage of the Goods during the intermodal transportation are subject to the tariffs and terms of the relevant bills of lading and/or contract of carriage and/or other transport documents adopted by the Precarrier or Oncarrier and prescribed or made compulsorily applicable by the country in which the intermodal transportation is performed. . . . Particular attention of the Merchant is directed to the terms, conditions or provisions of such documents and laws of the country of transport, as the liability of the Precarrier and/or Oncarrier under such terms, conditions or provisions may be less than the liability of the Carrier in respect of the sea transport.

(Emphasis supplied.) Sun also authorized CSAV to “subcontract on any terms the whole or any part of the handling and [c]arriage of the Goods and any and all duties whatsoever undertaken by [CSAV] in relation to the Goods.” (Emphasis supplied.)

Under the authority thus granted it in the through bill of lading, CSAV subcontracted with Riss Intermodal, Inc., a freight forwarding company, to arrange inland transportation, which in turn hired Norfolk Southern to transport Sun’s ink to Savannah. The inter-modal transportation agreement (ISA) between Riss and Norfolk Southern, which provided that it was “for the sole benefit of [Norfolk Southern] and Riss,” incorporated Norfolk Southern’s rules circular governing such transport, which offered customers a choice between “standard” and “Carmack” liability provisions. The rules circular stated in boldface capitals that “unless language expressly selecting ‘Carmack’ is included in the original shipping instructions, any tender of freight for transportation . . . will be accepted under ‘standard’ liability coverage provided and not under ‘Carmack’ coverage.”

The ISA and the rules circular gave Riss the option to impose Carmack liability on Norfolk Southern if Riss complied with certain additional procedures and paid a higher rate. By contrast, the standard provision stated that Norfolk Southern “will not be liable for any loss, damage, or delay” to any party “other than the Rail Services Buyer.” The record provides no evidence that Riss chose, paid for, or otherwise selected Carmack liability under the ISA or the rules circular.

In September 2001, Norfolk Southern cars carrying Sun’s ink containers derailed while traveling through Washington County, Georgia, destroying the ink. Sun filed a claim with Continental Insurance Company, which paid Sun $60,593.44. Sun and Continental then sued Norfolk Southern for that amount plus interest and litigation costs. After the parties filed cross-motions for summary judgment, the trial court granted Sun’s motion and denied Norfolk Southern’s motion on the ground that Norfolk Southern was strictly liable under Carmack.

1. The primary question before us is whether Sun can be bound by Riss and Norfolk Southern’s bargain, reached without notice to Sun, such that Norfolk Southern could not be held strictly liable under the Carmack Amendment.

We read United States Supreme Court precedent as authorizing parties to international intermodal transport agreements involving any “substantial carriage of goods by sea” to reach their own terms as to liability for damage or loss of cargo. Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U. S. 14, 27 (125 SC 385, 160 LE2d 283) (2004). And the Court’s recent decision in Kawasaki Risen Kaisha Ltd. v. Regal-Beloit Corp., _U. S._ (130 SC 2433, 177 LE2d 424) (2010), appears to have significantly limited Car-mack’s application to such agreements in an import context when it held that Carmack liability did not apply “if the property is received at an overseas location under a through bill [of lading] that covers the transport into an inland location in the United States.” Id. at 2444 (IV) (A). Following Kawasaki Risen, at least one federal district court has held that Carmack liability does not apply to a carrier hired by a freight forwarder under a through bill of lading concerning a freight shipment for maritime export (as is the case here), and the case law on which the trial court in our case based its decision to the contrary has been either abrogated or undermined by Kawasaki Risen. For these reasons, which we explain more fully below, we conclude that the trial court erred when it concluded that Norfolk Southern was strictly liable under the Carmack Amendment for the loss of Sun’s ink.

We begin by considering how the two leading United States Supreme Court decisions on through bills of lading and Carmack liability — Kirby and Kawasaki Risen, supra — apply to the case before us.

(a) In Kirby, an Australian manufacturer hired a freight forwarding company, ICC, to arrange for delivery of its machinery from Sydney, Australia, through the port of Savannah to Huntsville, Alabama. Kirby, 543 U. S. at 18-19 (I). Like CSAV in this case, ICC hired an independent contractor, Hamburg Sud, which in turn hired Norfolk Southern to transport the machinery from Savannah to Huntsville. Hamburg Sud’s bill of lading with ICC limited its liability for the sea leg of the shipment to the default amount set by the Carriage of Goods by Sea Act (“COGSA”), 46 USC § 30701 et seq., of $500 per package. In a so-called “Himalaya clause,” the bill of lading extended that liability limitation to all of Hamburg Sud’s downstream agents and subcontractors, including inland carriers. Id. at 19-21. As in the case before us, the manufacturer sued Norfolk Southern for the value of the freight after it was damaged on the inland rail portion of its journey. Id. at 21. The Supreme Court held that the liability terms negotiated by Hamburg Sud (the independent contractor who hired Norfolk Southern) with ICC (the freight forwarder) were enforceable against the manufacturer because ICC had acted as the manufacturer’s limited agent when making arrangements with downstream carriers, including Norfolk Southern. Id. at 33-34 (III) (B).

As a preliminary matter, and as the United States Supreme Court noted in Kirby, it is to a manufacturer’s advantage to arrange both foreign and domestic components of transport “in one bill of lading, rather than to negotiate a separate contract — and to find an American railroad itself — for the land leg.” 543 U. S. at 26 (II). Likewise, the independent contractor hired by the freight forwarder seeking to save the freight forwarder and its clients money by purchasing cheaper liability protection “would not enjoy the efficiencies of the [COGSA] default rule if the liability limitation it chose did not apply equally to all legs of the journey for which it undertook responsibility,” with the consequence that “the apparent purpose of COGSA, to facilitate efficient contracting in contracts for carriage by sea, would be defeated.” Id. at 29 (II). Kirby serves, therefore, to “reinforce the liability regime Congress established in COGSA” and “protect[ ] the uniformity of federal maritime law[.]” Id.; see also Kossick v. United Fruit Co., 365 U. S. 731, 741 (81 SC 886, 6 LE2d 56) (1961) (even though a maritime contract involving substantial ocean transport “may well have been made anywhere in the world,” it “should be judged by one law wherever it was made”).

The Kirby Court’s rationale for validating the Himalaya clause before it, which extended specific liability limitations to downstream carriers and agents, applies with equal strength to the provisions in the through bill of lading before us, which authorizes downstream carriers to reach their own liability terms:

When an intermediary contracts with a carrier to transport goods, the cargo owner’s recovery against the carrier is limited by the liability limitation to which the intermediary and carrier agreed. The intermediary is certainly not automatically empowered to be the cargo owner’s agent in every sense. That would be unsustainable. But when it comes to liability limitations for negligence resulting in damage, an intermediary can negotiate reliable and enforceable agreements with the carriers it engages.

(Emphasis supplied.) Id. at 33 (III) (B). The Court went on to explain the justifications for this rule of “limited agency”:

First, we believe that a limited agency rule tracks industry practices. In intercontinental ocean shipping, carriers may not know if they are dealing with an intermediary, rather than with a cargo owner. Even if knowingly dealing with an intermediary, they may not know how many other intermediaries came before, or what obligations maybe outstanding among them. If [traditional agency principles] were the law, carriers would have to seek out more information before contracting, so as to assure themselves that their contractual liability limitations provide true protection. That task of information gathering might be very costly or even impossible, given that goods often change hands many times in the course of intermodal transportation. . . .
Second, if liability limitations negotiated with cargo owners were reliable while limitations negotiated with intermediaries were not, carriers would likely want to charge the latter higher rates. Arule prompting downstream carriers to distinguish between cargo owners and intermediary shippers might interfere with statutory and decisional law promoting nondiscrimination in common carriage.

(Citations omitted.) Id. at 34-35 (III) (B). As the Court also noted, it “seems logical” that the hiring intermediary — “the only party that definitely knew about and was party to both of the bills of lading at issue here — should bear responsibility for any gap between the liability limitations in the bills,” while the downstream carrier “enjoys the benefit” of the liability limitation reached by subcontract. Id. at 35 (HI) (B).

Just as it alerted Sun to the extension of liability limitations to downstream agents and subcontractors, the through bill of lading issued by CSAV also brought Sun’s attention to the possible differential between liability coverages for the land and sea portions of the ink’s intermodal transport. Based on Kirby alone, then, Sun should be bound by Riss arid Norfolk Southern’s downstream agreement as to liability terms. See Custom Rubber Corp. v. ATS Specialized, 633 FSupp.2d 495, 512-513 (III) (C) (N.D. Ohio 2009) (owner gave up its right to choose between terms when it gave an intermediary broad authority to make shipping arrangements). However, Kirby does not address one question raised by these facts: that is, whether the Carmack Amendment’s imposition of strict liability on receiving and delivering rail carriers preempts Sun’s expressed intent to allow downstream carriers to make their own liability arrangements. For guidance on this question, we turn to the Carmack Amendment itself as recently construed by the United States Supreme Court in Kawasaki Risen.

(b) As this Court has noted, the Carmack Amendment

codified the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by (a) [an] act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.

(Citation and punctuation omitted.) Transp. Solutions v. St. Paul Mercury Ins. Co., 297 Ga.App. 757, 758 (678 SE2d 201) (2009). First enacted in 1906 as an amendment to the Interstate Commerce Act (ICA) and frequently altered and recodified since then, the Carmack Amendment provides:

(a) A rail carrier providing transportation or service subject to the jurisdiction of the [Surface Transportation Board (STB)] [] . . . shall issue a receipt or bill of lading for property it receives for transportation under this part. . . . That rail carrier and any other carrier that delivers the property and is providing transportation or service subject to the jurisdiction of the [STB] under this part... are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this subsection is for the actual loss or injury to the property caused by (1) the receiving rail carrier; (2) the delivering rail carrier; or (3) another rail carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading.

(Emphasis supplied.) 49 USC § 11706.

The Kawasaki Risen Court framed the question before it as “whether [the] Carmack [Amendment] applies to the inland segment of an overseas import shipment under a through bill of lading.” Kawasaki Risen, 130 SC at 2440 (I). Sun argues that under the plain language of the Carmack Amendment, Norfolk Southern is a “receiving rail carrier” to which Carmack liability must apply, regardless of any arrangements made by Sun’s downstream carriers. As we read the Kawasaki Risen decision, however, the Court also answered the broader question of whether, in a case involving a through bill of lading for land and sea transit of goods, a domestic rail carrier not in privity with the owner of the goods could be subject to Carmack liability despite having made alternate contractual arrangements with the owner’s agent in the negative.

The Kawasaki Risen Court began its discussion by conceding that “[i]n cases where it applies,” the Carmack Amendment imposes liability upon receiving and delivering rail carriers “for damage caused during the rail route under the bill of lading, regardless of which carrier caused the damage.” (Citation omitted.) 130 SC at 2441 (II) (B). As prior precedent had established, this strict liability regime was designed to relieve cargo owners “ ‘of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.’ ” Id., quoting Reider v. Thompson, 339 U. S. 113, 119 (70 SC 499, 94 LE 698) (1950). “To help achieve this goal, Carmack constrains carriers’ ability to limit liability by contract.” Kawasaki Risen, 130 SC at 2441 (II) (B), citing 49 USC § 11706 (c). Having recited the well-established policies animating the Carmack Amendment, the Kawasaki Risen Court turned its attention to the threshold but critical inquiry as to which carriers should be subject to Carmack liability pursuant to 49 USC § 11706:

First, the rail carrier must “provid[e] transportation or service subject to the jurisdiction of the [STB].” Second, that carrier must “receivfe]” the property “for transportation under this part,” where “this part” is the STB’s jurisdiction over domestic rail transport. Carmack thus requires the receiving rail carrier but not the delivering or connecting rail carrier to issue a bill of lading.... [Ascertaining the shipment’s point of origin is critical to deciding whether the shipment includes a receiving rail carrier.

(Emphasis supplied.) Id. at 2443 (II) (A), quoting 49 USC § 11706 (a).

The Court thus read the first sentence of the Amendment as providing that “Carmack’s bill of lading requirement only applies to the receiving rail carrier” — that is, the “initial carrier” receiving the property “for domestic rail transportation at the journey’s point of origin,” and not merely “any rail carrier that in the colloquial sense ‘received’ the property from another carrier.” (Citation omitted.) Kawasaki Kisen, 130 SC at 2443 (IV) (A). The Court explained that only this narrower definition of “receiving rail carrier” comported with the Carmack Amendment’s policy of “making the receiving and delivering carriers liable under a single, initial bill of lading for damage caused by any carrier within a single course of shipment.” Id. Although the Court held that the Carmack Amendment continued to apply “to transport of property for which Carmack requires a receiving carrier to issue a bill of lading, regardless of whether that carrier fails to issue such a bill,” the Court concluded that Carmack “does not apply if the property is received at an overseas location under a through bill that covers the transport into an inland location in the United States.” Id. at 2444 (TV) (A). In the instant case, CSAV, the initial carrier, issued the through bill of lading; Norfolk Southern did not.

Although the Kawasaki Kisen Court explicitly declined to address the fact pattern before us — that is, one in which “goods are received at a point in the United States for export,” 130 SC at 2444 — at least one federal court applying both Kirby and Kawasaki Kisen has characterized freight shipments originating in the United States but reaching overseas destinations as essentially “maritime contracts” to which Carmack does not apply. In Hartford Fire Ins. Co. v. Expeditors Intl. of Washington, _FSupp.3d_ (2012 U. S. Dist. LEXIS 96974, S.D. N.Y. July 9, 2012), an owner of solar panels (Evergreen) contracted with a freight forwarding company (Expeditors) to carry empty containers to Evergreen’s warehouses in Massachusetts and then to ship the containers, now filled with solar panels, to a port in the New York area, from which the containers were to be shipped to their final destination in France. Id. at_. A through bill of lading authorized Expeditors “to sub-contract on any terms the whole or any part of the handling, storage or carriage of the [containers] and any and all duties whatsoever undertaken by the [c]arrier in relation to [them].” Id. at_. Expeditors then hired Intransit to handle the inland portions of this intermodal transport. When the panels were found to be damaged on their arrival in France, Evergreen’s insurer sued Intransit for liability as a receiving carrier under Carmack. Id. at_.

Applying Kawasaki Kisen, the federal court found that Intransit could not be held liable under Carmack. The court noted that as a freight forwarder, Expeditors was “ ‘both the receiving and the delivering carrier’ ” for purposes of the Carmack Amendment, Expeditors, _FSupp.3d at_, quoting 49 USC § 14706 (a) (2), with the result that Intransit was merely “an intermediate carrier” not subject to Carmack liability. More broadly, the trial court noted that the owner sued under a bill of lading issued by Expeditors and was thus bound by its terms, including Expeditors’ power to issue subcontracts on any terms and Evergreen’s indemnification of any claims against Expeditors. See id. at_. Finally, citing both Kirby and Kawasaki Kisen, the court held that “[w]here a bill of lading ‘requires substantial carriage of goods by sea, its purpose is to effectuate maritime commerce [,] and thus ... is a maritime contract’ ” to which Carmack does not apply. Id. at_, quoting Kirby, 543 U. S. at 27 (II).

Although the United States Supreme Court’s decision in Kawasaki Kisen appeared months before the Georgia trial court’s decision in the case before us, the Georgia trial court did not have the benefit of the Southern District of New York’s Expeditors decision at the time it ruled. Instead, the trial court based its imposition of Carmack liability on two earlier Southern District of New York decisions: Sompo Japan Ins. Co. v. Norfolk Southern R. Co., 540 FSupp.2d 486 (S.D. N.Y. 2008), a decision abrogated by Kawasaki Kisen, and American Home Assurance Co. v. Panalpina, 2011 U. S. Dist. LEXIS 16677 (S.D. N.Y. 2011), which relied on Sompo.

Sompo addressed whether a shipper could recover from a rail carrier under Carmack for damage sustained on the concluding inland leg of a freight shipment from Asia to Georgia. 553 FSupp.2d 348, 349 (S.D. N.Y. 2008). On motion for reconsideration, the district court affirmed its earlier holding that as the delivering rail carrier, Norfolk Southern was liable under Carmack. Id. at 350-351. The Second Circuit vacated and remanded for further proceedings in light of Kawasaki Risen. Nipponkoa Ins. Co. v. Norfolk Southern R. Co., 394 Fed. Appx. 751-752 (2d Cir. 2010). On remand, the district court concluded that in light of Kawasaki Risen, Carmack “does not apply to a shipment originating overseas under a single through bill of lading.” Sompo, 2012 U. S. Dist. LEXIS 125398 at *10.

The Panalpina decision applied Carmack liability to a motor carrier hired by a freight forwarder to transport containers from Illinois to California en route to Australia. Panalpina, supra at **4, 5. In a holding that seems contrary to both the rationales and the policy concerns of Kirby and Kawasaki Risen, the Panalpina court concluded that because the rail carrier “received the property for transportation” subject to federal regulation, it was liable under the Carmack Amendment. Id. at *14; compare Kawasaki Risen, 130 SC at 2447 (applying the Carmack Amendment to international shipping transport “would... undermine the ‘purpose of COGSA, to facilitate efficient contracting in contracts for carriage by sea,’ ” quoting Kirby, supra at 29 (II)).

(c) We think that the Southern District of New York’s more recent decision in Expeditors implements Kirby’s and Kawasaki Kisen’s objectives of promoting efficient maritime contracting more effectively than the earlier Panalpina decision, and that federal law requires us to uphold the bargained-for terms of the through bill of lading before us, including its binding of Sun to its downstream agent Riss’s refusal of the Carmack liability offered by Norfolk Southern.

It is undisputed that Sun, the owner and shipper of the ink at issue here, hired CSAV, an ocean carrier, to transport that ink by sea from Sun’s Kentucky facility to Brazil. Sun was then issued a through bill of lading by CSAV, which then made arrangements to transport the ink from Kentucky to the port of Savannah, where it would begin the greater part of its journey to Brazil. Sun gave explicit permission in the through bill of lading issued to it that CSAV could “subcontract on any terms the whole or any part of the handling and carriage” of the ink; that CSAV had “the right to use the services” of other subcontractors “and any mode of transport to accomplish the same”; and that the terms set further down the stream of commerce could render the subcontractor’s liability “less than the liability of [CSAV]” concerning the sea leg of the transport. Like the Kirby Court, then, but contrary to the trial court in this case, we construe the bill of lading issued by the ocean carrier which is before us, including its land components, as a “maritime contract” governed by federal law. S eeKirby, 543 U. S. at 24 (II) (Kirby bills of lading were “maritime contracts because their primary objective is to accomplish the transportation of goods by sea from Australia to the eastern coast of the United States”); Expeditors, _FSupp.3d at_(Carmack does not apply to “what are essentially maritime contracts”).

We also believe that as the issuer of the bill of lading after negotiations with Sun, CSAV, and not Norfolk Southern, is the “receiving carrier” to whom Carmack liability could apply but does not, for the reasons we have outlined above. See Kawasaki Kisen, 130 SC at 2443 (IV) (A) (Carmack requires the “receiving rail carrier — but not the delivering or connecting rail carrier — to issue a bill of lading”). As in Expeditors, moreover, Norfolk Southern and Riss reached their own agreement as to the inland leg of what was supposed to be an extensive maritime transport from Kentucky to Brazil via Savannah. Finally, having been granted the authority by Sun to reach its own terms with subcontractors, Riss declined Norfolk Southern’s offer of a right to assert a Carmack claim against it, choosing a less expensive liability regime instead. See Expeditors,_ FSupp.3d at_(noting carrier’s power to subcontract “on any terms” with other carriers) and_(noting that the freight owner had sued under a bill of lading issued by the freight forwarder Expeditors and “thus[ ] is bound by its terms”); 49 USC § 10709 (a), (b) (a rail carrier who “enter[s] into a contract with one or more purchasers of rail services to provide specified services under specified rates and conditions . . . shall have no duty in connection with services provided under such contract other than those duties specified by the terms of the contract”).

We therefore conclude that Norfolk Southern, which was brought into an international ocean shipping arrangement two transactions after CSAV had issued its bill of lading, cannot be subject to Carmack liability because (1) the bill of lading issued by CSAV is a “maritime contract” to which Carmack liability should not apply; (2) Norfolk Southern was not the “receiving carrier” of the ink containers for purposes of Carmack liability; and (3) Sun authorized downstream carriers to reach their own terms as to liability, which Riss did when it declined Norfolk Southern’s offer of Carmack liability. The trial court erred when it reached a contrary conclusion.

2. As this Court has noted, the Carmack Amendment “controls the liability of a carrier for damage to or loss of an interstate shipment of goods, send generally preempts separate state-law causes of action by a shipper against a carrier for the lost or damaged goods.” (Citations omitted; emphasis supplied.) Transp. Solutions, 297 Ga.App. at 758. Pretermitting whether the Amendment and other federal law preempts Sun’s state law claims, however, we conclude that they lack merit.

(a) Norfolk Southern argues that Sun should be bound by its subcontractors’ agreement that Norfolk Southern would not be liable for any loss to anyone other than Riss. Given our conclusion in Division 1 that the Carmack Amendment does not trump Sun’s explicit authorization that its downstream subcontractors could reach their own liability terms, the bill of lading’s covenant that Sun could sue only the ocean carrier (CSAV) and/or the immediate buyer of Norfolk Southern’s rail services (Riss) is enforceable against Sun. See St. Paul Travelers Ins. Co. v. M/V Madame Butterfly, 700 FSupp.2d 496, 505 (III) (A) (S.D. N.Y. 2010) (because a bill of lading contained a “broad clause prohibiting suits against persons other than the carrier,” an owner was “precluded from suing” the carrier’s subcontractors) (footnote omitted).

(b) Sun’s bailment claim against Norfolk Southern fails as well. In order to state a claim for negligence or breach of bailment, Sun must show that it was owed a duty by Norfolk Southern and that the-latter breached that duty. AAA Parking v. Bigger, 113 Ga. App. 578, 583 (2) (149 SE2d 255) (1966). But Norfolk Southern’s duty with respect to the ink shipment is set out in its contract with Riss, as to which Sun is neither a party nor, as the contract itself specified, a third-party beneficiary. See OCGA § 44-12-40 (a bailment is “a delivery of goods or property upon a contract, express or implied”); Owners Ins. Co. v. Smith Mechanical Contractors, 285 Ga. 807, 809 (2) (683 SE2d 599) (2009) (citing OCGA § 44-12-40).

For all these reasons, the trial court erred when it granted Sun and Continental summary judgment on its claim under the Carmack Amendment against Norfolk Southern. We therefore reverse that judgment and remand the case with direction that judgment be entered in favor of Norfolk Southern.

Decided November 29, 2012

Inglesby, Falligant, Horne, Courington & Chisholm, Glen M. Darbyshire, for appellant.

Bouhan, Williams&Levy, EdwinD. Robb, Jr., ToddM. Baiad, for appellees.

Judgment reversed and case remanded with direction.

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

        Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd,., 543 U. S. 14, 26 (125 SC 385, 160 LE2d 283) (2004).

       The through bill of lading defines these terms as including “any carrier by land, water or air, which participates in the intermodal transportation of Goods moving under this Bill of Lading from the Place of Receipt to the Port of Loading in the case of the Precarrier and from the Port of Discharge to the Place of Final Delivery in the case of the Oncarrier.” As Norfolk Southern points out, then, it is the “Precarrier” for purposes of this bill of lading.

       It does not appear from the parties’ stipulated facts that Norfolk Southern issued its own hill of lading.

       As we explain in greater detail herein, “Carmack coverage” is strict liability imposed by the Carmack Amendment on the “receiving rail carrier” and “delivering rail carrier” for loss or damage of the freight at issue. See 49 USC § 11706 (a) (imposing liability “for the actual loss or injury to the property caused by (1) the receiving rail carrier; (2) the delivering rail carrier; or (3) another rail carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading.”).

       CSAV and Sun likewise agreed in the through hill of lading before us that COGSA “shall govern the Goods before they are loaded on and after they are discharged from the Vessel and throughout the entire time that they are in the custody of the Carrier at a United States port.”

       “Clauses extending liability limitations take their name from an English case involving a steamship called Himalaya.” (Citation omitted.) Kirby, 543 U. S. at 20 (I), n. 2. The through bill of lading before us also contains a clause to the effect that “[e]very employee, agent, sub-contractor and independent contractor of [CSAV]... used and employed by [CSAV] in the performance of this work... in relation to the Goods referred to herein... shall be a beneficiary of this Bill of Lading and shall be entitled to all. . . limitations of liability which [CSAV] has under the provisions of this Bill of Lading]’ (Emphasis supplied.)

       As the successor to the Interstate Commerce Commission, the STB has exclusive jurisdiction to regulate rail transportation within the United States. Kawasaki Risen Kaisha, 130 SC at 2441 (II) (B).

       Although we would normally turn to the Eleventh Circuit for guidance on questions of federal law, none of the opinions from that circuit citing Kawasaki Kisen mention the Carmack Amendment. See Lindo v. NCL (Bahamas), Ltd., 652 F3d 1257 (11th Cir. 2011); UTI, United States, Inc. v. Bernuth Agencies, Inc., 2012 U. S. Dist. LEXIS 141520 (S.D. Fla. 2012); Underwriters &c. v. Seatruck, Inc., 858 FSupp.2d 1334 (S.D. Fla. 2012).

       Although Expeditors concerned a motor carrier rather than a rail carrier, it is well settled that the Carmack Amendment applies to both kinds of transport. See Expeditors at _, citing Royal & Sun Alliance Ins. v. Ocean World Lines, 612 F3d 138, 145 (2d Cir. 2010).

       In making this determination, we are mindful that federal cases “do not draw clean lines between maritime and non-maritime contracts” and that “the boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” (Citation and punctuation omitted.) Kirby, 543 U. S. at 23 (II). “[T]he answer depends upon the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.” (Citation and punctuation omitted; emphasis supplied.) Id. at 24 (II).

       Federal law provides at least two options for contracting around the strict liability provisions of 49 USC § 11706. Although 49 USC § 10502 (e), known as the Staggers Act, provides that the STB may not “relieve any rail carrier from an obligation to provide contractual terms for liability and claims which are consistent with the provisions of [Carmack],” the same subsection provides that “[n]othing in this subsection or [Carmack] shall prevent rail carriers from offering alternative terms nor give the Board the authority to require any specific level of rates or services based on the provisions of [Carmack].” (Emphasis supplied.) Likewise, 49 USC § 10709 (a) specifies that “[o]ne or more rail carriers providing transportation subject to the jurisdiction of the Board... may enter into a contract with one or more purchasers of rail services to provide specified services under specified rates and conditions.” Having signed such a contract, a rail carrier “shall have no duty in connection with services provided under such contract other than those duties specified by the terms of the contract.” 49 USC § 10709 (b).


text:
    A12A1265.
    BEALE v. O’SHEA.
    (735 SE2d 29)
   Branch, Judge.

Between 2000 and 2010, Scott A. Beale and Roderick O’Shea were business partners, with each man owning 50 percent of Flight-Works, Inc. This dispute arises out of the ultimately successful efforts of O’Shea to purchase Beale’s ownership interest in the company. As a result of that transaction and the events leading up to it, Beale asserted claims against O’Shea for fraud, breach of contract, and breach of fiduciary duty. The parties filed cross-motions for summary judgment, with O’Shea seeking summary judgment on all claims asserted against him by Beale and Beale seeking summary judgment on his claims resulting from O’Shea’s failure to honor a stock purchase agreement between the men. The trial court granted Beale’s motion for partial summary judgment and awarded him $384,822 plus prejudgment interest of $36,088.92 on his claim that O’Shea had breached the parties’ stock purchase agreement. However, the court granted O’Shea’s motion for summary judgment on all other claims asserted against him by Beale. Beale now appeals, arguing that the trial court erred in granting O’Shea summary judgment on Beale’s claims arising out of: (1) O’Shea’s execution of what the parties refer to as the “Change in Control Protection Agreements”; and (2) O’Shea’s alleged withholding of the distribution of FlightWorks profits, in violation of the parties’ shareholder agreement. As is explained below, we find that the record contains sufficient evidence to create a jury question as to whether Beale suffered any damages as a result of O’Shea’s execution of the Change in Control Protection Agreements. Accordingly, we reverse the trial court’s order granting O’Shea summary judgment on Beale’s claim for breach of fiduciary duty relating to the Change in Control Protection Agreements. We also find that the record shows the shareholder tax distributions allegedly withheld from Beale were in fact made and were credited against outstanding balances on loans FlightWorks had previously made to Beale. We therefore affirm the order of the court below granting O’Shea summary judgment on Beale’s claims for breach of contract and breach of fiduciary duty relating to tax distributions required under the shareholder agreement.

Denial of summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). To prevail on a motion for summary judgment, therefore,

the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial... the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). “We review the denial of a motion for summary judgment de novo, viewing the evidence in the record, as well as any inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party.” (Citation omitted.) Vann v. Finley, 313 Ga. App. 153, 155 (721 SE2d 156) (2011).

Viewed in the light most favorable to Beale, as the nonmovant, the record shows that the FlightWorks Amended and Restated Shareholders Agreement (the “Shareholders Agreement”), which was signed by both Beale and O’Shea and became effective January 1, 2005, called for a five-person Board of Directors. It granted O’Shea the authority to elect three directors and Beale the authority to elect two. Until sometime in 2009, however, O’Shea and Beale, who was also employed by FlightWorks, served as the company’s sole directors. In 2009, O’Shea discovered that Beale had unilaterally authorized FlightWorks to guarantee $8.25 million in loans from Huntington National Bank (“HNB”) to Beale, his wife, and/or entities they owned. After making that discovery, O’Shea fired Beale as a FlightWorks employee and exercised his right to elect two additional members to the FlightWorks Board of Directors. O’Shea elected Daniel T. Lucey, FlightWorks President, and William Lewis, FlightWorks CFO. Following the election of Lucey and Lewis in June 2009, Beale was removed from the board.

Feeling that Beale’s conduct had left the company’s future in question, Lucey and Lewis had their lawyer prepare for each of them a document entitled “Change in Control Protection Agreement.” Those agreements provided that if the control of FlightWorks changed such that O’Shea no longer owned at least 50 percent of the company, then at the closing of the sale of stock resulting in the change in control of FlightWorks, Lucey and Lewis would be entitled to severance pay.

In August 2009, Beale entered into a forbearance agreement with HNB under which the bank agreed to forbear on the past due loans made to Beale and guaranteed by FlightWorks in exchange for Beale pledging his FlightWorks shares to HNB as collateral. This agreement required Beale to get prior approval from HNB before selling, transferring, or encumbering his FlightWorks stock.

The Shareholders Agreement contains a compulsory sale provision, pursuant to which each shareholder had the right to solicit and present bona fide third-party offers to purchase all the shares of FlightWorks. Under that provision, if one shareholder receives a bona fide third-party offer, the other shareholder is required either to match that offer and purchase the shares of the selling shareholder or he must join in the sale and sell his shares to the third party at the price agreed to by the selling partner.

In November 2009, FlightWorks Holdings, LLC (“Holdings”), an entity formed by Beale and Sean Boyd for the express purpose of acquiring FlightWorks, submitted an offer to Beale for the purchase of his stock (the “First Right Offer”) that would have netted Beale approximately $3.8 million. Beale accepted the offer and notified O’Shea of this fact. Thus, pursuant to the Shareholders Agreement, O’Shea had 60 days either to agree to sell his shares at the price offered by Holdings or to purchase Beale’s shares at the same price.

Believing that the offer from Holdings was not a bona fide third-party offer, O’Shea initiated this litigation in January 2010 seeking a declaratory judgment as to whether the offer was a valid offer, obligating him either to purchase Beale’s FlightWorks shares or to sell his own shares. O’Shea also sought and received an order requiring the parties to maintain the status quo until either the resolution of the lawsuit or Holdings’ withdrawal of its offer.

On May 11, 2010, Beale and Holdings rescinded and withdrew the First Right Offer and simultaneously submitted an Amended First Right Offer. That offer set the purchase price of all FlightWorks’ shares by Holdings at “$13,500,000... minus the balance due O’Shea for shareholder loans by him to [the] Company with the remainder divided by the number of shares of the Company then authorized, issued, and outstanding.” Also on May 11, the FlightWorks Board of Directors voted to approve a $1.5 million shareholder loan from O’Shea to the company. O’Shea accepted the Amended First Right Offer six days later, on May 17, and agreed to buy Beale’s FlightWorks shares at the price set forth therein. Beale, however, refused to close the transaction after O’Shea tendered what Beale believed to be less than the agreed upon purchase price.

After receiving and accepting Beale’s Amended First Right Offer, O’Shea contacted HNB to request confirmation that, upon tender of the purchase price, HNB would release Beale’s shares and would also release FlightWorks from any and all obligations on Beale’s outstanding loans. In June 2010, after Beale refused to close on the sale of his FlightWorks shares, O’Shea negotiated the purchase of those shares directly from HNB for $3.5 million. As part of that transaction, O’Shea also secured a full release of FlightWorks from its guaranties on Beale’s loans. Once he purchased Beale’s shares from HNB, O’Shea dismissed his claims against Beale as moot. Beale then filed his amended and restated counterclaims, in which he asserted claims against O’Shea for: (1) fraud, breach of contract, and breach of fiduciary duty, based upon O’Shea’s failure to honor the Amended First Right Offer (Counts 1, 2, and 3); (2) breach of contract and breach of fiduciary duty based upon O’Shea’s alleged withholding of distributions due Beale under the Shareholders Agreement (Counts 4 and 5); (3) breach of fiduciary duty based on the depression of the sale price of Beale’s shares resulting from the Change in Control Agreements (Count 6); (4) breach of fiduciary duty based on O’Shea’s purchase of Beale’s shares directly from HNB (Count 7); and (5) breach of fiduciary duty based on O’Shea’s use of FlightWorks funds to pay his attorney fees and the fees of the special master (Count 8).

The trial court granted summary judgment to Beale on his claim for breach of contract resulting from O’Shea’s failure to honor the Amended First Right Offer (Count 2). In that same order, the court also granted summary judgment to O’Shea on all of Beale’s remaining claims except Count 6, the claim for breach of fiduciary duty based on O’Shea’s execution of the Change in Control Protection Agreements. O’Shea then moved for reconsideration of the denial of summary judgment as to Count 6, arguing that Beale had failed to produce any evidence to establish that he was damaged by the existence of the Change in Control Protection Agreements. Following a nonevidentiary hearing, the trial court granted O’Shea summary judgment on Count 6.

Beale now appeals from the orders of the trial court granting summary judgment to O’Shea on Count 6, as well as on Beale’s claims that O’Shea failed to distribute shareholder profits, in violation of the Shareholder Agreement (Counts 4 and 5).

1. Beale’s claim for breach of fiduciary duty resulting from the Change in Control Protection Agreements is based on his contention that the purpose of those agreements was to make it harder for him to sell his FlightWorks shares to anyone other than O’Shea by reducing the price Beale could receive from third parties. Specifically, Beale argues that these agreements, which required a total payout of $800,000 to Lucey and Lewis at closing if FlightWorks was sold to anyone other than O’Shea, reduced the value of his Flight-Works shares by at least $400,000. The trial court granted summary judgment to O’Shea on this claim based on its finding that Beale “failed to establish actual evidence that he suffered damage” as a result of those agreements. On appeal, Beale contends that he presented sufficient admissible evidence to create a jury issue on the question of whether he suffered any such damage. We agree.

To avoid summary judgment, a party is “not required to present evidence of a specific dollar amount of damages.” Pollman v. Swan, 289 Ga. 767, 768-769 (2) (716 SE2d 191) (2011). Rather, he must only “present evidence sufficient to serve as the basis for a factfinder to calculate the amount of damages due . . . should liability ... be established.” Id. And in cases such as this one, where the damages relate to the value of real or personal property, the question of value is normally regarded as “peculiarly for the determination of the jury.” (Citation omitted.) Varnedoe v. Singleton, 154 Ga. App. 332 (268 SE2d 387) (1980). Thus, a claim for damages related to value will be submitted to the jury “where there is any data in the evidence upon which the jury may legitimately exercise their own knowledge and ideas. After a witness has given his basis for opinion evidence as to value, it is up to the jury to determine its weight.” (Citations omitted.) Id.

Georgia law provides that with respect to damages calculated on the value, of property, “testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.” OCGA § 24-9-66. The opportunity for forming an opinion as to value may be established by showing the witness’s experience and familiarity with the item being valued. See Williams v. State, 246 Ga. App. 347, 352 (2) (540 SE2d 305) (2000) (“An owner does not have to be an expert to testify as to the value of his property (or that property under his control), provided he has experience or familiarity with such values.”) (citing OCGA § 24-9-66); Varnedoe, 154 Ga. App. at 332 (“[F]or a witness to give his opinion as to value, he must give his reasons for forming that opinion by showing that he had some knowledge, experience, or familiarity as to the value of the item.”) (citations omitted). And our case law establishes that a shareholder in a closely-held corporation may testify as to his opinion of the company’s worth. Rental Equip. Group v. MACI, 263 Ga. App. 155, 159 (1) (d) (587 SE2d 364) (2003); Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 287-288 (3) (431 SE2d 115) (1993). Applying these principles to the case at hand, we find that Beale presented sufficient evidence to create a jury question as to whether the Change in Control Protection Agreements caused him any damage.

In support of his motion for summary judgment on this claim, O’Shea relied on the deposition testimony of Clay Westbrook, a principal in Konsortium Capital Partners, the firm that worked to find financing for Holdings’ proposed buyout of FlightWorks. He was also the representative of Holdings that executed both the First Right Offer and the amended offer. When asked at his deposition what factors determined the proposed purchase price, Westbrook responded that the price “was determined by the amount of the financing that we were able to procure and the amount of the equity investment that we anticipated we would need.” O’Shea argues that this testimony shows unequivocally that the existence of the Change in Control Protection Agreements did not factor into, much less reduce, the offer made by Holdings. This argument, however, ignores other evidence of record, including other testimony offered by Westbrook.

Notably, Westbrook was never asked about the Change in Control Protection Agreements and he never stated that those agreements played no role in calculating the proposed purchase price. Westbrook also testified that he did not determine the purchase price offered by Holdings, but that instead, Beale and Sean Boyd told him what price Holdings would offer. Westbrook further stated that to determine purchase price one would need to examine the company’s financial statements, balance sheets, and other information as to the companies’ assets and liabilities. And, as Beale points out, the need for any buyer other than O’Shea to pay out $800,000 at closing could certainly be considered a liability that would play a role in determining what kind of offer should be made.

Additionally, Sean Boyd submitted an affidavit in which he stated that he was “involved in the calculations with respect to the purchase price offered and the financing” that could be obtained for both offers made by Holdings, and that he was aware of the Change in Control Protection Agreements. Boyd further averred that the Change in Control Protection Agreements were “dilutive in the sense that they were designed to make FlightWorks a less attractive acquisition target and/or required an acquirer to pay a premium for the company. Any purchaser who or which acquired FlightWorks, would have immediately had a liability to pay out approximately $800,000 to Mr. Lewis and Mr. Lucey.” Thus, Boyd concluded:

[A]ny reasonable purchaser would have offered to purchase FlightWorks for $800,000 less than it would have in the absence of the “Change in Control Protection Agreements.”
In my opinion, as a prospective purchaser, the “Change in Control Protection Agreements” devalued FlightWorks by no less than $800,000 and Mr. Beale’s stock by no less than $400,000.

Furthermore, through his verified pleadings and interrogatory responses, Beale offered his opinion testimony, as an owner of Flight-Works and as one who sat on the FlightWorks Board for a number of years, that the Change in Control Protection Agreements devalued his shares in the company by at least $400,000. Taken together, this evidence was sufficient to create a factual issue for the jury as to whether Beale suffered damage as a result of the Change in Control Protection Agreements. See Dyer v. Honea, 252 Ga. App. 735, 744 (6) (557 SE2d 20) (2001) (seller of restaurant not entitled to summary judgment based on buyer’s alleged inability to prove damages, where buyer “testified that he would not have purchased the restaurant had [seller] informed him of the outstanding liens and that as a result of the purchase, he was forced to borrow funds to keep the restaurant open”); Williams, 246 Ga. App. at 352-353 (2) (even “weak” evidence of property’s value is sufficient to allow the issue of value to go to the jury); Southern Cellular Telecom, 208 Ga. App. at 288 (3). Accordingly, summary judgment on this claim is not appropriate.

2. The Shareholder Agreement required FlightWorks to make annual shareholder distributions in an amount equal to or greater than the estimated tax liability for each shareholder, with such distributions to be made no later than March 15 of each taxable year. In his counterclaim, Beale asserts that O’Shea breached this provision “by using [O’Shea’s] illegal control of the board to withhold distributions to Beale,” and that the facts underlying this breach of contract claim also constituted a breach of O’Shea’s fiduciary duty to Beale. We find no evidence in the record, however, and Beale’s brief cites to none, that supports this assertion. The only evidence regarding shareholder distributions came from William Lewis, Flight-Works’ CFO. Specifically, Lewis averred that during the 2009 fiscal year, “the estimated tax liability for each shareholder . . . was $433,927.00.” During that same fiscal year, according to Lewis, shareholder distributions of $501,610.45 were authorized and made to Beale. Beale received $18,467 in distributions during the first six months of 2009, followed by a lump sum payment of the remaining amount on July 20, 2009. Rather than making the July 20 distribution directly to Beale, however, FlightWorks offset the entire amount against Beale’s outstanding loan obligations to the company.*

We find that this evidence supports the trial court’s grant of summary judgment to O’Shea on Counts 4 and 5 of Beale’s counterclaim. Although Beale contends the July 2009 distribution did not satisfy the shareholder agreement because it was not paid directly to him, he cites no legal authority to support this argument. Moreover, we agree with the trial court’s conclusion that, even if this conduct constituted a breach of contract or breach of fiduciary duty, Beale cannot show that he suffered any damages as a result. As the court below noted, the crediting of the distribution against Beale’s outstanding liabilities to FlightWorks benefitted, rather than harmed, Beale.

For the reasons set forth above we reverse the trial court’s order of October 12, 2011, granting summary judgment to O’Shea on Beale’s claim for breach of fiduciary duty resulting from the Change

Decided November 29, 2012.

Graham & Penman, Jason W. Graham, for appellant.

Fellows LaBriola, Stephen T. LaBriola, Eugenia W. Iredale, Christina M. Baugh, for appellee.

in Control Protection Agreements. We affirm, however, the trial court’s order of September 16, 2011, granting summary judgment to O’Shea on Counts 4 and 5 of Beale’s counterclaim.

Judgment affirmed in part and reversed in part.

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

       As explained more fully below, this lawsuit was initiated by O’Shea, and Beale’s claims were asserted as counterclaims. After O’Shea obtained Beale’s shares in FlightWorks, however, he dismissed his claims against Beale, and the parties were re-aligned with Beale as the plaintiff.

       The Change in Control Agreements set forth a formula for calculating this severance pay. Throughout this litigation, Beale has contended that this amount would be $400,000 each for both Lucey and Lewis, or $800,000 total. O’Shea does not appear to dispute this calculation.

       Boyd was a principal in Konsortium Capital Partners, a corporate finance firm that worked to find financing for FlightWorks Holdings’ proposed buyout of FlightWorks.

       It appears that, despite the requirement in the forbearance agreement that he do so, Beale did not obtain the prior approval of HNB before accepting this offer.

       The record relating to that part of the case which occurred prior to O’Shea’s dismissal of his claims is not part of the record on appeal. In his brief, O’Shea takes issue with Beale’s failure to designate at least some portions of the earlier pleadings for inclusion in the appellate record. Despite O’Shea’s arguments to the contrary, however, we find that the pleadings, orders, transcripts, and other evidence supplied in the twelve volumes of appellate record contain everything necessary to allow us to review and rule on Beale’s two claims of error.

       The dispute over purchase price arose from the question of whether the $1.5 million loan that O’Shea made to FlightWorks on May 11 could be used to offset the amount due Beale under the Amended First Right Offer. O’Shea took the position that it had to be included in the sale price, which resulted in that price being $750,000 less than Beale contended it should be.

       This amount was $365,178 more than O’Shea had tendered to Beale for the purchase of those shares and $384,822 less than Beale contended he was owed under the Amended First Right Offer.

       The court subsequently dismissed Beale’s claims for fraud (Count 1) and breach of fiduciary duty (Count 3) resulting from this same conduct, finding that these claims represented alternative theories of recovery.

       According to O’Shea, the purpose of these agreements was to provide incentive for Lucey and Lewis to remain with FlightWorks and thereby provide the company with stability. Both Lucey and Lewis testified that, without the Change in Control Protection Agreements, they would not have remained with the company.

       In Ms counterclaim, Beale sets forth O’Shea’s election of Lucey and Lewis to, and his removal of Beale from, the Board and thereafter refers to O’Shea’s “de facto control of the illegally constituted Board.” Beale never alleges that O’Shea illegally controlled the Board or withheld distributions from him prior to July 2009. Thus, given that Beale’s claims refer to O’Shea’s “illegal control” of the FlightWorks Board, they necessarily must reference O’Shea’s conduct only after he elected Lucey and Lewis to the Board and then removed Beale therefrom, all of which occurred in 2009.

       The record shows that these loans were memorialized by notes that were payable on demand.

       In granting summary judgment on these claims, the trial court also relied on Lewis’s testimony that for the period beginning with fiscal year 2005 and ending July 2,2010, the total taxable income for each shareholder was $1,390,207, and that Beale received distributions totaling $1,798,108 during that same time frame, excluding the July 2010 distribution that was credited against his outstanding loan balances owed FlightWorks. On appeal, Beale contends that this evidence was insufficient to show compliance with the shareholder agreement, because by aggregating distributions for the period between 2005 and 2009 (when the shareholder agreement was in effect), and then dividing those distributions by five, the testimony did not establish that Beale received the appropriate annual distributions required by the agreement. Given that Beale’s counterclaim is expressly limited to wrongful withholding only after O’Shea obtained “illegal” control of the Board — i.e., after July 2009 — we need not consider distributions made prior to July 2009. See Duncan v. Klein, 313 Ga. App. 15,21 (3) (720 SE2d 341) (2011) (“On an appeal from the award of summary judgment, however, we are not confined to the reason given by the trial court for its decision, and we can affirm the decision below if it is right for any reason.”) (citation omitted).