text:
    A11A2106.
    ANDERSON et al. v. DANIEL et al.
    (724 SE2d 401)
   Andrews, Judge.

A group of shareholders in a failed bank corporation sued former directors of the bank alleging that they were injured by the directors’ negligent misrepresentations about the bank’s financial condition which induced them to hold shares of stock which became worthless when the bank failed. The shareholders appeal from the trial court’s order granting the directors’ motion to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim. We affirm because the allegations of the complaint failed to state a so-called “holder claim” as recognized and limited in Holmes v. Grubman, 286 Ga. 636 (691 SE2d 196) (2010).

Under OCGA § 9-11-12 (b) (6),

[a] motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525 (668 SE2d 723) (2008). Applying these standards, we find no merit to the shareholders’ claims that the trial court erred by dismissing the complaint.

The complaint alleged that the bank was chartered in 2006 and regulated by the Georgia Department of Banking and Finance (DBF) and the Federal Deposit Insurance Corporation (FDIC); that in 2006 the shareholders purchased shares of resalable bank stock for $10 per share; that from June 2007 through July 2008 the DBF and the FDIC gave warnings and other information to the bank regarding its adverse financial condition; that the directors negligently failed to timely disclose this information to the shareholders and misrepresented the bank’s financial condition as sound; that the DBF and the FDIC required the bank to make efforts to raise additional capital, and, as a result of bank efforts in August 2008 to sell additional shares of stock, the bank’s adverse financial condition for the first time became known to all the bank’s shareholders and entered the public domain; that as a result of the adverse financial information entering the public domain the stock offering failed; and that the bank failed and was taken over by the FDIC in October 2008 at which time the bank’s stock became worthless. In support of the negligent misrepresentation claim, the shareholders’ complaint alleged that in four communications from the directors to them the directors either misrepresented that the bank was financially sound or failed to disclose that the bank’s true financial condition was not sound. The four communications were: (1) the May 9, 2008 proxy statement sent to all the bank’s shareholders for the annual meeting of shareholders; (2) the bank’s May 23, 2008 audited financial statement sent to all the bank’s shareholders along with a cover letter to all the bank’s shareholders from James A. Blackwell as the chairman of the bank’s board of directors; (3) the bank’s May 27, 2008 annual shareholders’ meeting; and (4) chairman Blackwell’s June 2, 2008 letter to all the bank’s shareholders summarizing the bank’s annual shareholders’ meeting. According to the complaint, because of the directors’ alleged negligent misrepresentations, including failures to disclose, the shareholders suffered damage when they justifiably relied on the misrepresentations and continued to hold the stock that lost all of its value when the bank failed.

In Holmes, supra, the Supreme Court recognized a cause of action by shareholders of publicly traded corporate stock who claim damages as a result of being induced by fraudulent or negligent misrepresentations to hold stock rather than sell it — a so-called “holder claim” — but placed “direct communication” and “specific reliance” limitations on the cause of action. Holmes, 286 Ga. at 637-641. As to the “direct communication” limitation, Holmes held the “context to be one in which the parties knew each other and the alleged misrepresentations occurred through direct communication.” Id. at 639 (quoting Gutman v. Howard Savings Bank, 748 FSupp. 254, 265 (D. N.J. 1990)). The Gutman opinion recognized “direct communications” as referring to “representations directly to plaintiffs” by the defendants made in person or by telephone. Id. at 258-259, 261, 266. In support of the “direct communication” limitation, Holmes also cites to Newby v. Enron Corp. (In re Enron Corp. Securities, Derivative & “ERISA” Litigation), 490 FSupp.2d 784, 819 (S.D. Tex. 2007) and Goldin v. Salomon Smith Barney, Inc., 994 S2d 517, 520 (Fla. App. 2008). Holmes, 286 Ga. at 640. In Newby, the court recognized that the “critical feature” of the direct communication requirement was “personal contact” between the plaintiff and the defendant such as “direct, face-to-face or telephone misrepresentations,” and held that the “holder claim” plaintiffs failed to adequately plead their claims because they “failed to allege any facts demonstrating any direct, personal communication” with the defendants. Newby, 490 FSupp.2d at 819-820. Similarly, in Goldin the court recognized the requirement that the “misrepresentation was directly communicated from the defendant to the plaintiff.” Goldin, 994 S2d at 520. Goldin held that the plaintiffs failed to plead a “holder claim” because allegations that they relied on misrepresentations in publicly disseminated stock forecasts did not satisfy “the direct communication requirement [which] is a logically necessary sub-element of justifiable reliance. ...” Id.

As to the “specific reliance” limitation, Holmes held:

We further agree with those courts which require specific reliance on the defendants’ representations: for example, that if the plaintiff had read a truthful account of the corporation’s financial status the plaintiff would have sold the stock, how many shares the plaintiff would have sold, and when the sale would have taken place. The plaintiff must allege actions, as distinguished from unspoken and unrecorded thoughts and decisions, that would indicate that the plaintiff actually relied on the misrepresentations. Such distinction reinforces the reliance requirement by separating plaintiffs who actually and justifiably relied upon the misrepresentations from the general investing public, who, though they did not so rely, suffered the loss due to the decline in share value. This distinction also separates common law fraud claims, which must prove actual reliance, from federal securities fraud claims, which may rely upon the fraud-on-the-market theory.

(Citations and punctuation omitted.) Holmes, 286 Ga. at 640.

The complaint in this case is an individual or direct action by a group of bank shareholders which attempts to plead a “holder claim” for damages incurred as a result of being induced by negligent misrepresentations to hold their bank stock rather than sell it before it became worthless. An essential element of this claim is that the shareholders justifiably relied on the alleged negligent misrepresentations. White v. BDO Seidman, LLP, 249 Ga. App. 668, 670-672 (549 SE2d 490) (2001). To plead a viable “holder claim” the complaint must allege justifiable reliance which under Holmes, supra, must include: (1) allegations showing that the misrepresentations were directly communicated by the directors to the shareholders; and (2) allegations of specific reliance by actions, as distinguished from unspoken and unrecorded thoughts and decisions, that would indicate the shareholders actually relied on the misrepresentations. The complaint failed to make any allegation that could be construed as a misrepresentation made in a direct communication from the directors to the shareholders. To the contrary, the misrepresentations alleged in the complaint were made in communications by the bank or a director to all the bank’s shareholders, and none of the communications was made by personal contact between a director and a shareholder. The complaint also failed to allege any action that could be construed as an indication that a shareholder actually relied on the alleged misrepresentations. Without alleging any action that a shareholder would have taken had they known the truth about the bank’s financial condition, the complaint simply alleges in conclu-sory language that the shareholders relied on the misrepresentations and as a result were damaged when the stock became worthless. Because the complaint failed, as required by Holmes, supra, to allege “direct communication” of the misrepresentations or “specific reliance” on the misrepresentations, we find that the shareholders would not be entitled to relief on their asserted “holder claim” under any state of provable facts, nor could they introduce evidence within the framework of the complaint sufficient to establish a “holder claim.” It follows that the trial court correctly granted the directors’ motion to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim.

Decided February 10, 2012

Reconsideration denied February 28, 2012

Federal & Hasson, R. Keegan Federal, Jr., for appellants.

Foltz & Martin, Mary L. Walker, Kevin H. Hudson, Matthew A. Spivey, for appellees.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       The shareholders of the Alpha Bank & Trust bringing the complaint and this appeal are: Steven J. Anderson; James E. Clair; Dennis Greene; Glen H. Hammer; Nicholas A. Martin by and through his father and next friend Thomas R. Martin; George D. Menden; John M. Riedl; Kia Riedl; Roger A. Santi; Tiffany A. Santi; The Martin Descendant’s Trust; James L. White; and Howard B. Workman. The former directors of the Alpha Bank & Trust named individually as defendants are: Thomas D. Daniel; Barry E. Mansell; James A. Blackwell; and William J. Lohmeyer III.

       The complaint at issue alleges that the shares of bank stock purchased by the shareholders were resalable but not publicly traded. In dismissing the complaint, the trial court did not decide, and we do not address, whether a “holder claim” as recognized in Holmes, supra, may apply to stock which is not publicly traded. For purposes of this appeal, we assume that a “holder claim” could be asserted on the bank’s stock.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A1643.
    ROGERS v. THE STATE.
    (724 SE2d 417)
   Adams, Judge.

Curtis Rogers pled guilty pursuant to a negotiated plea to 91 counts of making unauthorized offers to sell recorded material in violation of OCGA § 16-8-60 (b) under Indictment No. 09-CR-284. At the same time, Rogers entered guilty pleas to Indictment Nos. 09-CR-285 (75 counts) and 10-CR-696 (144 counts) involving violations of the same statute. He was sentenced to a total of thirty years, with ten to serve and the remainder on probation. Rogers appeals from the trial court’s denial of his “Motion to Modify Sentence” in connection with the charges on the 91-count indictment.

The charges in this case arose out of Rogers’s arrest on August 15, 2008 at an exit off Interstate 75 in Bartow County. The evidence showed that Rogers advertised over citizens band radio that he was selling videos of the latest releases and billed himself as the “Movie Man.” When someone responded to his ad, Rogers would arrange a meeting. Rogers was arrested as he sat in a white van parked near two truck stops after a number of men were observed entering and leaving the van. A subsequent search of the van revealed a large black CD case, which was “bulging” with black plastic cases containing DVDRs and CDs with titles handwritten with a Sharpie, in addition to other loose DVDRs and CDs. An expert identified the DVDRs’ recordings as counterfeit. The first 66 counts of the 91-count indictment concern the DVDRs, and each count is identical except for the name of the movie and the number of copies of that particular title. Counts 67-91 concern the CDs discovered in the van, and each of these counts is identical except for the title or description of the CD.

As his sole enumeration, Rogers argues that the counts should have merged for sentencing because they constituted a single course of conduct and thus were not separately punishable. Although this argument appears to be well taken, we are constrained to dismiss Rogers’s appeal pursuant to the Supreme Court of Georgia’s decision in Williams v. State, 287 Ga. 192, 194 (695 SE2d 244) (2010), which held that a claim that a defendant’s convictions merged under OCGA § 16-1-7 (a) is a claim challenging a conviction and not a claim that the resulting sentence is void. OCGA § 16-1-7 (a) provides:

When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

In this instance, Rogers is contending that he should not have been sentenced based upon each individual CD or DVDR, but rather should have been sentenced based upon his course of conduct in collectively offering the items for sale. Pretermitting whether this argument fits precisely under OCGA § 16-1-7 (a), if we accept Rogers’s argument, we would be holding that the statute was drafted to outlaw a course of conduct in offering for sale rather than to outlaw each individual offer. Thus, we would be holding that Rogers could not be convicted and subsequently sentenced for each individual offer. Accordingly, Rogers’s argument is a challenge to his convictions. Certainly, his argument is not in the nature of a challenge to a void sentence, which “presupposes that the trial court was authorized to [convict and] sentence the defendant but the sentence imposed was not allowed by law.” Williams v. State, 287 Ga. at 193. Accordingly, as the Williams opinion notes, a motion to correct or modify an illegal sentence is not an appropriate remedy to attack a conviction in a criminal case. Id. at 194.

Decided February 28, 2012.

Christopher G. Paul, Ashleigh B. Merchant, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Rogers has not properly challenged his convictions. We cannot treat Rogers’s motion as one to withdraw his guilty plea or as a motion in arrest of judgment because the motion would be untimely. “[I]t is well settled that a trial court does not have jurisdiction to entertain a motion to withdraw a guilty plea filed after the term of court in which the defendant was sentenced under the plea.” (Citations omitted.) Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008). And “[a] motion in arrest of judgment [also] must be made during the term at which the judgment was obtained.” OCGA § 17-9-61 (b); Johnson v. State, 298 Ga. App. 639, 645 (4) (a) (680 SE2d 675) (2009). The Bartow County Superior Court entered judgment on Rogers’s guilty plea on May 19, 2010 during that court’s April term, and he filed his Motion to Modify Sentence in December 2010 during the court’s October term. OCGA § 15-6-3 (9) (A).

Rogers’s only recourse, therefore, is through habeas corpus proceedings. See Smith v. State, 283 Ga. at 376, n. 1; McGruder v. State, 307 Ga. App. 379, 380 (2) (705 SE2d 175) (2010).

Appeal dismissed.

Barnes, P. J., and Blackwell, J., concur.

       The statute provides for progressively higher fines and punishments for multiple convictions. A one- to two-year sentence is imposed for the first conviction; a one- to three-year sentence is imposed for a second conviction (with a minimum of 48 hours to serve); and a two-to five-year sentence is imposed for a third or subsequent conviction (with a minimum of six days to serve). OCGA § 16-8-60 (d).

       Rogers entered his plea mid-way through his trial after several witnesses had testified.


text:
    A11A2328.
    KERDPOKA v. THE STATE.
    (724 SE2d 419)
   Adams, Judge.

Yotthachai Kerdpoka was convicted of child molestation, and he appeals. He does not challenge the sufficiency of the evidence. Rather, he challenges rulings of the trial court regarding voir dire, the admission of character evidence, the scope of cross-examination, and prejudicial remarks by a juror; he also contends he received ineffective assistance of counsel.

Construed in favor of the verdict, the evidence shows that Phil and Phoebe Hughes employed a Thai housekeeper named Nitaya Meebamroong for 14 years. Meebamroong’s son — the appellant — came to the United States in 1999 followed by his then seven-year-old daughter in 2001. Kerdpoka worked for Mr. Hughes at his car dealership in Athens, and the child became close with the Hughes family. In February 2006, the child, who was then age 12, told Mrs. Hughes that she had pain in her private parts, which eventually led Mrs. Hughes to take her to Dr. Rachel Murthy, a gynecologist. While at Dr. Murthy’s office, the child told Mrs. Hughes that her father had “been doing bad things to [her],” including having sex with her. Although the child gave inconsistent information to the doctor, at one point she told Dr. Murthy that she had been touched inappropriately in the genital region, including finger and penile penetration. The child was also found to have Herpes antibodies, a sign of infection. At trial, the child testified that her father had touched her inappropriately for years; that he had sexual intercourse with her in the past; that in February 2006, he touched her private part and had sex with her; and that he later came to her school and told her not to tell anyone. A witness who discussed the matter with Kerdpoka when the incident came to light testified that Kerdpoka said, “I stupid”; and Mr. Hughes testified that Kerdpoka said, “I did it.” Thus, although not challenged, we find this evidence was sufficient to support the conviction of child molestation.

1. Kerdpoka contends the trial court erred by denying his request for sequestered voir dire. Prior to jury selection, Kerdpoka’s counsel moved that the voir dire be sequestered, that is, that he be allowed to question the jurors individually, out of the presence of the other jurors. The Code provides that in criminal cases, the prosecution and the defense “shall have the right to an individual examination of each prospective juror from which the jury is to be selected prior to interposing a challenge.” OCGA § 15-12-133. But that Code section grants only “the right to an individual response, not to an individual question,” and “it does not mandate sequestered voir dire.” Hodo v. State, 272 Ga. 272, 273 (2) (a) (528 SE2d 250) (2000). Defendants who desire sequestered individual examination of members of the jury panel must make a request, which is subject to the discretion of the trial court. Id. And “a showing of prejudice from denial is necessary to show an abuse of discretion. [Cits.]” Id.

In this case, the court decided to review the jury panel’s responses to a confidential questionnaire in order to determine whether Kerdpoka’s desired procedure was necessary. Kerdpoka was then allowed to ask each juror follow-up questions based on the questionnaire, and if any juror expressed a desire for privacy, he or she could approach the bench for private questioning by both sides. Thus, the court put in place a procedure to allow some questioning in a confidential manner, and Kerdpoka has not shown how this procedure was a breach of discretion. Moreover, Kerdpoka has not shown how he was prejudiced by this procedure, nor cited even a single instance where this procedure somehow affected the questioned juror or any other jurors. Accordingly, we find no reversible error.

2. Kerdpoka contends the trial court erred by denying his motion for mistrial in connection with evidence that he had been convicted of driving under the influence of alcohol. Kerdpoka’s job supervisor testified, and while on cross-examination regarding Kerdpoka’s job duties, he testified that Kerdpoka’s duties changed after “he got a DUI for driving and we could no longer let him drive.” The quoted part was not responsive to the question. Kerdpoka moved for a mistrial; the court declined the motion but instructed the jury to disregard the testimony; and the court asked whether there was any juror who could not do so, to which no person responded in the affirmative.

“When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. [Cit.] Whether the statements are so prejudicial as to warrant a mistrial is within the trial court’s discretion. [Cit.]” White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997). And we review denial of a mistrial in this situation “for abuse of discretion by examining factors and circumstances, including ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ [Cit.]” Id.

We find this case to be consistent with Browning v. State, 236 Ga. App. 893 (513 SE2d 779) (1999). In that case, a witness inappropriately testified that the defendant had been arrested for DUI, thereby placing his character in evidence. Id. at 894 (2). Following a motion for mistrial, the court gave a curative instruction. Id. Because the testimony appeared to be inadvertent, and given the prompt curative instruction, the court found no abuse of discretion. Id. Here, Kerdpoka’s DUI was not related to the charges against him, the statement appeared to be inadvertent, and the court gave a prompt curative instruction. For these reasons, we find no abuse of discretion. See also Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997) (inadvertent mention of probation). Cases such as Lancaster v. State, 189 Ga. App. 149 (375 SE2d 281) (1988), are distinguishable because the inadvertent testimony that the defendant had a prior DUI was relevant to the pending charges of DUI and driving on a suspended license.

3. Kerdpoka contends the court erred by finding that, in a separate incident, defense counsel opened the door to bad character evidence regarding him drinking and driving. The State presented Dr. Paul Cardozo, a licensed psychologist, who provided psychological counseling to the child-victim. One of Kerdpoka’s trial attorneys was cross-examining Dr. Cardozo about statements he made in a report about the victim. Counsel asked, “Did [the child] admit to you that she still tells adults what she believes they want to hear?” Dr. Cardozo then consulted his notes to make sure he saw the statement to which defense counsel was referring. Dr. Cardozo then testified:

Okay. I’ve got to explain the context of that because that statement is meaningless otherwise. She had talked to me about how her father would drink and drive.

Defense counsel objected on the basis that the answer was not responsive to the question. The court allowed the witness to finish his answer. Dr. Cardozo then testified that, according to the child, at times when Kerdpoka was drinking and driving with the child in the car, and he expressed anger, the child would try to placate him so that he did not blow up at her. Dr. Cardozo explained that was the reason he wrote that “she has tried to please adults ... so that they don’t get mad at her” and that “she does tell adults what. . . she thinks they want to hear.”

On appeal, Kerdpoka contends that the trial court erred by allowing this additional evidence of bad character. But trial counsel did not object on that basis at trial, and therefore that argument is waived on appeal. Chesser v. State, 228 Ga. App. 164, 165 (1) (a) (491 SE2d 213) (1997). Kerdpoka’s claim that his counsel was ineffective in this regard will be addressed below.

4. Kerdpoka contends the trial court erred by limiting cross-examination of Phoebe Hughes and the child-victim. As stated by the Supreme Court, the trial court, in its discretion, may limit cross-examination to reasonable bounds:

While the right to a cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him (OCGA % 24-9-64), yet the scope of the cross-examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused.

Payne v. State, 258 Ga. 711, 712 (2) (373 SE2d 626) (1988).

(a) While Phoebe Hughes, one of the State’s key witnesses, was on cross-examination, Kerdpoka’s counsel believed that she testified inconsistently with her testimony on direct, and he requested that the court reporter replay her earlier testimony in order to impeach her credibility. The court denied the request and decided that the jury could recall the earlier testimony. On appeal, Kerdpoka has not shown the alleged inconsistency with earlier testimony and therefore can show no possible harm from the trial court’s decision. See Inman v. State, 281 Ga. 67, 73 (5) (635 SE2d 125) (2006) (“In order to have reversible error, there must be harm as well as error. [Cit.]”).

(b) Kerdpoka contends the trial court improperly curtailed his cross-examination of the victim in several ways: (1) by requiring defense counsel to stand at a podium while cross-examining her; (2) by asking the victim if she needed to take a break or needed water; (3) by asking defense counsel how much longer the cross-examination would take and commenting that the victim would “need some relief”; (4) by calling for a break in the child’s testimony because of concern with the witness being exhausted, and allowing the State to question other witnesses before resuming the child’s cross-examination.

First, Kerdpoka has not shown how any of the court’s actions was an abuse of discretion by the trial judge, who was clearly attempting to ensure that the 12-year-old child was treated fairly. “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defense might wish.” (Citations and punctuation omitted.) Kolokouris v. State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999). And second, other than a simple assertion that these things “harmed the Defendant in this case as the credibility of this witness was the key issue in the case,” Kerdpoka has failed to show how any of the court’s actions affected the cross-examination or his ability to impeach the witness, and he has not shown that the substance of his questions was limited. Again, no possible harm has been shown, and therefore no reversible error proved.

5. Kerdpoka contends the court erred by failing to grant his motion for mistrial regarding a juror’s remarks made in the presence of other jurors.

At the beginning of one day of trial, defense counsel moved for mistrial based on the fact that Juror Dry made a vomiting gesture to him after leaving the courtroom the previous day and that he had cursed defense counsel as well. In response, the court questioned Juror Dry about the incident separate from the other jurors; the court then questioned each remaining juror individually to determine any possible effect. Juror Dry admitted that he “did something [he] shouldn’t have in the elevator yesterday.” He admitted that in the presence of another juror, defense counsel, and assistant counsel he “let loose with both barrels” about his frustration with how the cross-examination of the child was “long-winded” and repetitive, and about how he was tired of it and how it was “driving [him] insane.” But he steadfastly denied that he had discussed the content of the case with the other jurors, although he did not believe that he could continue to listen to the evidence and make a decision based on that evidence.

The court’s thorough, individual examination of the other jurors about Juror Dry revealed that some had heard other jurors comment about the pace of the trial. The questioning also revealed that another juror — Johnson — had already formed an opinion about the case and had expressed it to some of the other jurors. But further inquiry of all the remaining jurors showed that no other juror had been influenced by any other juror about the substance of the case.

The trial court then excused Jurors Dry and Johnson and seated two alternates. The court explained that it was satisfied that none of the remaining jurors had been influenced by statements that either Dry or Johnson may have made and that it did not feel that the process had been impaired such that a mistrial was required. The court also gave the jury cautionary instructions about discussing the merits of the case prior to the close of the evidence, as well as other instructions.

On appeal, Kerdpoka only argues that Juror Dry’s statements were sufficient to result in a mistrial. The State has the burden of showing no harm in this situation, but a new trial is not required unless the events or statements are so inherently prejudicial as to amount to a lack of due process:

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, a jury verdict will not be upset solely because of such conduct, unless the statements are so prejudicial that the verdict must be deemed inherently lacking in due process. Our inquiry then must be directed to whether this error is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury. Where the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.

(Citations and punctuation omitted.) Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996). Here, the jurors’ responses supported the trial court’s findings completely: that no remaining juror had been influenced regarding the substance of the case by Juror Dry’s comments. Furthermore, we agree with the trial court that comments about the pace or tediousness of the proceedings is not so inherently prejudicial as to result in a lack of due process. Therefore we conclude that the trial court did not err by denying the motion for new trial.

6. Finally, Kerdpoka contends he received ineffective assistance of counsel in three ways: (a) lead counsel failed to adapt his cross-examination of the victim to court rulings thereby causing the court to adjourn cross-examination and causing Juror Dry to react the way he did; (b) his assistant counsel opened the door to the evidence regarding Kerdpoka’s drinking and driving; and (c) defense counsel failed to file an order for medical testing ex parte and under seal, which allowed the State improper access to the information.

To show ineffective assistance, a criminal defendant must show both that his counsel’s performance was deficient, and but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

(a) Kerdpoka contends that lead counsel was ineffective because he “allowed a child witness to remain on the stand for hours over the course of two days, and despite his testimony at the motion for new trial, he did not adjust his cross-examination to prevent this.” In fact, the court was concerned about the effect of counsel’s tactics on the defendant’s case:

I want you to make sure your client is in agreement because I think there is potential for the jury to be very — to take this level of inquiry in a negative way toward your client so I want to make sure that you — that it’s consistent with his wishes to have that inquiry made.

And, as shown above, Juror Dry reacted strongly because he felt the child’s cross-examination was so “long-winded” and repetitive that it was “driving [him] insane.”

First, “[t]he scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Simpson v. State, 277 Ga. 356, 359 (4) (b) (589 SE2d 90) (2003). Regardless, Kerdpoka has not shown harm as a result of counsel’s tactics. In fact, Kerdpoka was acquitted on charges of incest, aggravated sodomy, rape, and two counts of aggravated child molestation, strongly suggesting he received effective assistance of counsel. And although Juror Dry had to be dismissed, the court’s individual inquiry of the remaining jurors showed that none were influenced by Juror Dry’s comments with regard to the merits of the case. We conclude there is no basis for reversal based on this contention.

(b) In the same incident referred to in Division 3, Kerdpoka contends that he received ineffective assistance of counsel when his assistant counsel opened the door to bad character evidence while cross-examining the victim’s psychologist regarding Kerdpoka drinking and driving in the presence of the child. As shown above, Kerdpoka’s assistant counsel did not object to the improper character evidence, move to strike the testimony, or move for a mistrial, thereby waiving those arguments on appeal.

First, Kerdpoka’s assistant counsel did not testify at the hearing on the motion for new trial, which makes it extremely difficult to overcome the presumption that assistant counsel’s conduct was strategic or that it falls within the wide range of reasonable professional conduct. Davis v. State, 280 Ga. 442, 443 (2) (629 SE2d 238) (2006); McRae v. State, 289 Ga. App. 418, 419 (657 SE2d 323) (2008). Second, the evidence that Kerdpoka had a DUI was already in the record when assistant counsel was cross-examining the psychologist. And given that the assistant counsel knew the full context of the psychologist’s statement, including that the psychologist’s report stated that the child had said that Kerdpoka had driven after drinking, the assistant counsel may have been willing to risk eliciting somewhat duplicative unfavorable testimony in order to get the psychologist to testify to the strongly favorable information that the child “tell[s] adults what. . . she thinks they want to hear.” Third, a mistrial would not have been appropriate, anyway, where counsel actually elicits the unfavorable testimony. See Patterson v. State, 285 Ga. 597, 600 (4) (679 SE2d 716) (2009). And, finally, as shown above, the jury appears to have carefully sifted and weighed the facts, as it acquitted Kerdpoka on all the more serious charges. Thus, Kerdpoka has not shown that he was harmed by ineffective assistance of counsel on this ground.

Decided February 28, 2012 —

Elizabeth M. Grant, for appellant.

(c) Kerdpoka raises a third ground of ineffective assistance: that his trial counsel failed to take adequate steps to keep confidential the fact that he had taken a blood test to see whether he had herpes. Kerdpoka reasons as follows: His counsel had to obtain a court order to transport Kerdpoka for testing; the order put the State on notice of the testing, and it eventually obtained the related medical records; those medical records gave the State a basis to cross-examine Kerdpoka at trial; the State asked Kerdpoka about taking a blood test; and the question led to an inference that he had herpes, which the victim also has. He therefore argues that trial counsel was ineffective by failing to make an ex parte request that the order to transport be made under seal.

The record shows, however, that the State was not allowed to introduce the medical records. And the record shows that the State did not ask about the blood test; it simply asked Kerdpoka whether he had herpes. Kerdpoka answered, “The lawyer took me to Athens Regional, but I don’t know what happened.” When the question had to be repeated, Kerdpoka answered, “I never had herpes, but I go check my blood at Regional Hospital, but I do not find the result yet.” Thus, it was Kerdpoka, himself, who first revealed to the jury that there had been a trip to the hospital and a blood test. And the State could have asked whether he had herpes based on the simple fact that the victim had herpes and the knowledge that herpes is communicable. Thus, the way the questioning unfolded at his trial, Kerdpoka is the one who revealed that he had taken a blood test for herpes. “Induced error is impermissible. Edwards v. State, 235 Ga. 603, 604 (221 SE2d 28) [(1975)]. ‘A party cannot claim error . . . where he himself committed or invited the error. . . .’ [Cit.]” Westmoreland v. State, 192 Ga. App. 173, 176-177 (2) (b) (384 SE2d 249) (1989).

Accordingly, Kerdpoka cannot show that he was harmed by any possible ineffective assistance of counsel in failing to keep the transportation order confidential.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

       [T]he law is well-established that the type of “irregularity” that gives rise to such a presumption of prejudice involves juror misconduct that has the potential to injure a defendant’s due process rights, e.g., making an unauthorized visit to the crime scene and then presenting the findings to the jury panel, Butler v. State, 270 Ga. 441 (2) (511 SE2d 180) (1999); privately discussing the defendant’s guilt prior to deliberations in violation of the court’s instructions, see Sims v. State, 266 Ga. [at 419 (3)]; or improperly accessing outside news sources. See Oliver v. State, 265 Ga. 653 (3) (461 SE2d 222) (1995).

        Jones v. State, 282 Ga. 47, 50 (3) (644 SE2d 853) (2007).

       [Acquittal on several felony counts] strongly supports the conclusion that the assistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.
      (Citations omitted.) Green v. State, 218 Ga. App. 648, 651 (3) (a) (463 SE2d 133) (1995).


author: Andrews, Judge.

text:
    A09A1786.
    YEARY v. THE STATE.
    (724 SE2d 427)
   Andrews, Judge.

In Yeary v. State, 302 Ga. App. 535 (690 SE2d 901) (2010), we affirmed Lisa Ann Yeary’s conviction in a bench trial for driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (5). In Yeary v. State, 289 Ga. 394 (711 SE2d 694) (2011), the Supreme Court vacated our judgment and remanded the case to this Court “for further proceedings not inconsistent with this opinion.” Accordingly, the judgment of the Supreme Court is made the judgment of this Court, and we consider the need for further proceedings.

Yeary’s conviction was based in part on evidence that an Intoxilyzer 5000 machine showed that she was driving with an unlawful blood alcohol concentration of 0.179 grams. We addressed Yeary’s claim that the trial court erred by denying her pre-trial motion, filed pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State (OCGA § 24-10-90 et seq.), to obtain the source code for the Intoxilyzer 5000 from a corporation located in Kentucky. The trial court denied the motion on the basis that “[t]he record does not support the conclusion that the source code Defendant seeks is material or relevant.” As stated by the Supreme Court, we affirmed the trial court for a different reason and held under the right for any reason rule that

the Uniform Act could be used to obtain the presence and testimony of an out-of-state witness and evidence in the possession of the witness, but it could not be used to request only the production of evidence located in another state . . . that a request for documents and like things under the Act must be made ancillary to a request for testimony from an out-of-state witness . . . [and that] there is nothing in the record showing that Yeary identified or sought to obtain testimony from a witness who should be compelled to produce the evidence.

Yeary, 289 Ga. at 394.

The Supreme Court recognized that “[w]hile the [Uniform Act] speaks only to securing the attendance of an out-of-state witness, the scope of the statute has been construed in Georgia and several other states to authorize issuance of a summons that requires the out-of-state witness to bring items or documents with the witness.” Yeary, 289 Ga. at 395. Accordingly, the Supreme Court found that

[t]he Uniform Act provides that a Georgia judge may issue a certificate that “a person” located outside Georgia is a “material witness” in a pending Georgia prosecution (OCGA § 24-10-94 (a)), and the Georgia court is also authorized to issue a certificate that the witness is in possession of evidence material to the pending prosecution.

Id. at 396. Considering how the Uniform Act applies to a corporation, the Supreme Court held that “an out-of-state corporation may be ‘a person’ that is a material witness under the Uniform Act and may be determined to be in possession of material evidence.” Id. Furthermore,

[s]ince the corporation must act through human agents, the question then becomes whether the party requesting the certificate of witness-and-evidence materiality is required by the Uniform Act to identify the corporate agent through whom the out-of-state corporation will act in providing the purportedly material evidence, or whether the out-of-state corporation should designate its human agent.

Id. The Supreme Court answered that question as follows:

We believe the more expedient course is to permit a party to request that a corporation, rather than its human agent, be found to be a material witness under the Uniform Act and leave the issue of designation of its human agent to the corporation. Said designation need not occur until after a certificate of materiality has been issued by the Georgia trial court and the court in the county in which the out-of-state corporation is located conducts a hearing which the corporation has been ordered to attend, on the request for issuance of a summons to appear at the Georgia trial with the material evidence purportedly in the corporation’s possession. See OCGA § 24-10-92 (a).

Id. at 396-397. According to the Supreme Court, this Court erred by ruling to the contrary and concluding “that a request under the Uniform Act that an out-of-state corporation be required to produce purportedly material evidence in its possession must be accompanied by the identification as a material witness of the corporate agent through which the corporation is to act.” Id. at 398.

Because we employed the right for any reason rule to affirm for a different reason the trial court’s denial of Yeary’s Uniform Act motion, we did not address the issue of whether the court correctly ruled that “[t]he record does not support the conclusion that the source code Defendant seeks is material or relevant.” Since the trial court’s ruling, the Supreme Court has explained that, when a trial court considers in a criminal prosecution whether to issue a certificate under the Uniform Act requesting the attendance of an out-of-state witness and evidence purportedly in the witness’s custody, the criteria to be satisfied under OCGA § 24-10-94 (a) are whether the witness and the evidence are “material” to the pending Georgia prosecution, and “whether the state in which the out-of-state witness is located has laws for commanding persons within its borders to attend and testify in criminal prosecutions in this state.” (Punctuation omitted.) Davenport v. State, 289 Ga. 399, 401 (711 SE2d 699) (2011); Yeary, 289 Ga. at 396. In determining materiality, the Supreme Court adopted the definition to be applied to “material witness” — “ ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.’ Black’s Law Dictionary (8th ed. 2004).” Davenport, 289 Ga. at 404. If the above criteria are satisfied “the Georgia trial judge may issue a certificate under seal that is then presented to a judge of a court of record in the out-of-state county in which the witness is found.” Id. at 401. The out-of-state judge then determines whether to issue a summons directing the witness to attend and testify in the Georgia criminal proceedings and bring items or documents. Id.

In light of these directions from the Supreme Court, we remand the case to the trial court for reconsideration of Yeary’s motion for a certificate under the Uniform Act, and to determine whether Yeary was entitled to issuance of what the Supreme Court in Yeary called a “certificate of witness-and-evidence materiality.” Id. at 396. If the trial court determines with respect to the requested certificate that the out-of-state corporation is a “material” witness; that the witness is in possession of the Intoxilyzer 5000 source code; and that the source code is “material” evidence, the court must consider whether it ought to have issued the requested certificate in this case, and if so, whether Yeary is entitled to a new trial or a new trial conditioned on the issuance by the appropriate out-of-state court of a subpoena to compel the witness to appear in Georgia and bring the source code with the witness. If the trial court determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Yeary may file a timely appeal from that determination. DiMauro v. State, 310 Ga. App. 526, 529-530 (714 SE2d 105) (2011); Spann v. State, 310 Ga. App. 575, 576 (713 SE2d 722) (2011).

DECIDED February 29, 2012.

Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Richard C. Armond, Assistant Solicitors-General, for appellee.

Judgment affirmed on condition and case remanded with direction.

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

       This Court’s ruling was that Yeary’s motion did not identify a witness because it did not seek to compel the attendance and testimony of a witness. Yeary, 302 Ga. App. at 536-537. We found that Yeary’s motion sought to use the Uniform Act solely as a means to compel the out-of-state corporation to produce the source code for inspection. Id. In support of her motion, Yeary contended in the trial court and on appeal to this Court that the out-of-state corporation could simply produce the source code by digitally transferring it as an e-mail attachment. We are bound, however, by the construction the Supreme Court placed on our opinion.


author: MlKELL, Presiding Judge.

text:
    A11A1579, A11A1580.
    A11A2017, A11A2089.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. SMITH et al. SMITH et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (724 SE2d 430)
   MlKELL, Presiding Judge.

Ernest F. Smith, Sr., and his wife, Irene D. Smith, lost their lives from injuries they sustained after a large oak tree fell on their vehicle as they were driving on State Route 154. Ernest F. Smith, Jr., and Robert M. Smith (the Smiths), individually and as co-executors of their parents’ estates, brought the underlying wrongful death actions against the Georgia Department of Transportation (DOT), alleging that the tree in question was hazardous; that it was growing on the DOT’s right of way; and that the DOT’s employees were negligent in failing to discover and remove it. In each lawsuit, the DOT moved to dismiss based on sovereign immunity. The trial court denied the DOT’s motion to dismiss, and the DOT appeals from these orders in Case Nos. A11A1579 and A11A1580. The trial court subsequently granted summary judgment in favor of the DOT and against the Smiths; the Smiths appeal from these orders in Case Nos. A11A2017 and A11A2089. For the reasons set forth below, we affirm the trial court’s orders in these cases.

Case Nos. A11A1579 and A11A1580

1. In Case Nos. A11A1579 and A11A1580, the DOT argues that it is immune from suit under the Georgia Tort Claims Act (“GTCA”), and therefore that the trial court lacked subject matter jurisdiction over it. “We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.”

The tree which fell and struck the vehicle driven by the decedents was located in the right-of-way maintained by the DOT. In their complaints, the Smiths alleged that the DOT was negligent in failing to inspect the tree adequately and in failing to remove it before it fell on their parents’ car.

According to the affidavit of Eric Pitts, state maintenance engineer for the DOT, the DOT is responsible for maintaining approximately 18,000 linear miles of the State Highway System, including the right-of-way on both sides of the road, and has a limited budget with which to accomplish this end. The DOT’s existing inspection policy for the state right-of-way includes, first, weekly “windshield” inspections by the DOT’s maintenance foreman of the state routes in his or her assigned area; and second, a semi-annual written inspection by the DOT’s assistant area engineer for maintenance, also conducted as a “windshield” inspection while driving. Under the DOT’s tree removal policy, the district maintenance engineer decides whether to remove a tree from the right-of-way and consults with the state agronomist in the event he suspects that a tree is diseased. Although Pitts averred that DOT foremen are specifically trained to inspect “the vegetation adjacent to the paved surface” and other “issues that may affect safe travel on state routes,” the DOT foreman who was responsible for weekly inspections of the area that included the subject tree testified by deposition that during his inspections, beginning in 2004, he did not inspect trees.

Under the GTCA, the state waives its sovereign immunity for the torts of state employees while acting within the scope of their official duties “in the same manner as a private individual or entity would be liable under like circumstances.” The waiver is subject to the exceptions set forth in OCGA § 50-21-24, and “[a] major exception to state liability under the [GTCA] is the ‘discretionary function’ exception.” Under this exception, “[t]he state shall have no liability for losses resulting from . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.”

The DOT contends that its tree inspection “policy” falls within the “discretionary function” exception to the waiver of sovereign immunity found in the GTCA; and that therefore the Smiths’ lawsuits were barred by the doctrine of sovereign immunity. We do not agree.

The GTCA provides the following definition of “discretionary function”: “ ‘Discretionary function or duty’ means a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” In Ga. Dept. of Transp. v. Miller, plaintiffs alleged that the DOT failed to keep a culvert free of debris, causing rainwater to accumulate on the road where plaintiffs’ decedent lost control of his vehicle and was killed in a single-car crash. The DOT contended that its personnel had to make a “judgment call” as to which culverts to inspect after a storm; and that this “judgment call” was a “discretionary function” which was not subject to the waiver of sovereign immunity found in the GTCA. We rejected the DOT’s argument in that case, noting that a “discretionary function” within the meaning of the GTCA was one requiring the exercise of “policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” We explained that “[t]he Supreme Court of Georgia has emphasized that these factors are only intended to signal ‘basic governmental policy decisions,’ and are not to be construed overly broadly.” We concluded that “the day-to-day operational decision of whether and where to send out DOT personnel to inspect for road hazards on the day in question was not a basic governmental policy decision for purposes of the GTCA,” and that therefore it did not fall within the “discretionary function” exception to the GTCA’s waiver of sovereign immunity. Similarly, in Dept. of Transp. v. Brown, our Supreme Court noted that “the discretionary function exception is limited to basic governmental policy decisions,” and that “[t]he key to this issue is the difference between design and operational decisions and policy decisions.” In that case, the Supreme Court held that the DOT’s decision to open a new intersection before installing traffic lights was not a “policy decision” within the scope of the “discretionary function” exception to the immunity waiver.

We conclude that the case before us is governed by our decision in Miller, The DOT employees’ operational inspections of the roadways, and their concomitant decisions as to whether or not to inspect and remove hazardous trees, do not constitute “basic governmental policy decisions” within the scope of the “discretionary function” exception to the waiver of immunity found in the GTCA. The trial court did not err in denying the DOT’s motions to dismiss the Smiths’ claims.

Case Nos. Al 1A2017 and Al 1A2089

2. In Case Nos. A11A2017 and A11A2089, the Smiths appeal from the trial court’s orders granting summary judgment to the DOT on their claims. Because there is no genuine issue of material fact regarding whether the DOT knew or should have known that the tree constituted a dangerous condition, we conclude that the trial court did not err in granting summary judgment in favor of the DOT.

In order to prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may obtain summary judgment by demonstrating that the record contains no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. A defendant is not required to affirmatively disprove the plaintiffs case, but may prevail by pointing to the absence of evidence to support the plaintiffs case. If the defendant does so, the plaintiff cannot rest on [his] pleadings, but must point to specific evidence giving rise to a triable issue of fact.

The standard for a landowner’s liability for damage resulting when a tree on his property falls on adjacent property is well established in Georgia. As this Court stated in Willis v. Maloof, “In regard to liability for a defective tree[,] the ordinary rules of negligence apply. The owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition.” Thus, a landowner who knows that a tree on his property is decayed and may fall and cause damage to another has “a duty to eliminate the danger,” but “there is no duty to consistently and constantly check all. . . trees for non-visible rot[,] as the manifestation of decay must be visible, apparent, and patent.” The following standard applies here: the landowner is only charged with knowledge of the dangerous condition of the tree if “a layman should have reasonably known the tree was diseased. . . . [DJefendant would not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees.”

Here, there is no evidence that the tree at issue showed any evidence of disease or decay that would have been apparent to a layman. The Smiths’ expert examined the tree at issue on February 25, 2009, three months after the tree fell on November 14, 2008. He testified that it was a white oak tree, approximately 90 feet tall before its fall, with a 24-inch diameter. He further testified that the tree was alive and still growing when it fell, with a “pretty good crown spread.” His examination of the base of the tree revealed three visible defects indicating that it should have been removed: a “circling root” approximately six inches in diameter near the base of the tree, which the expert testified would inhibit the normal development of the tree’s root system and root buttress area; a single “fruiting body” or fungus, also called a “mushroom bracket,” located at the base of the tree adjoining the soil, indicative of root buttress decay; and discoloration, or darkening, of the tree’s bark less than six inches above ground level, also indicative of root rot. The witness also testified that the tree had minimal “flare” at its base (a “telephone pole effect”), suggesting that the circling root was inhibiting normal development of the tree; and that this defect would be “suspect” to “a trained eye.” The witness admitted that none of these defects could have been identified during a “drive-by” inspection. There is no evidence that the DOT was aware of, or had been alerted to, the signs of decay at the base of this tree.

Even assuming the DOT’s employees should have noticed these conditions on this particular tree, no evidence was presented from which a jury could find that the DOT’s employees, who were not tree experts, should reasonably have known that the tree was diseased. We conclude that this case is governed by our decision in Willis, There, plaintiffs expert testified to the following visible conditions on the offending tree, indicative to the expert that the tree was diseased or decayed: the bark at the tree’s base “curved under instead of outward”; a cavity or hollow was present on the side of the tree; and fungus was growing on the tree’s bark. We held that this evidence was insufficient as a matter of law to charge the defendant with constructive knowledge that the tree was diseased. Similarly, in the case at bar, “[t]he expert witness presented testimony from which a jury could find that the tree was in fact diseased. However, the testimony of the expert witness did not establish that a layman should have reasonably known the tree was diseased.”

The Smiths also adduced evidence, in the form of photographs, that the subject tree was leaning in the direction of the road. The Smiths argue that this evidence raises a jury issue as to whether the DOT had constructive knowledge of the tree’s dangerous condition. We reject this argument for two reasons. First, “this Court has declined to use the fact that a tree may be overhanging or leaning in one direction as a basis for notice that it is in a dangerous condition.” Second, even assuming that the lean of the tree in this case would have given the DOT constructive notice, that constructive notice would only be notice “of what a reasonable inspection would reveal” as to the condition of the subject tree. And as discussed above, the visible signs at the bottom of this tree — an exposed root, a single fungus growth, a darkened area of bark just above the ground, and lack of “flare” at the base — were insufficient to alert a layman that this tree was diseased or decayed.

The Smiths’ expert also opined that there was “a long history of tree failures in the area [of the tree at issue] evidenced by the amount of tree debris laying [sic] on the ground in various stages of decay.” Relying on Wesleyan College, the Smiths contend that the evidence of alleged “blight” in the area gave the DOT constructive notice of the diseased condition of the tree at issue. The Smiths’ reliance on Wesleyan College is misplaced. There, the evidence showed that “[t]he pines in the general area where the tree fell were blighted and many were dead, diseased, dying, or had fallen.” Thus, the defendant College had actual or constructive knowledge that this was a “problem area,” giving rise to a duty to inspect. In that case, a reasonable inspection would have revealed that the specific tree that fell had a four-foot-long rotten cavity two feet above its base, observable to a layman. Because the rotten cavity in the tree was a “visible, apparent, and patent” indication of decay, and because the evidence showed that this defect had existed “for such a period of time that [the College] in the exercise of ordinary care should have discovered and removed this hazard to the users of the street,” the College was held liable for failing to discover and remove the hazardous tree. In the case at bar, however, even assuming that the DOT should have made “walk-by” inspections by reason of the alleged “blight” in the area, such inspections would not have alerted the DOT to problems with this particular tree. As discussed above, the tree at issue did not exhibit “visible, apparent, and patent” signs of decay or disease which would give rise to a duty to remove it.

Decided February 29, 2012

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert L. Bunner, Assistant Attorney General, for Georgia Department of Transportation.

Johnson & Ward, Clark H. McGehee, William C. Lanham, for Smith et al.

3. Without citing any Georgia authority in support, the Smiths argue that the DOT should be held to a higher standard of care by reason of its responsibility to plan, manage, and maintain the state highway system under OCGA § 32-2-2. “Sovereign immunity applies to the [sítate and its departments and agencies except to the extent that the legislature enacts a specific waiver.” As discussed in Division 1 above, the waiver of sovereign immunity found in the GTCA provides that the state shall be liable for torts “in the same manner as a private individual or entity would be liable under like circumstances.” Therefore, we decline to impose a higher standard of care on the DOT in this case.

4. The Smiths contend that the DOT is liable for failure to comply with its own regulations regarding inspections of roadways. As discussed in Division 2 above, however, even assuming that the DOT failed to comply with its own inspection procedures in this case, the tree at issue here had no “visible, apparent, and patent” signs of disease or decay which would have been discovered in such an inspection.

We affirm the trial court’s grant of summary judgment in favor of the DOT.

Judgments affirmed.

Dillard and Boggs, JJ., concur.

       Though not final orders, the orders denying the DOT’s motions to dismiss are directly appealable under the collateral order doctrine. See Bd. of Regents &c. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009) (under collateral order doctrine, this Court has jurisdiction over direct appeal of denial of motion to dismiss, where order is based on conclusive determination that state defendant is not immune from suit by reason of sovereign immunity).

       OCGA § 50-21-20 et seq.

       See Coosa Valley Technical College v. West, 299 Ga. App. 171, 174 (1) (682 SE2d 187) (2009) (whole court) (state defendant’s motion to dismiss on ground of sovereign immunity was a motion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1)).

       (Citations omitted.) Williams v. Ga. Dept. of Transp., 275 Ga. App. 88, 89 (1) (619 SE2d 763) (2005). Accord Bd. of Regents, supra at 509 (3).

         OCGA § 50-21-23 (a). See Lewis v. Ga. Dept. of Human Resources, 255 Ga. App. 805, 806 (567 SE2d 65) (2002).

        Edwards v. Dept, of Children & Youth Svcs., 271 Ga. 890, 891 (525 SE2d 83) (2000). See OCGA § 50-21-24 (2).

       OCGA § 50-21-24 (2).

       OCGA § 50-21-22 (2).

       300 Ga. App. 857 (686 SE2d 455) (2009).

       Id. at 858.

       Id. at 859 (1).

       (Footnote omitted; emphasis in original.) Id.

       Id., citing Brantley v. Dept. of Human Resources, 271 Ga. 679, 680 (523 SE2d 571) (1999).

       (Footnote omitted.) Miller, supra.

       Id. at 860 (1).

       267 Ga. 6 (471 SE2d 849) (1996).

       Id. at 7 (1).

       Id.

       Id. See also Edwards, supra at 893 (“the decision of state employees on the type of emergency medical care to provide incarcerated juveniles does not fall within the discretionary function exception to the Georgia Tort Claims Act”).

         Supra.

       (Punctuation and footnote omitted.) Klein v. Weaver, 265 Ga. App. 390-391 (593 SE2d 913) (2004).

       184 Ga. App. 349 (361 SE2d 512) (1987).

       Id. at 350 (2). Accord Klein, supra at 392.

       (Citations and punctuation omitted.) Cornett v. Agee, 143 Ga. App. 55, 56 (1) (237 SE2d 522) (1977).

       Id. at 57 (1). Accord Wade v. Howard, 232 Ga. App. 55, 58 (499 SE2d 652) (1998).

        Willis, supra at 350-351 (2).

       Id.

       Id.

       Id. Accord Wade, supra (summary judgment to defendant affirmed where plaintiffs failed to demonstrate patent visible decay in tree before it fell).

        Willis, supra.

       It is not necessary for us to address the parties’ asserted errors concerning whether the photographs from Google Earth were admissible.

        Wade, supra, citing Carter v. Ga. Power Co., 204 Ga. App. 77, 78 (1) (418 SE2d 379) (1992) (city had no duty to check limbs overhanging public road for nonvisible rot); and Cornett, supra at 57 (1) (owner’s liability was not based on fact that tree was “leaning visibly toward the neighboring yard,” but on fact that tree had visible rot in its trunk and appeared “to be in a partially dead condition”) (id. at 55 (1)).

        Wesleyan College v. Weber, 238 Ga. App. 90, 94 (b) (517 SE2d 813) (1999) (whole court).

       Id.

       Id

       Id.

       Id. at 93 (a).

       Id

       Id. at 95 (c).

       OCGA § 32-2-2 (a) (1).

        Williams, supra.

       OCGA § 50-21-23 (a).