author: PHIPPS, Presiding Judge.

text:
    A12A1593.
    DOUGLAS ASPHALT COMPANY et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (735 SE2d 86)
   PHIPPS, Presiding Judge.

Douglas Asphalt Company, Joel Spivey, and Kyle Spivey (collectively, Douglas Asphalt), as assignees of Applied Technical Services, Inc. (ATS), filed a complaint for indemnity and contribution against the Georgia Department of Transportation (GDOT) seeking payment of damages a jury awarded Douglas Asphalt in a separate lawsuit filed by Douglas Asphalt against ATS. GDOT moved to dismiss on the ground of sovereign immunity. The trial court granted the motion, and Douglas Asphalt appeals. For the reasons that follow, we affirm.

The complaint filed in August 2010 by Douglas Asphalt against GDOT alleged that in 2003, GDOT contracted with ATS for ATS to test core samples of asphalt from milling and resurfacing road work projects earlier performed by Douglas Asphalt. Douglas Asphalt alleged that the purpose of the testing was to determine the amount of hydrated lime which had been placed in the asphalt mixture before Douglas Asphalt applied the mixture to the roadway. Douglas Asphalt alleged that GDOT had instructed ATS to perform a particular type of testing procedure, which GDOT falsely claimed was GDOT’s standard protocol, and despite GDOT’s knowledge that another testing service had refused to perform such testing because it was unreliable. Douglas Asphalt further alleged that during the testing process, an ATS chemist who notified GDOT of concerns about the procedure’s accuracy and validity was instructed by GDOT to continue testing the samples utilizing the particular testing procedure GDOT had designated. Douglas Asphalt alleged that based on the test results, GDOT declared Douglas Asphalt in default on more than 100 projects and removed it (Douglas Asphalt) from GDOT’s “bidders list.”

It is undisputed that in October 2006, Douglas Asphalt sued ATS, among others (but not GDOT), in federal court, and in October 2009, obtained a jury verdict of $150 million against ATS related to ATS’s testing of the samples. Before the jury had returned the verdict, however, Douglas Asphalt and ATS entered into an agreement wherein ATS agreed to pay Douglas Asphalt $1 million and to assign its right to sue GDOT in the event the jury rendered a verdict in Douglas Asphalt’s favor.

In October 2010, GDOT simultaneously filed an answer and a motion to dismiss the complaint based on sovereign immunity. Douglas Asphalt filed a response to the motion, and on September 1, 2011, the trial court denied GDOT’s motion to dismiss. But on September 20, 2011, a federal appeals court overturned the jury’s $150 million verdict. GDOT filed a motion for reconsideration in this case, asking (again) for dismissal of the complaint. Douglas Asphalt responded, contending that despite the fact that the $150 million verdict against ATS in federal court had been overturned, it (Douglas Asphalt) retained other assigned claims against GDOT. On February 14,2012, the trial court granted GDOT’s motion to dismiss based on sovereign immunity. It is from this order that Douglas Asphalt appeals.

The Georgia Tort Claims Act sets forth exceptions to a state agency’s sovereign immunity, which are subject to certain limitations; and a plaintiff bears the burden of establishing that a state agency’s conduct is excepted from sovereign immunity. Moreover, we review a trial court’s grant of a motion to dismiss on sovereign-immunity grounds de novo, bearing in mind that a motion to dismiss may be granted only when a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim. Nevertheless, when the trial court determines a jurisdictional issue based upon conflicting factual issues, on appeal, the court’s finding on a factual issue will be sustained if there is evidence which authorizes the finding.

On appeal, Douglas Asphalt contends that the trial court erred in dismissing the complaint for indemnity and contribution based on sovereign immunity because GDOT was liable to Douglas Asphalt, as assignee of ATS, for breach of contract in the instant suit; and because GDOT could have been liable to Douglas Asphalt for negligence claims in the federal case.

1. “Georgia law defines indemnity as the obligation or duty resting on one person to make good any loss or damage another has incurred by acting at his request or for his benefit.” Georgia law recognizes two broad categories of indemnity: as created by contract and as under the common law of vicarious liability. Only the former is involved here; Douglas Asphalt does not assert that ATS was an agent or employee of GDOT for purposes of a claim for vicarious liability.

“The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit.” “The defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract . . . entered into by the state or its departments and agencies.”

In terms of liability for indemnity as created by contract, “unless the words of a contract explicitly show an agreement to indemnify another party for his own negligence, such an agreement cannot be implied.” “Georgia law is very clear that a contract does not indemnify the indemnitee against its own negligence unless it says so____”

Douglas Asphalt contends that a written contract existed between GDOT and ATS to test the samples, and that GDOT breached that contract by falsely representing to ATS that the testing procedure GDOT instructed ATS to perform was a standard operating procedure of GDOT. Douglas Asphalt pointed to multiple documents in the record purporting to show the existence of a contract — a facsimile transmittal dated August 14, 2003, wherein one ATS employee directed another ATS employee to review attached documents concerning the procedure for testing the samples; an e-mail dated August 15, 2003, wherein ATS provided GDOT with its rates for the testing services; e-mails from August 15, 2003, to July 28, 2006, between ATS and GDOT employees regarding discrepancies in test results, GDOT’s desire for additional testing, the cost of additional testing, test results, and the payment of invoices; and data sheets.

“[A] valid written contract may be formed when there are multiple signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract and the individual documents, considered together, include all of the necessary terms of a contract.” In this case, however, the documents referenced above are not final and signed contemporaneous agreements between the parties.

Even if a written contract existed, GDOT’s sovereign immunity would not be waived because there are no words explicitly showing an agreement to indemnify. Douglas Asphalt failed to show the existence of a written indemnity provision so as to demonstrate a waiver of GDOT’s sovereign immunity, and the trial court properly granted GDOT’s motion to dismiss as to this issue.

2. “The right to contribution relates only to joint tortfeasors,” and “[a]n alleged joint tortfeasor who cannot be held liable on the underlying tort claim cannot be held liable for contribution. . . .” Here, the claim for contribution against GDOT, made by Douglas Asphalt as assignee of ATS, was necessarily premised on GDOT’s status as a joint tortfeasor (with ATS) for liability to Douglas Asphalt.

Under the Georgia Tort Claims Act, the state’s sovereign immunity is waived for lawsuits seeking contribution from the state on the ground that the state was a joint tortfeasor so long as the activity of the state that is alleged to make it a tortfeasor, and thus subject to a claim for contribution, does not fall within one of the exceptions to the waiver of sovereign immunity listed in OCGA § 50-21-24.

Douglas Asphalt contends that OCGA § 50-21-24 does not except GDOT from liability for negligence claims, and thus, sovereign immunity was waived. Douglas Asphalt asserts that GDOT was negligent in instructing ATS to use a faulty testing procedure to evaluate the hydrated lime content of asphalt mixture used by Douglas Asphalt and in utilizing the results from that procedure as the basis for finding Douglas Asphalt in default, despite having been informed that the validity of the procedure had been questioned.

GDOT argues that it had no liability for ATS’s actions because the actions fell within two exceptions set forth in OCGA § 50-21-24.

We need not reach the issue of whether Douglas Asphalt’s claim for contribution fell within an exception to the state’s tort liability set out in OCGA § 50-21-24, however, because the asserted claim by Douglas Asphalt against GDOT sounds in contract, not tort. This is because the claim would have risen from GDOT’s duties to ATS as defined by the alleged contract between GDOT and ATS. As Douglas Asphalt states in its appellate brief: “The testing procedures were dictated by contract. . . .”

In order to maintain an action ex delicto because of a breach of duty growing out of a contractual relationship, the breach must be shown to have been a breach of duty imposed by law and not merely the breach of a duty imposed by the contract itself. If there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained.

Indeed, Douglas Asphalt has not shown the existence of any duty imposed by law governing the performance of testing procedures to determine the amount of hydrated lime content in an asphalt mixture applied to roadways. The duty, if any, was created under the alleged contract between GDOT and ATS. And, as discussed in Division 1 (a), because there was no written contract, GDOT’s sovereign immunity was not waived. Accordingly, the trial court did not err in granting GDOT’s motion to dismiss.

Decided November 29, 2012

Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney, for appellants.

Samuel S. Olens, Attorney General, Joan G. Crumpler, Assistant Attorney General, for appellee.

Judgment affirmed.

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

       See Douglas Asphalt Co. v. Qore, Inc., 2010 U. S. Dist. LEXIS 50141 (S.D. Ga. May 20, 2010).

        See Douglas Asphalt Co. v. Qore, Inc., 657 F3d 1146 (11th Cir. 2011).

        Sadler v. Dept. of Transp., 311 Ga. App. 601, 603 (716 SE2d 639) (2011) (punctuation and footnotes omitted).

        Lanier at McEver v. Planners & Engineers Collaborative, 284 Ga. 204, 206 (2) (663 SE2d 240) (2008) (citation and punctuation omitted).

       See Urban Svcs. Group v. Royal Group, 295 Ga. App. 350, 353 (2) (671 SE2d 838) (2008).

       See Emergency Professionals of Atlanta v. Watson, 288 Ga. App. 473, 475-477 (1), (2) (654 SE2d 434) (2007) (alleged tortfeasor not liable for acts of an independent contractor); compare Fieldstone Center v. Stanley, 216 Ga. App. 803, 805 (3) (456 SE2d 61) (1995).

        Cameron v. Lang, 274 Ga. 122,126 (3) (549 SE2d 341) (2001) (footnote omitted); Watts v. City of Dillard, 294 Ga. App. 861, 862 (1) (670 SE2d 442) (2008); Weaver v. City of Statesboro, 288 Ga. App. 32, 33 (1) (653 SE2d 765) (2007).

        Wilson v. Bd. of Regents &c. of Ga., 262 Ga. 413, 414 (2) (419 SE2d 916) (1992) (citation and punctuation omitted).

        SRG Consulting v. Eagle Hosp. Physicians, 282 Ga. App. 842, 845 (2) (640 SE2d 306) (2006) (punctuation andfootnote omitted); Emergency Professionals of Atlanta, supra at 477 (2) (unless a contract for indemnification explicitly and expressly states that the negligence of the indemnitee is covered, this appellate court will not interpret such an agreement as a promise to save the indemnitee from his own negligence).

        United Parcel Svc. v. Colt Security Agency, 296 Ga. App. 815, 816 (1) (676 SE2d 22) (2009); Satilla Community Svc. Bd. v. Satilla Health Svcs., 275 Ga. 805, 806-807 (1) (573 SE2d 31) (2002) (rejecting implied contractual indemnification claim); Urban Svcs. Group, supra.

        Bd. of Regents &c. v. Doe, 278 Ga. App. 878, 881 (1) (a) (630 SE2d 85) (2006) (citation omitted).

       See Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga.App. 683, 686-687 (1) (b) (722 SE2d 403) (2012); cf Bd. of Regents &c., supra at 878-885 (1).

        SRG Consulting, supra; Emergency Professionals of Atlanta, supra; United Parcel Svc., supra; Satilla Community Svc. Bd., supra; Urban Svcs. Group, supra.

       See Ga. Dept. of Community Health, supra.

        Greenhorne & O’Mara v. City of Atlanta, 298 Ga. App. 261, 262 (679 SE2d 818) (2009) (punctuation and footnote omitted).

        Ga. Ports Auth. v. Andre Rickmers &c. Co., 262 Ga. App. 591, 596 (5) (a) (585 SE2d 883) (2003) (footnote omitted), rev’d on other grounds, Hines v. Ga. Ports Auth., 278 Ga. 631 (604 SE2d 189) (2004).

       See Greenhorne & O’Mara, supra at 262.

       See Dept. of Transp. v. Montgomery Tank Lines, 276 Ga. 105 (575 SE2d 487) (2003).

       See Keith v. Alexander Underwriters Gen. Agency, 226 Ga. App. 838, 840 (2) (487 SE2d 673) (1997).

       Id.

        Bank South v. Harrell, 181 Ga. App. 64, 67 (2) (351 SE2d 263) (1986) (citations and punctuation omitted).

       Supra.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1637.
    THE KROGER COMPANY v. WALTERS et al.
    (735 SE2d 99)
   Branch, Judge.

Craig and Lisa Walters brought this slip-and-fall action against The Kroger Company. During discovery, the trial court struck Kroger’s answer on the ground that Kroger had spoliated evidence and acted in bad faith, thereby precluding Kroger from introducing evidence at trial to contest its negligence. The case went to trial on causation, damages, and attorney fees. Walters, age 48 at the time of the fall, was able to show the fall caused a severe spine injury that required surgery and resulted in a lifelong disability. A jury awarded $1,689,456 in damages and $675,782.40 in attorney fees. Kroger appeals and claims six errors, primarily related to the issues of spoliation, litigation expenses, and damages. We affirm the ruling on spoliation but reverse the judgment because the trial court erroneously excluded material evidence at trial.

1. Kroger first challenges the court’s pretrial decision to strike Kroger’s answer on the ground of spoliation. “[S]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted.) Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009). “Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis.” (Citation omitted.) AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (1) (667 SE2d 150) (2008). A trial court’s decision imposing sanctions for spoliation is reviewed for abuse of discretion. Wal-Mart Stores v. Lee, 290 Ga. App. 541, 546 (1) (659 SE2d 905) (2008).

The court’s decision on spoliation was based on the discovery evidence. Construed in favor of the trial court’s decision, that evidence shows that on May 25, 2008, Walters slipped and fell on a piece of banana in the meat department of a Kroger store and landed on his left hip and left elbow. Initially, Walters did not experience pain or other symptoms. Peyton Kelley, the store co-manager, came to the scene, saw the alleged cause of the fall, which he described as “mushy” and smelling like banana, and spoke with Walters and a customer who witnessed the fall. Kelley asked Walters if he was okay, and Walters replied that he appeared to be fine. But Kelley also remembered that Walters said he was a little sore, and Kelley noticed that Walters was limping. Kelley told Walters to let him know if he had any problems so that he could take care of it. Walters gave Kelley his name and resumed shopping; he did not threaten a lawsuit. But when he got in his car to go home, Walters began to experience unusual symptoms, including tingling in his toes, numbness in his legs, and, eventually, loss of balance, which grew worse over time.

Following Kroger’s stated procedure to investigate every such incident, Kelley began to investigate Walters’ fall that same day. He spoke to store employees, including the employee nearest to the fall. And he downloaded from a company website a six-page “Customer Incident Report & Investigation Check List,” which he completed, partially that day and partially thereafter, based on his notes from the day of the incident, including a diagram of where Walters fell. That diagram is marked as having been drawn on May 25, and every page of the customer incident report, including the diagram, states that it was made “in anticipation of litigation under the direction of legal counsel.” The report has instructions to mail it to “Sedgwick CMS, Kroger Liability Unit.”

Kelley admitted, however, that in several regards, he did not follow store policy regarding his investigation. Kelley reviewed video from the security cameras located in the vicinity of the fall, including camera 17, the camera closest to that area. The cameras’ hard drives retain their video for 17 days but are then erased and reused; to retain a video for a longer time, one must transfer the file to a CD or DVD. Store policy dictated that if the video covered the area of the fall, it should be retained. After viewing the video captured at the time of the fall, Kelley decided not to save any video despite the company policy. He testified that none of the cameras captured the incident. He also testified, however, that he could not recall reviewing the video images that day, that he did not know why he did not make a copy, and that he could not be sure the system was actually working at the time. Kelley admitted that, in addition to the fall itself, the videos might have shown when the store aisles were inspected, how and when banana came to be on the floor in the meat department, and whether any store employees were in the vicinity of the fall. Kelley also testified that if he had looked at the video, he should have recorded his findings in the incident report, yet the report does not reference any video. Finally, Kelley had a still camera at the store, and he testified that he should have taken photographs of the scene but did not do so.

Walters spoke to Kelley again at the store within two weeks of the fall and told him that he had an appointment with a doctor. Walters also saw Kelley from time to time thereafter when he went shopping. Walters first saw an orthopedist on July 3, 2008. On July 9, 2008, more than 17 days after the fall, Walters again spoke to Kelley and reported having problems with his back and legs beginning a month after the fall; he also stated that he needed help with his medical bills. During that conversation, Kelley obtained a telephone number and address for Walters and said he was going to submit the claim to Sedgwick. In August, Kelley faxed the Customer Incident Report to the company risk management office and to Sedgwick; the report has a handwritten “Claim if’ filled in.

Walter and his wife filed suit on March 6, 2009, less than a year after the fall. At his deposition on November 30,2009, Kelley testified that camera 17 — the camera closest to the scene of the fall—had not been moved or re-aimed since the day of the fall. Subsequently, Kroger produced exemplar video (taken from each camera on January 7, 2010), showing each camera’s field of view, and camera 17 did not point directly at the place where Walters fell. On August 3, 2010, Walters’ counsel took the deposition of store manager Harry Turner in his office at the store. Turner testified that none of the indoor cameras had been re-aimed, including camera 17, since he began managing the store in 2004 and that the cameras could not be moved electronically; rather, a person would have to climb a ladder to adjust them. But Walters’ counsel then asked to view a live feed from camera 17, and Kroger’s attorney objected. Following a discussion among the lawyers, the live feed was shown, and it was discovered that the camera was not pointed in the same direction as the exemplar and that, instead, the camera pointed directly at the location of Walters’ fall. Thereafter, Turner testified that he could not say which way the camera was pointed at the time of the fall.

Walters filed a motion for sanctions, and the court held a hearing on November 12, 2010. On December 14, 2010, the court entered an order finding that Kroger had destroyed the video from the date and time of the incident by not preserving it; that the video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor; that the Customer Incident report states that it was made in anticipation of litigation; that the exemplar video showed the general area but not the exact location of the fall; and that the subsequent deposition revealed that the camera was “centered on the exact location of Walters’ fall and not the location shown in the prior images produced by Kroger and could have clearly shown the exact conditions at the time of Walters’ fall and whether Kroger employees knew or should have known of the dangerous condition in that area.” The court concluded that Kroger had spoliated the video evidence, which could have been maintained at minimal expense; that the spoliation prejudiced Walters; and that Kroger “acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions.” At the same time, and based on its ruling on spoliation, the trial court denied Kroger’s motion for summary judgment on the merits.

(a) The evidence outlined above shows that the court’s factual findings are supported by some evidence in the record.

(b) Kroger argues, however, that the court’s order cannot be sustained because the facts fail to show it had notice at the time the video was erased that Walters was contemplating litigation, as is required in spoliation cases. See Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007); Kitchens v. Brusman, 303 Ga. App. 703, 707 (1) (a) (694 SE2d 667) (2010). As a part of its argument, Kroger asserts that Kelley had no contact with Walters during the 17-day period in which he could have saved the video in question. But Walters deposed that he returned to the store “a week and a half, two weeks” after his fall and told Kelley about his upcoming doctor’s appointment. Further, beginning on the day of the fall, Kelley began to prepare a report which states that it was made in anticipation of litigation. And some evidence supports the trial court’s conclusion that during discovery Kroger submitted a false exemplar from camera 17, from which an inference could arise that Kroger knew the original video should not have been deleted.

The facts taken as a whole are sufficient to support the trial court’s findings. In Baxley, a dram-shop liability case, the Supreme Court reversed the trial court and this Court and found that evidence similar to that presented here was sufficient to raise an issue of spoliation, including an issue of whether litigation was contemplated, and that, therefore, the case should go to trial. Baxley, 282 Ga. at 313-314. As the Supreme Court explained:

There was proof of spoliation here, as [the - defendant’s] manager was aware of her customer’s involvement in the accident at issue and took steps to investigate the day after it occurred, yet failed to preserve the recording of the pertinent events and allowed any potential videotaped evidence to be destroyed. Although the manager stated that she did not see a need to save the recording because there was no camera covering the area where [the customer] was sitting, a meaningful link between [the plaintiff’s] claims against [the defendant] and the spoliation existed, as the recording could have contained evidence relevant to the critical issue of whether [the customer] would soon be driving, e.g., an image of her walking through [the restaurant] with keys in hand or leaving with another person.

Id. The high court concluded, “Thus, because [defendant’s] manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence may have been captured as to whether [the customer] would soon be driving, a rebuttable presumption arose against [the defendants].” (Citation omitted.) Id. at 314.

Kroger’s reliance on Paggett v. Kroger Co., 311 Ga. App. 690 (716 SE2d 792) (2011), is misplaced, in large part because in that case the trial court found that there was no spoliation, and our decision on appeal was merely a finding that the trial court did not abuse its discretion. Id. at 693 (2). Here, the trial court found spoliation. Second, in Paggett, there is no evidence the plaintiff returned to the scene before the video was erased to explain that he had an appointment with a doctor nor evidence that the store later manipulated the aim of the relevant video camera; and there was evidence that the manager did not review the video, that the manager would not knowingly discard information relevant to a potential lawsuit, and that the plaintiff only slipped in rainwater. Compare also Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 797 (1) (697 SE2d 888) (2010) (no evidence that plaintiffs father gave the owners notice that he was contemplating litigation).

In sum, we find no abuse of discretion in the trial court’s finding of spoliation.

(c) Our holding on spoliation also resolves Kroger’s assertion that the trial court erred by relying on the spoliation decision when denying Kroger’s motion for summary judgment. See Baxley, 282 Ga. at 313 (proof of spoliation creates presumption that evidence would have been harmful, rendering summary judgment inappropriate).

2. Prior to trial, Kroger moved in limine to exclude all evidence of (1) spoliation, i.e., deletion of the video, and (2) manipulation of evidence, i.e., re-aiming the camera, on the ground that they were not relevant given that the court had struck its answer, thereby establishing Kroger’s negligence as a matter of law. Kroger further argued that the evidence was more prejudicial than probative. Walters also moved in limine: he sought to exclude the testimony of David Wigley, the meat department manager who had been with Kroger for 25 years, who allegedly re-aimed camera 17 in 2010, on the ground that Kroger withheld his identification as a witness until the eve of trial. The trial court decided to allow evidence of spoliation and manipulation but not to allow Wigley to testify. Kroger contends the trial court erred by denying its motion and by granting Walters’ motion. We conclude the trial court correctly allowed evidence of spoliation but abused its discretion by excluding testimony from Wigley.

“We review a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Punctuation and footnote omitted.) Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

(a) In addition to compensation for his injury, Walters sought expenses of litigation and attorney fees under OCGA § 13-6-11 for stubborn litigiousness and unnecessary trouble and expense. The evidence of spoliation was relevant to the claim for fees under OCGA § 13-6-11 and the issue of causation; it was, therefore, properly admitted.

(i) Walters claimed that Kroger was stubbornly litigious and caused unnecessary trouble and expense, which requires showing that “there exists no bona fide controversy or dispute regarding liability for the underlying cause of action.” (Citation omitted.) David G. Brown, P.E. v. Kent, 274 Ga. 849, 850 (561 SE2d 89) (2002).

At trial, Walters presented some evidence that raised a reasonable inference that, prior to suit being filed, Kroger deleted the video from camera 17 in violation of company policy and re-aimed the camera to cover its tracks. That video could have shown that Kroger failed to reasonably inspect the area of the fall or even that, prior to the fall, an employee was near the banana but failed to clean it up. Thus, the video could have established that Kroger was negligent and knew that it was negligent. Yet Walters was forced to file suit in an attempt to establish Kroger’s negligence. Moreover, Walters had to spend part of his litigation effort establishing Kroger’s spoliation of evidence.

Thus, if the video would have shown that Kroger was negligent, then Walters was forced to file suit in a case where there was no bona fide controversy as to negligence. “Where [no bona fide controversy] exists, then forcing a plaintiff to resort to the courts in order to collect is plainly causing him ‘unnecessary trouble and expense.’ ” Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 524 (191 SE2d 317) (1972). Such a “so sue me” attitude authorizes the imposition of fees:

A defendant without a defense may still gamble on a person’s unwillingness to go to the trouble and expense of a lawsuit; but there will be, as in any true gamble, a price to pay for losing.

Id. at 525. And the question of whether there was a bona fide controversy is for the jury “unless the facts preclude such a finding as a matter of law.” Webster v. Brown, 213 Ga. App. 845, 846 (2) (446 SE2d 522) (1994).

Finally, without a dispute as to liability, “the raising at trial of a dispute as to the amount of liability, without more, will not satisfy the bona fide controversy requirement.” Delta Air Lines v. Isaacs, 141 Ga. App. 209, 211-212 (3) (233 SE2d212) (1977). See also Daniel v. Smith, 266 Ga. App. 637, 638-639 (1) (597 SE2d 637) (2004).

Accordingly, we find no abuse of discretion by the trial court in allowing evidence of the spoliation and manipulation of evidence to be presented to the jury.

(ii) Second, the evidence of spoliation and manipulation was also relevant to Walters’ claim that Kroger caused his injuries. Spoliation can establish a “presumption that the evidence would have been harmful to the spoliator.” (Citations and punctuation omitted.) Baxley, 282 Ga. at 313. The video could have shown the manner in which and how hard Walters fell, how he appeared after the fall, and the degree to which he was limping or otherwise affected as he left the scene — all issues that are relevant to whether the fall caused his injuries. Thus, the jury was entitled to hear evidence of spoliation relevant to causation. See Langlois v. Wolford, 246 Ga. App. 209, 212 (2) (539 SE2d 565) (2000) (spoliation evidence relevant to issues of liability). And, as also shown in Langlois, evidence of spoliation can be relevant to the credibility and impeachment of the spoliator. Id.

Finally, Kroger claims that the trial court erred by admitting the evidence that it manipulated the aim of the camera on the ground that any possible manipulation occurred during the litigation and was not related to the underlying tort. See David G. Brown, P.E. v. Kent, supra (“statutory recovery [under OCGA § 13-6-11] for stubborn litigiousness or causing unnecessary trouble and expense is authorized if there exists no bona fide controversy or dispute regarding liability for the underlying cause of action”) (citation omitted). But the date that someone re-aimed the camera was an issue of fact for the jury. Moreover evidence of events occurring “after a cause of action in tort arises may be admissible to demonstrate that [the defendant] caused the plaintiff unnecessary trouble and expense.” Brown v. Baker, 197 Ga. App. 466, 468 (3) (398 SE2d 797) (1990), citing U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744, 745 (2) (320 SE2d 868) (1984) and Buffalo Cab, 126 Ga. App. at 524.

(b) We agree, however, that, given the trial court admitted evidence of spoliation and manipulation, it abused its discretion by granting Walters’ motion to prohibit Kroger from calling Wigley as a witness, because his testimony, too, was relevant to spoliation and manipulation.

A week before trial, which was initially scheduled for November 2011, Kroger identified Wigley as a potential trial witness regarding the re-aiming of the camera. The trial was continued for other reasons, but during the interim, Wigley was deposed. At the rescheduled trial set two months later, Walters argued that Wigley should be excluded because of the late notice, the “suspect circumstances of his involvement in this case at this late date,” and “the fact that he was never identified when this issue [regarding spoliation and re-aiming the camera] was being litigated for months.” Walters added, “I just don’t think the circumstances of him coming forward right on the eve of trial on a critical issue that’s changed the course of this entire case should be allowed.” Also, Kroger had offered a different explanation for the re-aiming of the camera during the hearing on spoliation — that contractors may have moved the cameras. The court granted Walters’ motion in limine and stated, “I don’t think it will be appropriate for the witness to testify now to explain away something that — if it was going to be explained away, it should have been done prior to the Court’s ruling [on spoliation].” At trial, Kroger proffered that Wigley would testify that he re-aimed camera 17 in the spring or summer of 2010 in order to respond to shoplifting in that area of the store.

In a civil suit it is an abuse of discretion to exclude a relevant witness solely on the ground that the witness was not identified during discovery or in a timely manner. Infinite Energy v. Cottrell, 295 Ga. App. 306, 309 (3) (671 SE2d 294) (2008); Hart v. Northside Hosp., 291 Ga. App. 208, 209-210 (1) (661 SE2d 576) (2008). Compare Collins v. Dickman, 295 Ga. App. 601, 603-604 (1) (672 SE2d 433) (2008) (exception for violation of an express court order). The proper remedy is to order a postponement to allow the party sufficient time to react or, if necessary, a mistrial. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383) (1992); Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 379 (2) (274 SE2d 761) (1980). In this case, as a result of a continuance, Walters had time to depose Wigley prior to the rescheduled trial, so the element of surprise was eliminated.

Disallowing the evidence was harmful to Kroger. See White, 203 Ga. App. at 582 (5) (improper exclusion of evidence must be harmful as well as erroneous to warrant reversal). Wigley would have testified about re-aiming of the camera, which, as shown above, was relevant to issues being tried. Although Kroger’s negligence had been established, the jury still had to decide causation, damages, and attorney fees. And the evidence of spoliation that was presented raised a presumption that the video would have been harmful to Kroger. Wigley’s testimony suggests that re-aiming the camera occurred for an innocent reason, which could have helped to rebut the presumption that the missing video was harmful to Kroger.

3. Kroger contends the trial court erred by denying its motion for directed verdict on the issue of attorney fees and expenses of litigation. But the issue of fees under OCGA § 13-6-11 “is a question for the jury and an award will be upheld if any evidence is presented to support the award.” (Citation and punctuation omitted.) Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (3) (426 SE2d 376) (1992). As shown above, there was some evidence that Kroger caused Walters unnecessary trouble and expense. Thus, a directed verdict was not warranted.

Decided November 29, 2012.

Douglas A. Wilde, for appellant.

Bell & Mulholland, Lloyd N. Bell, Bruce Berger, J. Darren Summerville, for appellees.

4. Kroger contends the trial court erred by denying its motion for partial directed verdict on the issue of past and future lost earnings. Because causation and damages will be retried and the evidence on these issues might not be the same, we need not address this issue now. See generally Godwin v. Godwin, 265 Ga. 891, 892 (2) (463 SE2d 685) (1995).

In sum, we affirm the trial court’s order on spoliation but reverse the judgment and remand for a new trial on causation, damages and the claim for fees under OCGA § 13-6-11.

Judgment affirmed in part and reversed in part, and case remanded with direction.

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

       Kroger, in fact, would later seek summary judgment on the grounds that no employee had knowledge of the banana, no employee was in the immediate vicinity of the fall, no evidence showed how long the banana had been on the floor, and regular inspections had occurred.

       The trial court granted a certificate of immediate review, and this Court granted Kroger’s application for interlocutory appeal. Nevertheless, on October 3,2011, this Court dismissed the interlocutory appeal as improvidently granted.

       That court later clarified that Baxley did not expand the spoliation doctrine with this wording: “the phrase ‘potential for litigation’ from Baxley refers to litigation that is actually ‘contemplated or pending,’ and nothing more.” Silman, 286 Ga. at 28.

       Kroger does not challenge as an abuse of discretion the sanction imposed for spoliation.

       In his first amended complaint, Walters did not seek fees for bad faith under OCGA § 13-6-11, nor did he raise a claim for fees and expenses under OCGA § 9-15-14.

       During the deposition, Wigley stated that no one from Kroger had ever contacted him about the cameras until just prior to trial. Walters asserted that Kroger never amended its discovery or otherwise provided notice of Wigley as a witness until November 2011. Indeed, Kroger’s counsel admitted he had not gone back through the discovery requests to see if Wiglets testimony would have been responsive to any of Walters’ earlier discovery requests.


author: MILLER, Presiding Judge.

text:
    A12A1659.
    CIUPERCA v. RES-GA SEVEN, LLC.
    (735 SE2d 107)
   MILLER, Presiding Judge.

This case arises from an application for confirmation of a foreclosure sale filed by RES-GA Seven, LLC (“RES-GA”) against Romeo Ciuperca. Prior to the confirmation hearing RES-GA moved for an order providing for the resale of the property in accordance with OCGA § 44-14-161 (c). Following the confirmation hearing, the trial court ordered a resale of the property, finding good cause to believe that the property did not sell for fair market value. Ciuperca appeals, contending that the trial court (1) erred in finding that the notice provisions of OCGA § 44-14-162.2 did not apply, and (2) erred in allowing a resale without any showing of good cause. We discern no error and affirm.

The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

(Citations and punctuation omitted.) Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721 (725 SE2d 841) (2012).

So viewed, the evidence shows that on April 16, 2004, Ciuperca executed a promissory note (“Note”) and Security Deed for a revolving line of credit in the amount of $700,000. Pursuant to the Security Deed, The Community Bank (“TCB”) acquired a security interest in Ciuperca’s real property located at 2751 Ozora Church Road in Loganville, Georgia. The Note was renewed on April 27, 2005, and again on May 11, 2006. On June 8, 2006, Ciuperca executed a Note modification and renewal, increasing the principal balance to $800,000, and a modification of the Security Deed to reflect the increased principal amount. The Note was renewed again on June 10, 2008 for yet a fourth extension. On March 7, 2011, the Security Deed was assigned to RES-GA, a special-purpose entity formed to exercise foreclosure rights.

After Ciuperca defaulted on the Note, RES-GA initiated foreclosure proceedings on the secured property in accordance with the power of sale authorized in the Security Deed. RES-GA did not provide notice pursuant to OCGA § 44-14-162.2 (a), because the loan file indicated that the subject loan was for commercial property. Prior to foreclosure, RES-GA’s appraisal valued the property at $330,000. The appraisal included only 9.25 of the approximately 12 total acres. The appraisal failed to include the roughly 2.5-acre commercial parcel of the property. Upon receipt of the appraisal, RES-GA verified that the address on the appraisal was correct, but overlooked the fact that the appraisal did not cover the full acreage of the property. RES-GA conducted the foreclosure sale on May 3, 2011, and knocked the property back to itself as the sole bidder for $363,000. RES-GA subsequently recorded a Deed Under Power, and petitioned to confirm the foreclosure sale pursuant to OCGA § 44-14-161.

Prior to the scheduled confirmation hearing, RES-GA filed a motion for an order providing for the resale of the property in accordance with OCGA § 44-14-161. The trial court initially denied RES-GA’s motion based on Ciuperca’s proffer that he was living in the residence located on the foreclosed property at the time he applied for and received the commercial loan. At the confirmation hearing, RES-GA provided evidence that Ciuperca did not list the subject property as his residence and indicated that the primary purpose of the loan was for business. RES-GA also presented evidence that it relied on a faulty appraisal in bidding on the property at the foreclosure sale.

Following the confirmation hearing, the trial court entered an order finding that the notice requirements of OCGA § 44-14-162.2 were not triggered in connection with the foreclosure proceedings, because RES-GA had good cause to believe that the defaulted upon loan was for commercial, rather than residential, property. The trial court further found that the appraisal RES-GArelied upon in bidding on the property failed to include the entire property at issue. Thus, the trial court found that there was good cause to believe that the property did not sell for fair market value, and ordered a resale pursuant to OCGA § 44-14-161 (c).

1. Ciuperca contends that the trial court erred in finding that the notice provisions of OCGA § 44-14-162.2 (2011) did not apply. We disagree.

OCGA § 44-14-162.2 (2011) provides in relevant part:

(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to.negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . .

Prior to July 1, 2012, OCGA § 44-14-162.3 (a) (2011) provided that the notice requirement of OCGA § 44-14-162.2 (a) applied only “to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.” See Ga. L. 2009, p. 614, § 2. Consequently, since the sale occurred prior to July 1, 2012 under the former statute, “to establish [a] debtor’s right to notice, the debtor [had to] be one who used the property as a residence at the time he acquired the status of debtor.” Ray v. Atkins, 205 Ga. App. 85, 88 (2) (421 SE2d 317) (1992).

Ciuperca acquired the status of debtor on April 16,2004, when he executed the Note and Security Deed, and the evidence supported the trial court’s finding that he was not using the subject property as his residence at that time. Notably, Ciuperca listed a different residential address, 6048 Grand Forest Court, Norcross, Georgia 30092, on his Commercial Loan Application, dated March 25, 2004. Ciuperca also listed Grand Forest Court as his address in a Loan Report, dated April 14, 2004; a Boarding Data Sheet, dated April 15, 2004; the original Note, Security Deed and Assignment of Rents documents, dated April 16, 2004; and the first of five Disbursement Requests, dated April 16, 2004. Additionally, the Real Estate Compliance Checklist stated that the loan was not secured by a mortgage on a home or any other type of dwelling which Ciuperca was using or expected to use as his principal residence.

Based on the foregoing, we find competent evidence in the record showing that the property was not used as Ciuperca’s dwelling place at the pertinent time. Therefore, the trial court was authorized to find that the notice provisions of OCGA § 44-14-162.2 (a) (2011) did not apply. See Funderburke v. Kellet, 257 Ga. 822, 824 (2) (364 SE2d 845) (1988); see also Ray, supra, 205 Ga. App. at 88-89 (2).

2. Ciuperca contends that the trial court erred in allowing a resale of the secured property without any showing by RES-GA of good cause, and in failing to specify what evidence it relied on when invoking the good cause provisions under OCGA § 44-14-161 (c). We disagree.

OCGA § 44-14-161 sets out the process for obtaining an order of confirmation and approval following a foreclosure sale under powers contained in security deeds, mortgages or other lien contracts, including the requirement of evidence showing that the property sold for its true market value. OCGA § 44-14-161 pertinently provides:

(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

Decided November 29, 2012

Richard D. C. Schrade, Jr., for appellant.

Hartman, Simons, Spielman & Wood, Samuel R. Arden, for appellee.

OCGA § 44-14-161 (c) vests the trial court “with considerable discretion in determining whether to order a resale. The statute does not define what constitutes ‘good cause’ and does not require evidence of bad faith or negligence.” (Citations and punctuation omitted.) Greg A. Becker Enterprises, supra, 314 Ga. App. at 723 (1). “[0]n appeal, we will not disturb that exercise of discretion unless it is clearly, patently and manifestly abused.” McDowell v. Regions Bank, 311 Ga. App. 600, 600-601 (716 SE2d 638) (2001).

The record in this case supports the trial court’s finding that good cause existed to believe that the property did not sell for true market value, because RES-GA’s bid at the foreclosure sale was based on an appraisal that did not include the entire land mass or full extent of the property at issue. Based on this clear omission in the appraisal, the trial court was authorized to find that the property did not sell for fair market value at the foreclosure sale. See The Village at Lake Lanier v. State Bank and Trust Co., 314 Ga. App. 498, 500 (1) (b) (724 SE2d 806) (2012) (trial court was authorized to order a resale since creditor acted in good faith by having property appraised prior to sale and the failure to sell for fair market value was not due to any intentional act); see also McDowell, supra, 311 Ga. App. at 600.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Ciuperca presented evidence based on an independent appraisal that the subject property was worth $585,000.

       OCGA § 44-14-162.3 was subsequently amended effective July 1, 2012, to delete former subsection (a). Ga. L. 2012, p. 1079, § 1.


author: Boggs, Judge.

text:
    A12A0807.
    TALIFERO v. THE STATE.
    (734 SE2d 61)
   Boggs, Judge.

A jury found Kendrick Talifero guilty on three counts of aggravated assault and three counts of possession of a firearm during the commission of a crime. Talifero appeals, challenging the sufficiency of the evidence, the trial court’s ruling on the admission of a similar transaction, and the denial of his motion for mistrial. We hold that the trial court erred in allowing the similar transaction and therefore reverse Talifero’s convictions. Because the evidence was otherwise sufficient, the State is authorized to retry him.

1. In two enumerations, Talifero contends that the evidence was insufficient to sustain his convictions. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys the presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We do not weigh the evidence nor determine witness credibility, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

So construed, the evidence showed that in early 2007, two men telephoned John Chisholm to purchase $25 worth of marijuana. When Chisholm arrived at a gas station to make the sale, the men “basically just ripped [Chisholm] off and drove off with the marijuana.” A few weeks later, the two men were at a gas station pump when Chisholm pulled up to the other side of the pump with Talifero in the front passenger’s seat. When Chisholm confronted the men about taking the marijuana without paying, the men apologized to Chisholm. There were “no harsh words or loud words” during the conversation, and Chisholm made no threats.

At some point, Talifero and Chisholm switched seats, and when the men left, Talifero and Chisholm followed them. When the two men, along with another companion, parked in front of a friend’s home, Talifero and Chisholm stopped behind them. Chisholm yelled “you owe me money . . . give me 25 bucks.” One of the men told Chisholm, “I can pay you when I get paid,” and Chisholm replied “You’re going to pay me double what you owe me ... or triple.” After more “words were exchanged” between the men and Chisholm, Talifero told Chisholm “you better not let these guys get away, go ahead and handle your business, do what you got to do.” Chisholm then pulled out a gun, reached over Talifero, leaned out of the driver’s side window, and began shooting at the men, hitting one of them in the cheek. Talifero and Chisholm then drove away.

Police officers received a dispatch call advising them that “[a] person [was] shot,” and providing them a description of Chisholm’s vehicle. Officers located Talifero and Chisholm and followed them, noticing that they “passed another vehicle on a double yellow line ... seemed like they were attempting to get away . . . attempt to elude police.” Talifero and Chisholm finally stopped and were taken into custody. Inside the console and the glove compartment of the vehicle, officers found a total of five bags of marijuana. After Chisholm told the officers where to look for the gun, officers located it “off the passenger side of the roadway” where they first spotted the vehicle.

Chisholm, who was charged in the same indictment, pled guilty-just before the start of Talifero’s trial and testified as a witness for the State. He identified the gun found on the side of the road as his gun, and admitted that he “leaned and reached over” Talifero to fire his gun, but claimed that he pointed it down and did not intend “for any of the bullets to hit anybody. I meant to scare him off.” Chisholm stated further that he told Talifero to follow the men from the gas station and told him “let’s take off, get out of here” after he fired the shots. He admitted to having marijuana stored in his glove compartment but stated that Talifero “had no idea it was in there,” and claimed that Talifero had nothing to do with the shooting.

Talifero argues that he did not directly participate in the crimes or encourage or abet Chisholm in the commission of the crimes. OCGA § 16-2-20 provides that a person is a party to a crime if he directly commits the crime, intentionally causes some other person to commit the crime, intentionally aids or abets in the commission of the crime, or “[intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” And “[wjhile mere presence at the scene and approval of a crime not amounting to encouragement is insufficient to authorize [a] conviction as a party to a crime under OCGA § 16-2-20 [(b)] (4), criminal intent may be inferred from conduct before, during, and after the commission of the crime.” (Citations and punctuation omitted.) Simpson v. State, 265 Ga. 665, 665-666 (461 SE2d 210) (1995).

Based on the evidence that Talifero drove and deliberately followed the men and pulled in behind their vehicle, intentionally encouraged Chisholm by telling him “you better not let these guys get away, go ahead and handle your business, do what you got to do,” and that he fled with Chisholm after the shooting, the jury was authorized to conclude that he was a party to the crimes of aggravated assault and possession of a firearm during the commission of a crime. See Parks v. State, 272 Ga. 353, 354-355 (529 SE2d 127) (2000); Simpson, supra, 265 Ga. at 665-666; see also Clark v. State, 311 Ga. App. 58, 61 (714 SE2d 736) (2011) (where party committed aggravated assault and possession of a firearm during commission of felony, accomplice concerned in commission of those crimes under OCGA § 16-2-20 is likewise guilty of both crimes); Johnson v. State, 299 Ga. App. 706, 710 (1) (d) (683 SE2d 659) (2009) (same).

2. Talifero argues that the trial court erred in admitting evidence surrounding his 2005 arrest and subsequent guilty plea to possession of marijuana and carrying a concealed weapon.

“In order to protect an accused and to insure him of a fair and impartial trial before an unbiased jury, we have long embraced the fundamental principle that the general character of an accused is inadmissible unless the accused chooses to put his character in issue.” (Citation omitted.) Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991). And

[a]s a corollary of this fundamental principle, we have also long adhered to the rule that where an accused is on trial for the commission of a crime[,] proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. The rationale for the latter rule is that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.

(Citation and punctuation omitted.) Id. The State must show that (1) it seeks to introduce evidence of the independent offense or act, not to raise an improper inference on the accused’s character, but for some appropriate purpose that is an exception to the general rule of inadmissibility; (2) there is sufficient evidence to establish that the accused committed the independent offense; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. McMullen v. State, 316 Ga. App. 684, 691 (2) (730 SE2d 151) (2012).

And depending upon the reason for which the independent crime is offered, the State may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.

(Citations, punctuation and footnotes omitted.) Id. When we review the trial court’s findings as to whether the State satisfied these three prongs, we apply the clearly erroneous standard, and the “decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.” (Citation omitted.) Flowers v. State, 269 Ga. App. 443, 444 (1) (604 SE2d 285) (2004).

The similar transaction witness, Officer Dahlquist, testified that on December 12, 2005, he made a traffic stop of a vehicle in which Talifero was a front seat passenger. The officer smelled the odor of “green or non-burned marijuana” as he asked for Talifero’s identification. After the officer placed the driver under arrest for two bags of marijuana found on his person while being frisked, he approached Talifero who was still sitting in the vehicle. Talifero admitted to the officer that he had a gun which was concealed under his left leg. He was then taken into custody, and officers found $845 on his person and a bag of marijuana in his shoe. Officers also found additional marijuana in the vehicle. Talifero was charged with possession of marijuana with intent to distribute, carrying a concealed weapon, possession of a firearm during the commission of a crime, and failure to use a safety belt, but pled guilty to carrying a concealed weapon and the lesser included offense of possession of marijuana.

Talifero argues that there is no similarity between the 2005 incident and the crimes charged here. He contends that the present case involves a “crime of violence” and that the 2005 incident involved “no violence and no shooting.” The trial court ruled that the similar transaction could be considered to show course of conduct, modus operandi, and state of mind, and at trial instructed the jury accordingly.

The State argues that the prior conviction was submitted “as similar to marijuana and weapon possession charges” to show Talifero’s state of mind, course of conduct, and modus operandi. The similarity between a prior charge or guilty plea resulting in a conviction and current charges against a defendant cannot alone satisfy the requirements for the admission of similar transaction evidence. Indeed, the State’s introduction of a copy of the prior conviction alone is insufficient. Williams, supra, 261 Ga. at 642 (2) (c).

[T]he [S]tate must do more than merely introduce a certified copy of a conviction and/or indictment into evidence. The [S]tate must present the trier of fact with evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.

(Citation omitted.) Id. While the copy of a previous conviction may be enough to establish that a defendant committed the independent offense, it does not establish similarity or connection. Id. at 643 (2) (d). We must look to the evidence presented by the State concerning the prior act, especially here where the trial court admitted the prior act for the purposes of showing state of mind, modus operandi, and course of conduct. See, e.g., Carver v. State, 248 Ga. App. 718, 719 (2) (548 SE2d 629) (2001) (circumstances surrounding prior and current drug possession offenses so similar that court did not err in admitting prior crime to show identity, intent, motive, modus operandi, plan, scheme and course of conduct; in both prior and current drug convictions, defendant was in his home with his wife and a third person when a gun, drugs, drug residue, a spoon, and other drug paraphernalia were found in defendant’s master bedroom); Okongwu v. State, 220 Ga. App. 59, 63-64 (4) (467 SE2d 368) (1996) (prior incident relevant to show bent of mind and common scheme where in each incident defendant concealed or fled and discarded amount of cocaine consistent with distribution).

The only similarity in each transaction here is that in each instance Talifero was in a vehicle in which marijuana and a gun were present. The evidence concerning the concealment of a gun in the prior act has no similarity to the crimes here. “And although similarity is not ‘the only factor, nor is it necessarily the controlling factor’ that governs admissibility, the ultimate issue is whether the evidence of other crimes has ‘relevance to the issues in the trial of the case.’ ” (Citation, punctuation and footnote omitted.) McMullen, supra, 316 Ga. App. at 692 (2).

The prior act of concealing a weapon not only has no significant similarity to being a party to the crimes of aggravated assault and possession of a firearm during the commission of a felony by encouraging another person to act, it has no relevance to those crimes. In the present case, Talifero encouraged Chisholm to “go ahead and handle your business, do what you got to do,” after which Chisholm shot at the men. In the prior act, Talifero admitted to police during a traffic stop that he was carrying his own concealed weapon as a passenger in the vehicle in the company of another individual; there was no confrontation and no assault. There is simply no logical connection between the two crimes. See id. And although the State argues that the prior act did not raise an improper inference as to Talifero’s character, we find that it “is exactly the type of inadmissible character evidence that the safeguards . . . are designed to protect against.” (Citations, punctuation and footnote omitted.) Id.

While there is sufficient evidence to establish that Talifero committed the independent act, there is insufficient “connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” See McMullen, supra, 316 Ga. App. at 691 (2) (prior act of ingesting methamphetamine that resulted in conviction for possession with intent to distribute not relevant to whether defendant was under the influence of combination of drugs to the extent it rendered her a less safe driver); King v. State, 230 Ga. App. 301, 303-304 (1) (496 SE2d 312) (1998) (prior acts of selling drugs to an undercover officer not significantly similar to charge of possession of methamphetamine in bodily fluid); compare Cochran v. State, 276 Ga. 283, 286 (4) (576 SE2d 867) (2003) (prior act of pulling a gun on victim after victim made a joke about defendant was sufficiently similar to evidence that he pulled a gun on another person after the person embarrassed him). Based upon the particular facts of this case, the trial court abused its discretion in ruling that this evidence was admissible. See McMullen, supra.

Having found error in the admission of the similar transaction, we must now consider whether the error was harmless. The evidence supporting Talifero’s aggravated assault convictions as a party to the crime was not overwhelming. While Talifero’s flight from the crime scene and the pursuing officers provided circumstantial evidence of his guilty intent, see Boggs v. State, 304 Ga. App. 698, 701 (1) (697 SE2d 843) (2010), only one of the three aggravated assault victims testified that he heard Talifero tell Chisholm: “you better not let these guys get away, go ahead and handle your business, do what you got to do.” When asked specifically about Talifero’s involvement, one of the other two victims testified that he “didn’t hear [Talifero] say anything.” The third victim acknowledged that Talifero “never provided any encouragement,” and stated that Talifero “didn’t say nothing.” Given that evidence of the prior crimes is “highly and inherently prejudicial,” see McMullen, supra, and the evidence in this case is not overwhelming, we must reverse Talifero’s convictions. See McMullen, supra.

Decided November 6, 2012

Reconsideration denied November 30, 2012

Gina A. Smalley, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, Amelia G. Pray, Benjamin M. First, D. Victor Reynolds, Assistant District Attorneys, for appellee.

3. Talifero’s remaining enumeration is unlikely to recur upon a retrial and is rendered moot by our holding in Division 2 reversing his convictions.

Judgment reversed.

Doyle, P. J., concurs. Andrews, J., concurs in judgment only.

       Talifero was acquitted on a charge of possession of marijuana with intent to distribute.

       The State argues that Talifero waived this issue. Prior to the officer’s testimony, the State tendered Talifero’s guilty plea to possession of marijuana and carrying a concealed weapon, arising out of his 2005 arrest. When the State tendered Talifero’s plea, trial counsel, without question from the trial court, stated: “I don’t have an objection to that.” Therefore, to the extent Talifero complains of the admission of his plea, he affirmatively waived any objection. See Lightsey v. State, 316 Ga. App. 573, 574 (730 SE2d 67) (2012) (“We have no rule in this state which prohibits counsel from affirmatively waiving or withdrawing an objection previously made. [Cits.]”); Williams v. State, 314 Ga. App. 840, 844 (4) (a) (726 SE2d 66) (2012) (same). Moreover, Talifero’s counsel tendered the sentencing sheet on the plea to demonstrate that Talifero pled guilty to misdemeanors and was not a convicted felon as a result of the plea. But although Talifero waived any objection to the admission of his plea, he did not waive any objection to the officer’s testimony concerning the prior act and was not required to object to preserve his claim that the evidence should have been excluded. See Whitehead v. State, 287 Ga. 242, 248-249 (2) (695 SE2d 255) (2010) (abandoning repetitive objection rule for similar transaction evidence; just as in the case of motions in limine and motions to suppress where a pretrial ruling from the court has been obtained, objection does not have to be repeated at trial).

       We note that the new Evidence Code eliminates the “bent of mind” and “course of conduct” exceptions to similar transaction evidence. SeeOCGA § 24-4-404 (b), effective January 1,2013.

       And in any case, the weapon possession charge here was possession of a firearm during the commission of a crime, as opposed to the prior act which involved carrying a concealed weapon. We fail to see how the prior act would be admissible as to only the “marijuana and weapon possession charges” when the three counts of possession of a firearm during the commission of a crime were premised upon the commission of three counts of aggravated assault.

       This witness made no such statement concerning Talifero in his written statements to police.

       While the evidence in this case is not overwhelming, it is sufficient to sustain Talifero’s convictions, and the State is authorized to retry him without violating the constitutional bar against double jeopardy. See McMullen, supra; see also Nance v. State, 274 Ga. 311, 311-312 (553 SE2d 794) (2001) (retrial is not barred where reversal of conviction results from trial error rather than evidence sufficiency).


author: Barnes, Presiding Judge.

text:
    A12A0816.
    RICHARDSON v. GILBERT.
    (733 SE2d 783)
   Barnes, Presiding Judge.

We granted the defendant’s application for interlocutory appeal of the trial court’s order granting the plaintiff’s motion to transfer venue in this wrongful death medical malpractice case. Because the defendant waived her venue defense, the plaintiff could not require the trial court to transfer the case to the county where the defendant resided when the suit was filed. Accordingly, we reverse.

Cherryl Gilbert filed this action against 11 defendants in Fulton County in November 2003. In 2008, the trial court granted summary judgment to Tenet Healthcare Corporation, the only defendant that was a “resident” of Fulton County for venue purposes. On January 12, 2009, the Fulton County court granted the remaining defendants’ motion to transfer venue to Spalding County pursuant to OCGA § 9-10-31 (d).

In August 2009, the Spalding County court entered a discovery scheduling order to which the parties consented, which directed Gilbert to identify her expert trial witnesses by November 2009 and make them available for deposition before January 15, 2010. In November 2009, the trial court granted Gilbert’s motion to dismiss three defendants without prejudice, leaving the action pending against Tenet HealthSystem Spalding, Inc., Spalding Regional Hospital, and Richardson. In April 2010, Richardson moved to dismiss the complaint or in the alternative compel Gilbert to identify her standard of care experts, and two weeks later, the trial court granted Gilbert’s motion to dismiss without prejudice Tenet HealthSystem Spalding, Inc. and Spalding Regional Hospital. This left Richardson as the only remaining defendant. In mid-May 2010, Gilbert responded to the motion to dismiss and moved for additional time to find a new expert.

In July 2010, Gilbert moved to transfer venue to Clayton County, arguing that venue was proper only in that county because that is where Richardson resided when the suit was filed in 2003 and she was the only remaining defendant. Richardson opposed the motion, specifically waiving her venue defenses and arguing that she and Gilbert currently lived in Spalding County, all of the professional treatment at issue had occurred in Spalding County, Gilbert voluntarily dismissed the other two Spalding County defendants, and Gilbert did not seek to transfer the case to Clayton County until three months after Richardson filed her motion to dismiss or compel.

In October 2010, the trial court held a hearing on Gilbert’s motion to transfer the case to Clayton County, during which Richardson’s counsel again stated that Richardson submitted to venue in Spalding County. The court held another hearing in September 2011 on the same issue. In an order issued on October 4, 2011, the court granted Gilbert’s motion to transfer, holding, “It appears, following dismissal of Spalding County defendants, that venue is no longer proper in Spalding County, and that venue is proper in Clayton County.”

Richardson argues on appeal that Gilbert lacked standing to object to venue or jurisdiction over Richardson, who had waived those defenses. Gilbert responds that venue was proper in the county where Richardson lived when suit was filed. While venue would be proper in Clayton County because Richardson lived there when Gilbert filed suit in November 2003, our law does not give Gilbert the power to require the court to transfer the case to Clayton County.

A defendant has the right to be tried in her county of residence, Ga. Const. 1983, Art. VI, Sec. II, Par. VI, and because service within a reasonable time relates back to the original date of the filing, the defendant’s residence when the action was filed is where venue lies. Franek v. Ray, 239 Ga. 282, 285-286 (236 SE2d 629) (1977) (venue proper in DeKalb County where defendant lived when custody modification suit filed, even though he moved to Texas before he was served). “If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.” OCGA § 9-10-31 (d). However, if the defendants who reside where an action is pending are discharged from liability, leaving only a nonresident defendant, the nonresident may require the court to transfer the case to a county with proper venue. Id.

In this case, the plaintiff sought to require the court to transfer venue to the county of the defendant’s residence at the time suit was filed. While venue would be proper in that county, “[pjersonal jurisdiction and venue are defenses for the defendant to raise, and may be waived, even though properly preserved in the pleadings.” (Footnotes omitted.) Exum v. Melton, 244 Ga. App. 775, 776 (1) (536 SE2d 786) (2000) (trial court retained jurisdiction to rule on nonresident defendant’s motion to dismiss for insufficient service of process even though plaintiffs had dismissed resident defendant). A plaintiff lacks standing to object to jurisdiction or venue over a nonresident defendant who waived his venue defenses. Fletcher v. Hatcher, 278 Ga. App. 91, 92 (1) (628 SE2d 169) (2006). Richardson waived her venue defenses, and therefore the trial court erred in granting Gilbert’s motion to transfer the case to Clayton County.

Decided October 30, 2012

Reconsideration dismissed November 30, 2012.

Hall, Booth, Smith & Slover, Jason P. King, for appellant.

Joseph H. King, Jr., for appellee.

Judgment reversed.

Adams and McFadden, JJ., concur.

       This court previously addressed the sufficiency of Gilbert’s expert affidavits and the legal standard used to determine her diligence in serving the defendants in Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895 (627 SE2d 821) (2006).

       If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.
      If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.
      OCGA § 9-10-31 (d).


author: Adams, Judge.

text:
    A12A1391.
    ANDRADE v. THE STATE.
    (733 SE2d 474)
   Adams, Judge.

Eliborio Andrade was tried by a jury and convicted of participating in criminal street gang activity and affray. He was sentenced to fifteen years, five in custody and the remainder on probation. On appeal, he claims that the indictment was void and that his trial counsel was ineffective for failing to have the jury instructed on the defense of habitation. Because the indictment claim is not properly before us and the habitation defense was not applicable, we affirm.

The evidence, viewed in the light most favorable to the verdict, showed that on June 12, 2010, Wilson Almendares, a gang member, was at his cousin Vidal Romero’s apartment, where they had been drinking all night. When he began to drive home at approximately 2:00 the next morning, a car full of men whom he believed belonged to a rival gang followed him. He then went back to Romero’s apartment and told him what had happened. They got into Romero’s van along with Jairo Quintana and headed to Atlanta Street, where he believed the rival gang members had gone. On the way, he called Andrade and told him what they were doing. They picked up Andrade and Juan Villanueva, who were also gang members according to Almendares. At about 5:00 a.m., they decided to head home.

Romero drove the group back toward his apartment, but before they could get there, another car pulled in front of them and blocked their path. Romero recognized the car’s driver, Daniel Adame, and got out to tell him they did not want any trouble. By that time, everyone had exited the vehicles and had begun fighting. According to Romero, who did not participate in the fighting, the groups attacked each other; no one group was the aggressor. After the fighting began, Almendares was cut in the face with a broken glass bottle, and rocks were thrown at Romero’s vehicle. In a statement to Gainesville police, Andrade stated that during the fight, he exchanged blows with Adame and a guy nicknamed Boogie, both members of the rival gang. Andrade said that he retreated to the van after being hit by a rock.

After a few minutes of fighting, Villanueva, Andrade and Almendares got back into Romero’s van to leave. While trying to drive away, they hit the car blocking their path and ran over Adame and Boogie. Adame died from his injuries.

Andrade was charged with participating in criminal street gang activity and affray for his involvement in the fight. He was not charged for Adame’s death.

1. Andrade asserts for the first time on appeal that the indictment is void because it fails to state every essential element of the crime of participation in criminal street gang activity. Specifically, he claims that the indictment lacks a necessary allegation — by committing the act of affray, he intended to further street gang activity.

A general demurrer challenging the validity of the indictment may be raised at any time, but not in any proceeding. Moore v. State, 246 Ga. App. 163, 165 (3) (539 SE2d 851) (2000).

After a defendant has been convicted under the indictment and judgment has been entered on the conviction, the indictment may be challenged in a motion in arrest of judgment, which “asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime.”

Fleming v. State, 276 Ga. App. 491, 494-495 (2) (623 SE2d 696) (2005). Andrade’s argument that the indictment failed to allege the essential elements of participation in criminal street gang activity would have been cognizable as a motion in arrest of judgment. But a motion in arrest of judgment must be filed within the same term of court in which the judgment was entered, and therefore, Andrade’s motion is untimely. Jones v. State, 290 Ga. App. 490, 493 (1) (659 SE2d 875) (2008).

“[Wjhen a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding.” McKay v. State, 234 Ga. App. 556, 560 (2) (507 SE2d 484) (1998). Andrade’s claim, however, cannot be construed as a habeas petition because it was not filed in the county where he is incarcerated, but the county where he was convicted and sentenced. Grogan v. State, 297 Ga. App. 251, 253 (676 SE2d 764) (2009). “The issue of whether the indictment underlying appellant’s conviction was void must await determination until such time as appellant avails himself of the proper procedures for attacking the conviction on that basis.” (Citation and punctuation omitted.) McKay, 234 Ga. App. at 560.

2. Andrade claims that his trial counsel was ineffective for failing to insist that the trial court charge the jury on the defense of habitation. Although trial counsel submitted a request to charge on habitation, he conceded during the charge conference that it was not warranted by the evidence. At the motion for new trial hearing, trial counsel confirmed his position that the facts did not justify the charge.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Philpot v. State, 311 Ga. App. 486, 488-489 (3) (716 SE2d 551) (2011). On appeal of an ineffective assistance claim, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id. at 489 (3).

Andrade argues that his trial counsel’s performance was objectively unreasonable because the habitation charge was justified by the evidence and he should not have abandoned it. The statute at issue provides in pertinent part that

[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation.

OCGA § 16-3-23. A habitation is defined to include a motor vehicle. OCGA§ 16-3-24.1.

Andrade argues that he was entitled to the charge because (1) the forcible stop of the van was an attack upon the van and (2) the approach of rival gang members allowed him to use reasonable force to prevent an attack on the van. Although a “defendant is entitled to a jury charge on a subject as long as there is slight evidence to support it,” Lewis v. State, 292 Ga. App. 257, 264 (2) (663 SE2d 721) (2008), there was no evidence to support the habitation charge here.

Even assuming that by stopping their car in front of the van, without making any contact, the rival gang members perpetrated an “attack” on the van as contemplated by OCGA § 16-3-23, the facts do not justify the charge. Timing is crucial to the defense of habitation. See Coleman v. State, 286 Ga. 291, 298 (6) (687 SE2d 427) (2009). Where there are no threats upon the vehicle at the time the defendant uses force against another, the defense of habitation is not available. Wike v. State, 262 Ga. App. 444, 445 (585 SE2d 742) (2003). The evidence showed that Andrade exited the van and began fighting after the van had stopped, at a time when no attack was even arguably being made on the van.

Andrade also asserts that the approach of rival gang members entitled him to use reasonable force to prevent an attack upon the van. Because there was no evidence that those gang members were attempting to enter or attack the van at the time Andrade began fighting, the habitation defense was not available. Philpot, 311 Ga. App. at 489. Once the van stopped, both groups got out of their vehicles and began fighting. The rocks were thrown at the van and Andrade’s group after the fighting began, not before. Andrade’s use of force was therefore not justified by any reasonable belief that it was necessary to prevent an attack upon or entry into the van. See Adcock v. State, 317 Ga. App. 468 (1) (731 SE2d 365) (2012) (defendant must reasonably believe that force is necessary to prevent or terminate unlawful entry into or attack upon a motor vehicle).

Because the trial testimony did not provide the slight evidence necessary to support an instruction on the defense of habitation, Andrade’s counsel did not perform deficiently by failing to insist that it be given. See Coleman, 286 Ga. at 298 (6) (a); Mays v. State, 317 Ga. App. 24, 25 (1) (730 SE2d 651) (2012); Philpot, 311 Ga. App. at 489. Thus, “the trial court did not err when it determined that [Andrade] had not carried his burden of proof on his claim of ineffective assistance of counsel.” Coleman, 286 Ga. at 298 (6) (a).

Judgment affirmed.

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

Decided October 24, 2012

Reconsideration denied November 30, 2012

Steven E. Phillips, for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

       The remainder of the statute addresses the use of force intended or likely to cause death or great bodily harm and is not at issue here.


text:
    A12A1432, A12A1433.
    MEADOW SPRINGS RECOVERY, LLC et al. v. WOFFORD et al.; and vice versa.
    (734 SE2d 100)
   Boggs, Judge.

These appeals arise out of a failed real estate venture and the resulting protracted litigation between numerous parties, including the filing of a lis pendens. In this separate claim by an assignee against the law firm that filed the lis pendens, we conclude that the trial court correctly found preemption under the exclusivity provision of the abusive litigation statute, OCGA § 51-7-85, because the lawsuit seeks damages solely for the conduct of counsel in pursuing litigation on behalf of their clients. We therefore affirm the grant of summary judgment in favor of appellees and dismiss the cross-appeal as moot.

The facts of the underlying dispute have been discussed extensively in previous appeals. The relevant facts with respect to the appeal before us are as follows. Nearly a decade ago, on August 6, 2003, the firm of Alston & Bird, through its partner M. Russell Wofford, Jr., filed a complaint on behalf of IH Riverdale and Geoffrey Nolan, claiming breach of their rights to exercise an option on real property in Clayton County owned by Meadow Springs, LLC. The following day, the firm filed a notice of lis pendens in Clayton County, giving notice of the action and stating that it involved the described real property, as to which plaintiffs sought specific performance of an option agreement and imposition of a constructive trust. On the same day, the firm delivered a letter to Regions Bank, which had approved a development loan on the property, enclosing the complaint and a copy of the lis pendens.

After IH and Nolan delivered a copy of the complaint and notice of lis pendens to Regions Bank, the bank elected not to close the development loan with [Meadow Springs LLC]. Although IH and Nolan later cancelled their notice of lis pendens and withdrew their claims to any direct interest in the . . . property as part of an agreement with the [other] defendants to mediate their dispute, mediation efforts failed. And [Meadow Springs LLC] defaulted on the construction loan and lost its equity in the property due to foreclosure of the deed securing the construction loan.

Meadow Springs, LLC v. IH Riverdale, LLC, 296 Ga. App. 551, 553 (675 SE2d 290) (2009), rev’d, 286 Ga. 701 (690 SE2d 842) (2010). On June 24, 2004, A&B withdrew from representation of Nolan and IH Riverdale.

In 2005, Meadow Springs, LLC filed suit against Nolan and IH Riverdale, seeking damages for slander of title and tortious interference with business and contractual relations arising out of Nolan and IH Riverdale’s lis pendens. Meadow Springs, supra, 296 Ga. App. at 552-553. Summary judgment was granted to Nolan and IH Riverdale on the basis that the filing of the lis pendens was proper, and this court affirmed. Id. at 555 (1). The Supreme Court of Georgia reversed, however, holding that the right to invest in a real estate development through a limited liability company did not “involve” real estate within the meaning of the lis pendens statute because it did not assert a claim for relief against the real estate itself. Meadow Springs, supra, 286 Ga. at 704-705. As the trial court noted, several of the claims in that action remain pending, including Meadow Springs, LLC’s claims against Nolan and IH Riverdale for slander of title and tortious interference.

In 2011, Meadow Springs Recovery, LLC (“MSR”), as the assignee of various parties to the underlying dispute, including Meadow Springs, LLC, brought this action against A&B and two of its partners (collectively, “A&B”) for the filing and delivery of the lis pendens during their representation of Nolan and IH Riverdale. The complaint asserts claims for slander of title, tortious interference with business and contractual relationships, and bad faith penalties and attorney fees. A&B answered and counterclaimed, seeking a declaratory judgment with regard to the validity of the assignment of the claims to Meadow Springs. A&B moved to transfer the case to superior court on the basis of that court’s exclusive jurisdiction over a claim for declaratory judgment. MSR opposed the motion and moved to dismiss the counterclaims. The case was transferred to the Business Case Division of the Superior Court of Fulton County, and A&B filed motions for summary judgment based on preemption by OCGA § 51-7-85 and the applicable statute of limitation. MSR moved for partial summary judgment on the issue of slander of title.

In a comprehensive and well-crafted order, the trial court ruled on all the pending motions before it, while recognizing that not all of its rulings were necessary to dispose of the litigation. It granted MSR’s motion to dismiss the counterclaim for failure to state a claim for declaratory relief, granted A&B’s motion for summary judgment based on the preemptive effect of OCGA § 51-7-85, and denied both A&B’s motion for summary judgment based on the statute of limitation and MSR’s motion for partial summary judgment. This appeal followed.

Case No. A12A1432

1. In its appeal, MSR first contends that the trial court erred in granting summary judgment to A&B on the issue of preemption. Georgia’s abusive litigation statute, OCGA § 51-7-80 et seq., provides:

On and after April 3, 1989, no claim other than as provided in this article or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for the torts of malicious use of civil proceedings, malicious abuse of civil process, nor abusive litigation, provided that claims filed prior to such date shall not be affected. This article is the exclusive remedy for abusive litigation.

(Emphasis supplied.) OCGA § 51-7-85. We therefore consider whether MSR’s claims against A&B fall within the scope of the abusive litigation statute: “Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification.” OCGA § 51-7-81.

This court has held that we look to the substance and not the style of a particular claim to determine whether it amounts to a claim for abusive litigation. In Slone v. Myers, 288 Ga. App. 8, 11 (653 SE2d 323) (2007), overruled on other grounds, Reeves v. Upson Regional Med. Center, 315 Ga. App. 582 (726 SE2d 544) (2012), the appellants filed an action alleging civil RICO, conspiracy, perjury, forgery and theft in connection with an action brought against them by appellees. “The wrongful acts which they allege, however, all occurred during litigation of the [underlying] action.” Id. at 10 (2). On that basis, this court affirmed the trial court’s dismissal of the action for failure to provide the required notice under OCGA § 51-7-84 (a), observing: “This is the essence of an abusive litigation claim. Because the abusive litigation statute provides the exclusive remedy for claims of abusive litigation, we agree with the superior court that [appellants] may not avoid the requirements of the statute merely by characterizing their claims arising from the allegedly abusive lawsuit as” some other cause of action. (Citations, punctuation and footnotes omitted.) Id. at 11 (2).

Similarly, MSR may not avoid the application of the abusive litigation statutes by characterizing claims founded in “the initiation, continuation, or procurement of civil proceedings” as tortious interference or slander of title. Indeed, we have previously held that, “as a matter of law, a claim for tortious interference with contractual relations cannot be predicated upon an allegedly improper filing of a lawsuit.” (Citations and punctuation omitted.) Phillips v. MacDougald, 219 Ga. App. 152, 155 (2) (g) (464 SE2d 390) (1995). In Phillips, we noted that the abusive litigation statutes strike a balance between the competing public interests of preserving free access to the court and preventing “serious abuses of lawsuit filing.” Id. at 156 (2) (g). This balance is intended to prevent the “proliferation of unnecessary causes of action for the alleged improper filing of lawsuits [which] would have a chilling effect on the exercise by citizens of their right of access to the courts.” Id. See also Nairon v. Land, 242 Ga. App. 259, 261 (2) (529 SE2d 390) (2000) (plaintiff precluded from filing claims of infliction of emotional distress as remedy for abusive litigation).

Both here and below, MSR relies upon O’Neal v. Home Town Bank &c., 237 Ga. App. 325 (514 SE2d 669) (1999), to argue that A&B’s delivery of the complaint and lis pendens to an interested third party is not within the scope of the abusive litigation statute. In O’Neal, a former bank employee filed an action asserting various claims against the bank. Id. at 325. Some weeks after suit was filed and the bank had answered, the bank president sent a letter to the 900 shareholders of the bank, quoting portions of the bank’s answer to the complaint. Id. at 331 (8). O’Neal contended that those quotations were defamatory, and he amended his complaint to assert claims for libel and slander. Id. The bank sought summary judgment as to, inter alia, O’Neal’s defamation claims, seeking to rely upon the absolute privilege established in OCGA § 51-5-8 for statements made in legal pleadings. Id.

In that context, we observed:

[A]s a control on the misuse of absolute privilege, the law allows suits for “malicious use of civil process, malicious abuse of legal process, or malicious prosecution,” now all subsumed in OCGA § 51-7-81. This section applies only to “any person who takes an active part in the initiation, continuation, or procurement of civil proceedings,” not to a person who publishes a libelous letter.

(Citations and footnotes omitted.) O’Neal, supra at 333 (8). In the case before us, A&B, as attorneys representing their clients, were “tak[ing] an active part in the initiation [and] continuation ... of civil proceedings” both in filing the lis pendens and in delivering a copy to a third party with an interest in the subject property. The trial court correctly distinguished this limited communication by attorneys, as part of their representation of their clients, from the action of an individual who, while “not a direct participant in the lawsuit at issue, sent a letter to 900 shareholders, which was unrelated to the advancement of litigation.”

For these reasons, the trial court did not err in holding that MSR’s claims against A&B fall within the purview of the abusive litigation statute, should have been brought under that statute, and thus are preempted by the exclusivity provisions of OCGA § 51-7-85. We therefore affirm the grant of summary judgment in favor of A&B.

Decided November 7, 2012

Reconsideration denied November 30, 2012

Schreeder, Wheeler & Flint, David H. Flint, Michelle R. Kraynak, Andrew J. Lavoie, for appellants.

Kilpatrick, Townsend & Stockton, Alexander S. Clay, Stephen E. Hudson, Robert E. Buckley, for appellees.

2. Because of our holding in Division 1, we need not reach MSR’s remaining enumeration of error.

Case No. A12A1433

3. Because Case No. A12A1432 is resolved in favor of A&B on the main claim, Case No. A12A1433 is dismissed as moot.

Judgment affirmed in Case No. A12A1432. Appeal dismissed as moot in Case No. A12A1433.

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

       See IH Riverdale, LLC v. McChesney Capital Partners, LLC, 280 Ga. App. 9 (633 SE2d 382) (2006); Meadow Springs, LLC v. IH Riverdale, LLC, 296 Ga. App. 551 (675 SE2d 290) (2009), rev’d, 286 Ga. 701 (690 SE2d 842) (2010); Meadow Springs, LLC v. IH Riverdale, LLC, 307 Ga. App. 72 (704 SE2d 239) (2010); MeChesney v. IH Riverdale, LLC, 307 Ga. App. 77 (704 SE2d 244) (2010).

       The Supreme Court of Georgia expressly declined to address the merits of the OCGA § 51-7-85 preemption defense asserted by Nolan and IH Riverdale. 286 Ga. at 705, n. 2. Here, we address that defense only as asserted by counsel with respect to actions taken during the course of litigation.

       We note that the trial court was well aware of the underlying issues here, as related litigation was assigned to the same trial judge and remains pending in part.

       In its brief in opposition to A&B’s motion to transfer this action to the Business Division of the Superior Court of Fulton County, MSR characterized its claims against A&B as “a case against attorneys alleging misconduct in the course of legal representation” and “based on actions taken by counsel during those underlying suits,” stating that “the merits of this lawsuit will, unlike the cases that gave rise to it, relate only to the propriety of certain actions taken by Defendants in litigating the prior cases.”

       MSR argues at some length the law of absolute and conditional privilege, as well as the statutory defense of withdrawal. But the issues of privilege or withdrawal are not before us, and cases addressing those issues do not control the scope of a cause of action for abusive litigation.