author: Barnes, Presiding Judge.

text:
    A14A1088.
    KOHLER et al. v. VAN PETEGHEM et al.
    (767 SE2d 775)
   Barnes, Presiding Judge.

This case involves a dispute between next-door neighbors that began with a drainage dispute but escalated to allegations of assault and battery and other intentional torts, including an allegation that the plaintiff husband intentionally spat on the face of the defendant wife during an argument. During the ensuing jury trial, the trial court directed a verdict in favor of the defendants on the plaintiffs’ claim brought under the Metropolitan River Protection Act (the “MRPA”), OCGA § 12-5-440 et seq. and in favor of the defendant wife on her battery counterclaim based on the spitting incident. The jury subsequently returned a verdict in favor of the defendants on all of the remaining claims and counterclaims, and the trial court entered judgment accordingly.

On appeal from the denial of their motion for a new trial, the plaintiffs argue that the trial court erred by directing a verdict in favor of the defendant wife on her battery counterclaim and in its charge to the jury on that counterclaim because the evidence was in dispute as to whether the spitting incident was intentional. The plaintiffs further argue that the trial court erred by excluding their expert from testifying at trial and by directing a verdict in favor of the defendants on the plaintiffs’ MRPA claim.

Because the evidence did not demand a finding that the spitting incident was intentional, we conclude that the trial court erred by directing a verdict to the defendant wife on her battery counterclaim. Consequently, we reverse the trial court’s grant of the defendant wife’s motion for a directed verdict on her battery counterclaim and remand for a new trial solely on that counterclaim. We affirm the judgment in all other respects.

The record reflects that Steven and Elizabeth Kohler live next door to Dirk and Mia Francesca Van Peteghem in the Grand Cascades Subdivision in Forsyth County. Both properties extend all the way to the Chattahoochee River, although the finished backyards do not extend that far. When it rains, culverts along the street carry water from several homes in the subdivision into a large drainage pipe that runs underground along the property line between the Kohlers’ and Van Peteghems’ properties. The drainage pipe ends in the woods behind the two properties and empties water there whenever it rains. The Van Peteghems’ property is at a higher elevation than the Kohlers’ property; indeed, the Kohlers’ property is at the lowest point in that area of the neighborhood. It is undisputed that there is a serious drainage problem in the back portion of the Kohlers’ property; the dispute between the parties concerns the cause of that problem.

On August 9, 2010, the Kohlers filed their complaint in the present action against the Van Peteghems, alleging that the Van Pet-eghems had performed backyard landscaping work that redirected the flow of water from their property onto the Kohlers’ property whenever it rained. According to the Kohlers, the redirected flow of water had caused extensive erosion and siltation problems. The Kohlers sought damages for public and private nuisance and for breach of a legal duty based on alleged violations of the MRPA, OCGA § 12-5-440 et seq.

On September 13, 2010, the Van Peteghems filed their answer, denying that their backyard landscaping work caused any redirection in the flow of water onto the Kohlers’ property. According to the Van Peteghems, the erosion and siltation problems on the Kohlers’ property preexisted the landscaping work and were the result of runoff from the drainage pipe and from the fact that the Kohlers’ property is downhill from the other properties in that area of the neighborhood. The Van Peteghems also asserted multiple intentional tort counterclaims, including trespass, nuisance, defamation, intentional infliction of emotional distress, invasion of privacy, assault, and battery, based on their allegation that the Kohlers had subjected them and their children to a long sequence of harassment as part of their dispute over the landscaping work.

On March 18, 2011, the Van Peteghems filed a motion to dismiss the Kohlers’ complaint as a sanction for their allegedly repeated failure to comply with discovery. On July 27, 2011, the trial court, after conducting a hearing, entered an order declining to dismiss the Kohlers’ complaint, but setting certain parameters for the parties’ conduct and instituting specific discovery deadlines (the “Discovery Order”). Among other things, the Discovery Order provided that except in emergency situations, the parties, other than through their attorneys, were henceforth prohibited from contacting third parties “for the purpose of making or investigating any complaint or alleged issue or condition on either of the properties at issue in this case or any party to this case.” The Discovery Order also required the Kohlers to identify any experts tobe usedattrialby July 30, 2011, and make them available for deposition by October 15, 2011.

The trial was specially set for the week of December 10, 2012. However, the Kohlers first identified Adam Hazell as a plaintiffs’ expert to be used at trial in their portion of the pretrial order served on the Van Peteghems on November 16, 2012, and the Kohlers did not provide any information about Mr. Hazell’s expected testimony to the Van Peteghems until December 8, 2012, two days before the first day scheduled for trial.

The Van Peteghems filed a motion in limine to exclude Mr. Hazell as an expert witness at trial. When the trial court heard the motion, the Kohlers informed the court that Mr. Hazell was a representative of the Georgia Mountains Regional Commission and would be offering testimony related to their MRPAclaim, and that their counsel had not interviewed him until two weeks before trial, resulting in his belated identification as an expert. The trial court granted the Van Peteghems’ motion and excluded Mr. Hazell from testifying based on the Kohlers’ failure to comply with the expert deadlines in the Discovery Order.

On December 10, 2012, the parties proceeded with the trial, which lasted several days. Mrs. Kohler was the sole witness to testify on behalf of the Kohlers during their case-in-chief. She testified that the landscaping work in the Van Peteghems’ backyard had caused a major increase in water runoff onto the Kohlers’ property, resulting in soil erosion, the growth of a large “chasm” in the wooded area of their property near the Chattahoochee River, and a substantial drop in the resale value of their property. The Kohlers also introduced photographs and video recordings that they had made in an effort to show the drainage problems caused by the Van Peteghems’ landscaping work.

After the Kohlers rested their case, the Van Peteghems moved for a directed verdict on the Kohlers’ MRPA claim. The Van Peteghems contended that the Kohlers had failed to present any evidence showing that their landscaping work violated the MRPA and that, in any event, the MRPA did not create a private right of action for damages. The trial court granted the Van Peteghems’ motion and dismissed the Kohlers’ MRPA claim.

The Van Peteghems then presented their case-in-chief. They called several witnesses, including an expert in civil engineering who opined that the conditions on the Kohlers’ property were naturally occurring as a result of runoff from the drainage pipe and from the topography of the land and were not the result of the Van Peteghems’ landscaping work. Additionally, the Van Peteghems both testified regarding acts of harassment they allegedly had suffered at the hands of the Kohlers. Among other things, Mrs. Van Peteghem testified regarding an incident in her front yard in which Mr. Kohler stood in her face screaming at her and his spit landed on her face.

After the Van Peteghems presented their case-in-chief, they moved for a directed verdict on Mrs. Van Peteghem’s battery counterclaim against Mr. Kohler. The trial court granted the Van Peteghems’ motion for a directed verdict and later instructed the jury that Mr. “Kohler’s action of spitting on Mrs. . . . Van Peteghem constituted a battery under the laws of Georgia,” but that it was up to the jury to determine any harm she had suffered and the amount of damages that should be awarded to her, if any.

Following its deliberations on the remaining claims and counterclaims, the jury returned a verdict in favor of the Van Peteghems on the Kohlers’ nuisance claim and in favor of the Van Peteghems on all of their counterclaims. The jury awarded $250,500 in damages to the Van Peteghems, with the damages broken down by claim in a special verdict form. The trial court thereafter entered final judgment and denied the Kohlers’ motion for a new trial, resulting in this appeal.

1. The Kohlers contend that the trial court erred by directing a verdict in favor of the Van Peteghems on the battery counterclaim. According to the Kohlers, the jury would have been authorized to find from the testimony that errant spittle landed on Mrs. Van Peteghem when Mr. Kohler was screaming at her and that he did not actually intend to spit on her. The Kohlers thus contend that the evidence did not demand a finding that Mr. Kohler committed the intentional tort of battery when his spit landed on Mrs. Van Peteghem. We agree.

Our review of a trial court’s grant of a motion for directed verdict is de novo. Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).

The trial court should grant a directed verdict only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. The court construes the evidence in favor of the party opposing the motion for a directed verdict. We thus affirm the grant of a directed verdict only if all the evidence demands it.

(Punctuation and footnotes omitted.) Continental Maritime Svcs. v. Maritime Bureau, 275 Ga. App. 533, 534 (621 SE2d 775) (2005).

The touching of another without her consent, even if minimal, constitutes a battery. See Lawson v. Bloodsworth, 313 Ga. App. 616, 618 (722 SE2d 358) (2012); King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 45 (616 SE2d 835) (2005). Moreover, the “unlawful touching of a person’s body is actionable even if the unlawful touching is indirect, as by throwing an object or substance at the person.” (Citation omitted.) Lawson, 313 Ga. App. at 618. Nevertheless, unauthorized touching alone is not enough; battery is an intentional tort, and “[i]t is the intent to make either harmful or insulting or provoking contact with another which renders one civilly liable for a battery.” (Emphasis omitted.) Hendricks v. Southern Bell Telephone & Telegraph Co., 193 Ga. App. 264, 265 (1) (387 SE2d 593) (1989). If the tortfeasor acts with the belief that such unauthorized contact is substantially certain to result from his actions, that too can constitute the requisite intent to prove battery. See generally Reeves v. Bridges, 248 Ga. 600, 603 (284 SE2d 416) (1981) (discussing intent necessary to prove an intentional tort); Charles R. Adams III, Ga. Law of Torts § 2:1 (2013-2014 ed.) (same). “Intent is a question of fact for jury resolution and may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances.” (Citation and punctuation omitted.) Stack-Thorpe v. State, 270 Ga. App. 796, 805 (7) (608 SE2d 289) (2004). See Regents of University System of Ga. v. Blanton, 49 Ga. App. 602 (1) (a) (176 SE 673) (1934) (noting that “the question of intent is peculiarly within the province of the jury”).

In the present case, Mr. Kohler did not testify regarding the spitting incident. In contrast, Mrs. Van Peteghem testified that on the day in question, she was standing outside with a county inspector and the president of the neighborhood homeowners’ association when Mr. Kohler approached and began yelling at all of them about the landscaping work and how it was damaging his property. Mrs. Van Peteghem testified that Mr. Kohler “just kept going on and on and on in my face.” She then testified as follows:

COUNSEL: Did he spit on you in the process?
MRS. VAN PETEGHEM: Not the first time he was doing it. And I asked him to step back at least three times. And I kept saying — literally my belly was touching his belly. And I said, please, step back. I’m pregnant, please step back. I don’t know where any of this is coming from. I really want to try to work — I don’t know what you are talking about. . . . COUNSEL: Did spit land on you in this process?
MRS. VAN PETEGHEM: The third time ... when he didn’t step back. And then he spit on me.
COUNSEL: Where did it land?
MRS. VAN PETEGHEM: On my face. . . .
COUNSEL: Okay. Had you asked him more than once to back up?
MRS. VAN PETEGHEM: I asked him three separate times, please, back up.
COUNSEL: Did he on any of those occasions back up when you asked him?
MRS. VAN PETEGHEM: The first time he step[ped] once, but then as soon as he started talking it was right back in my face.
COUNSEL: Were you scared?
MRS. VAN PETEGHEM: I — yes, I was scared. . . .
COUNSEL: Was he raising his voice when he did it? . . .
MRS. VAN PETEGHEM: He was shouting, veins bulging, red in the face. I could feel his breath on my face. And just enraged .... And he’s a big guy and in my face just frothing at the mouth and spitting on me. His hot breath on my face. Shouting that I destroyed the forest. . . .

The individual who was the president of the neighborhood homeowners’ association at the time the landscaping work was performed in the Van Peteghems’ backyard, and who was present at the time and location of the alleged spitting incident, also testified at trial. He testified that on that day, Mr. Kohler “was very agitated” over the landscaping work and walked into a circle of people standing outside that included himself, the county inspector, and Mrs. Van Peteghem. The former president further testified that while standing in the circle of people, Mr. Kohler was “expressing his point of view” and pointed his finger at Mrs. Van Peteghem. However, the former president testified that “there [were] a number of people there during this discussion” and “[i]t wasn’t like Mr. Kohler was one-on-one against [Mrs.] Van Peteghem.”

Based on this record, the trial court erred in granting a directed verdict to the Van Peteghems on the battery counterclaim. To “spit” on someone simply means to eject saliva from the mouth, see http ://www.merriam-webster.com/dictionary/spit, and it can be intentional or unintentional. See Sutton v. Tacoma School Dist. No. 10, 324 P3d 763, 767 (Wash. Ct. App. 2014) (noting that “saliva may accidentally escape the mouth when someone is yelling in the face of another person”); Engle v. Bosco, No. CV054006996S, 2006 Conn. Super. LEXIS 2792, at *10 (no action for battery where “errant spittle landed on plaintiff” as the defendant was yelling at the plaintiff). Based on the entirety of Mrs. Van Peteghem’s testimony about her encounter with Mr. Kohler, it is somewhat ambiguous whether Mr. Kohler intended to spit in her face during the heated encounter, or whether errant spit accidentally landed on her face as he yelled at her. Either inference could have been drawn by the jury. Furthermore, the testimony of the former president of the homeowners’ association, construed in the light most favorable to the Kohlers, could have led the jury to find that Mr. Kohler was not “one-on-one against” Mrs. Van Peteghem, but instead was heatedly “expressing his point of view” among a circle of people standing in the street, which would call into question whether the spitting was intentional. Accordingly, because the evidence and all reasonable inferences drawn from it did not demand a finding that Mr. Kohler intentionally spat on Mrs. Van Peteghem and thus committed a battery, the trial court erred in granting the motion. See Continental Maritime Svcs., 275 Ga. App. at 534.

The Van Peteghems argue, however, that the trial court’s grant of the motion for directed verdict on the battery counterclaim should be affirmed under the “right for any reason” rule because there was other uncontroverted evidence to support the court’s determination that a battery had occurred. See generally Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 96 (1), n. 6 (663 SE2d 797) (2008) (“If a judgment entered pursuant to the granting of a directed verdict is right for any reason, it will be affirmed.”) (citation and punctuation omitted). Specifically, the Van Peteghems contend that the evidence undisputedly showed that Mr. Kohler physically touched Mrs. Van Peteghem with his body during the spitting incident. It is certainly true that Mrs. Van Peteghem’s testimony would support such a conclusion. But, as previously noted, the former president of the homeowners’ association testified that “there [were] a number of people there during this discussion” and “[i]t wasn’t like Mr. Kohler was one-on-one against [Mrs.] Van Peteghem,” which, when construed in favor of the Kohlers, could have been construed by the jury as a denial that any one-on-one physical contact occurred between Mr. Kohler and Mrs. Van Peteghem during the incident.

For these reasons, we conclude that there was at least some evidence in the record from which the jury could have found that Mr. Kohler accidentally spat on Mrs. Van Peteghem and never physically touched her during the encounter. Atrial court should grant a motion for directed verdict “only where the evidence is truly clear, palpable and undisputed.” Service Merchandise v. Jackson, 221 Ga. App. 897, 898-899 (1) (473 SE2d 209) (1996). Hence, “if there is any evidence to support the case of the nonmoving party, a directed verdict must be reversed.” (Footnote omitted.) Franklin v. Augusta Dodge, 287 Ga. App. 818 (652 SE2d 862) (2007). We therefore must reverse the trial court’s grant of the Van Peteghems’ motion for a directed verdict on the battery counterclaim against Mr. Kohler and remand for a new trial on that specific claim.

2. The Kohlers also argue that the trial court erred in charging the jury that Mr. “Kohler’s action of spitting on Mrs Van Peteghem constituted a battery under the laws of Georgia.” The Kohlers further argue that the charge on the spitting incident was so “incendiary” that it poisoned the jury’s deliberations, necessitating the grant of a new trial on all of the claims and counterclaims raised in the case.

We agree with the Kohlers that the trial court’s jury charge was erroneous and that they are entitled to a new trial on the Van Peteghems’ battery counterclaim for the reasons we articulated supra in Division 1. However, we do not believe that the charge was so “incendiary” as to require a new trial on the remaining claims and counterclaims. With the consent of the parties, the trial court submitted a special verdict form to the jury which required it to consider and allocate damages separately for each of the claims and counterclaims. Under these circumstances, we cannot say that the jury’s verdict on any other claim or counterclaim was tainted by the trial court’s charge on the battery counterclaim. See Grant v. Hart, 197 Ga. 662, 673 (3) (30 SE2d 271) (1944) (when the trial court gives an erroneous jury charge and the jury returns a special verdict answering specific questions, a new trial may be granted only as to the specific questions that were connected with and affected by the charge).

3. The Kohlers also contend that the trial court abused its discretion in granting the Van Peteghems’ motion in limine to exclude Adam Hazell from testifying as an expert based on the Kohlers’ failure to comply with the expert deadlines imposed by the Discovery Order. We are unpersuaded.

The imposition of scheduling deadlines for the identification of experts, and questions regarding the admission or exclusion of expert testimony, are left to the broad discretion of the trial court. See Caswell v. Caswell, 285 Ga. 277, 280 (3) (675 SE2d 19) (2009); Agri-Cycle, LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008); Vaughan v. Wellstar Health System, 304 Ga. App. 596, 601-602 (3) (696 SE2d 506) (2010). And we have held that a trial court may exercise its discretion and exclude testimony from an expert not properly identified by a party, when done in violation of an express court order. See Collins v. Dickman, 295 Ga. App. 601, 603-604 (1) (672 SE2d 433) (2008). See also Kroger Co. v. Walters, 319 Ga. App. 52, 60 (2) (b) (735 SE2d 99) (2012) (noting that “[i]n 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,” unless the failure to properly identify the witness was in “violation of an express court order”).

Here, the Discovery Order expressly required the Kohlers to identify any experts to be used at trial by July 30, 2011, and make them available for deposition by October 15, 2011. Yet, the Kohlers did not identify Mr. Hazell as an expert until November 16, 2012, more than 16 months after the expert deadline and three weeks before the specially set trial. Moreover, the Kohlers failed to provide any information about Mr. Hazell’s expected testimony until Saturday, December 8, 2012, two days before trial. Given these circumstances, the trial court did not abuse its discretion in excluding Mr. Hazell’s testimony for violations of the express deadlines contained in the Discovery Order. See Collins, 295 Ga. App. at 603-604 (1).

The Kohlers, however, emphasize that the Discovery Order was entered on July 27, 2011, and thus gave them “a scant two business days” to identify any experts since July 30, 2011 fell on a Saturday. According to the Kohlers, such a short time frame for identifying experts was unreasonable and constituted an abuse of discretion by the trial court. Their claim in this regard is without merit. The discovery period began with the timely filing of the Van Peteghems’ answer on September 13, 2010, see Uniform Superior Court Rule 5.1, and thus the parties had many months to name experts before the Discovery Order was issued on July 27, 2011. Indeed, the Kohlers named a different engineer as a potential expert on November 8, 2010, nearly nine months before the trial court issued the Discovery Order. Hence, the Kohlers’ suggestion that they had too little time to identify an expert is unpersuasive, and we discern no abuse of discretion by the trial court in excluding Mr. Hazell’s testimony.

4. Lastly, the Kohlers contend that the trial court erred in granting the Van Peteghems’ motion for a directed verdict on the Kohlers’ MRPA claim. According to the Kohlers, the trial court erred in concluding that the MRPA does not create a private right of action for damages. We discern no basis for reversal.

As previously noted, the grant of a motion for directed verdict will be affirmed if right for any reason. See Sims, 292 Ga. App. at 96 (1), n. 6. Pretermitting whether the trial court correctly concluded that the MRPA does not create a private right of action for damages, we affirm the trial court’s directed verdict on the MRPA claim because the Kohlers failed to present evidence sufficient to show that the Van Peteghems’ landscaping work violated the MRPA.

In enacting the MRPA, OCGA § 12-5-440 et seq., the General Assembly intended to create a statutory and regulatory framework that would protect “major streams in certain metropolitan areas” from pollution, erosion, and over-intensive development, among other problems. OCGA § 12-5-442 (a). To that end, regional commissions that have been established for the aforementioned metropolitan areas are charged with the preparation and adoption of “comprehensive, coordinated land and water use plans” for “stream corridor[s].” OCGA § 12-5-443 (1); Pope v. City of Atlanta, 242 Ga. 331 (249 SE2d 16) (1978). A “stream corridor” includes “all land in the area in the watercourse, within 2,000 feet of the watercourse, or within the flood plain, whichever is greater.” OCGA § 12-5-441 (17).

The MRPA imposes different restrictions on development in an area that is part of a stream corridor depending on whether a land and water use plan has been adopted by the regional commission. See OCGA § 12-5-444 (a), (b). Once a regional commission has adopted a plan, it is unlawful to engage in any “land-disturbing activity’ incompatible or inconsistent with the plan, and anyone who intends to conduct such activity must first obtain a certificate for the proposed use from the appropriate local governing authority. See OCGA § 12-5-444 (b) (1).

Here, the Kohlers presented no evidence regarding whether a land and water use plan had been adopted by a regional commission covering the area of the Chattahoochee River in question or the requirements under such a plan. Nor did the Kohlers present any evidence regarding whether the Van Peteghems had failed to comply with any specific plan requirements or with the appropriate certification process in carrying out their landscaping work. Indeed, counsel for the Kohlers conceded at the hearing on their motion for new trial that the excluded expert testimony of Mr. Hazell, a representative of the Georgia Mountains Regional Commission, would have been necessary for establishing that the Van Peteghems violated the MRPA. As counsel noted, “Ms. Kohler couldn’t do it,” and she was the only witness who testified in the Kohlers’ case-in-chief. Consequently, we conclude that the Kohlers failed to present evidence sufficient to show a violation of the MRPA, and that the trial court’s grant of a directed verdict to the Van Peteghems on that claim was appropriate.

Decided November 6, 2014

Reconsideration denied December 5, 2014

Michael J. Jacobs, for appellants.

Hawkins Parnell Thackston & Young, William H. Major III, Martin A. Levinson, Graham & Jensen, Jason W. Graham, T. Brandon Welch, for appellees.

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

Boggs and Branch, JJ., concur.

       Initially, the Kohlers also sought attorney fees and costs, punitive damages, and injunctive relief, but they dropped those claims from their amended complaint.

       A transcript of the hearing was not included as part of the appellate record.

       Because the trial occurred in December 2012, the new Georgia Evidence Code does not apply to any of the evidentiary issues addressed in this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       The Van Peteghems argue that because Mr. Kohler failed to testify, they were entitled to a rebuttable presumption that the battery counterclaim against him was well-founded pursuant to former OCGA § 24-4-22 (2012), which provided:
      If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.
      But Mr. Kohler was a party defendant to the battery counterclaim, and “no presumption is created against the defendant for failure to testify’under OCGA § 24-4-22. Gurin v. Harris, 129 Ga. App. 561, 563 (3) (200 SE2d 368) (1973). See Hendley v. Evans, 319 Ga. App. 310, 318 (2) (b) (ii) (734 SE2d 548) (2012); Maloy v. Dixon, 127 Ga. App. 151, 154-155 (2) (a) (193 SE2d 19) (1972); Ramirez v. Mansour, 104 Ga. App. 651, 652 (1) (122 SE2d 594) (1961). The presumption does not apply in this context because a defendant “is under no duty to aid the plaintiff in making out his case.” Maloy, 127 Ga. App. at 154 (2) (a).

       The Kohlers also argue that the trial court abused its discretion by including the provision in the Discovery Order that, except in emergency situations, prohibited the parties, other than through their attorneys, from contacting third parties “for the purpose of making or investigating any complaint or alleged issue or condition on either of the properties at issue in this case or any party to this case.” Even if the trial court’s inclusion of this prohibition in the Discovery Order was improper (a question we need not resolve), the Kohlers have failed to show that they suffered any harm by virtue of the prohibition and thus cannot demonstrate any basis for reversal. See Gropper v. STO Corp., 276 Ga. App. 272, 277 (2) (623 SE2d 175) (2005) (“Reversal requires a showing of harm as well as error [.]”).

       The MRPA defines a metropolitan “area” as an area “having a population of more than 1,000,000,” OCGA § 12-5-441 (2), and it defines a “major stream” as “any stream or river, whether navigable or nonnavigable, which flows through any area and which is the source of at least 40 percent of the public water supply of any such area.” OCGA § 12-5-441 (11).

       “ ‘Land-disturbing activity’ means scraping, plowing, clearing, dredging, grading, excavating, transporting, or filling of land or placement of any structure or impervious surface, dam, obstruction, or deposit.” OCGA § 12-5-441 (10).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A14A1267.
    EVANS v. THE STATE.
    (766 SE2d 821)
   ELLINGTON, Presiding Judge.

Following a jury trial, Nicholas Evans was convicted of possession of codeine, OCGA § 16-13-30 (a), and possession of less than one ounce of marijuana, OCGA § 16-13-30 (j). Evans argues on appeal that the trial court erred in (i) denying his motion for a directed verdict of acquittal, (ii) instructing the jury that it is unlawful to possess any quantity of codeine, (iii) refusing his request to charge the jury on “Schedule V” codeine, and (iv) denying his motion to dismiss the indictment. He also contends that because the State failed to timely produce the chemist’s laboratory test results the trial court erred in denying his motion to dismiss and in admitting certain evidence. We find no error and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on January 27, 2012, an officer with the Gwinnett County police department was dispatched to investigate a report of illegal drug activity at the Deluxe Extended Stay Motel in Duluth. The officer followed the odor of marijuana to a motel room and knocked on the door. The officer knocked a second time, and Evans opened the door. The officer saw three other people inside the room.

When the officer asked about the odor of marijuana coming from the room, Evans acknowledged that they had been smoking marijuana, but that “[he had] flushed it.” After Evans allowed the officer into the room, the officer noticed “a lot of over-the-counter cough syrup medication,” as well as a small circular grinder. Evans admitted that the grinder was his and that there was marijuana inside. After confirming that there appeared to be marijuana inside the grinder, the officer placed Evans under arrest. During the subsequent search of Evans’s person, the officer found a red bottle with a prescription on the label for a third party, F. S. According to the officer, the label on the bottle stated “Prometh Codeine.” Evans was subsequently indicted for possession of codeine and for possession of less than an ounce of marijuana.

At trial, 71-year-old F. S. testified that she had been prescribed Prometh Codeine for her medical condition and that she had never given a prescription bottle in her name to anyone. F. S. had no firsthand knowledge as to how the bottle came to be in Evans’s possession. A chemist with the Forensic Sciences Division of the Georgia Bureau of Investigation, who was tendered as an expert, opined that her “[ajnalysis confirms the presence of Codeine in the sample tested, Schedule V.”

1. Evans contends that the trial court erred in denying his motion for a directed verdict of acquittal for possession of codeine as alleged in the indictment. Specifically, he contends that, having indicted him for possessing “codeine, a Schedule V Controlled Substance,” the State failed to adduce any evidence that the liquid in the prescription bottle contained codeine “in limited quantities” together with another “nonnarcotic, active, medicinal ingredient [ ] in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the [codeine] alone.” See OCGA § 16-13-29(1). Because these elements are required to prove that the substance he possessed was codeine as provided in the statutory definition of codeine as a Schedule V controlled substance, he contends, the evidence was insufficient to support his conviction of possessing codeine as alleged in the indictment.

The offense at issue is set out in OCGA § 16-13-30 (a), which provides that, “[e]xcept as authorized by [the Georgia Controlled SubstancesAct, OCGA §§ 16-13-20 through 16-13-56 (“theAct”),] itis unlawful for any person to purchase, possess, or have under his or her control any controlled substance.” For purposes of the Act, “ ‘[c]on-trolled substance’ means a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308.” OCGA § 16-13-21 (4). Without question, the evidence at trial supported an inference that Evans possessed the prescription bottle and that the liquid in the bottle contained codeine.

Evans contends that the evidence was nonetheless insufficient to authorize the jury to find him guilty of codeine possession as alleged in the indictment because the chemist did not testify regarding the quantity of the codeine in the compound, mixture, or preparation in the bottle and that, although the chemist testified that the liquid contained Promethazine, she did not testify that Promethazine is a nonnarcotic, active, medicinal ingredient and that it was present in sufficient proportion to confer upon the liquid valuable medicinal qualities other than those possessed by the codeine alone. We have previously held, however, that a description in an indictment to a specified controlled substance by reference to a particular Schedule in the Act is “mere surplusage.” (Citation omitted.) Wright v. State, 232 Ga. App. 104, 105 (2) (501 SE2d 543) (1998). That is, the Schedule which defines a substance as a controlled substance under theAct is “an unnecessary fact” in the determination of guilt. Id. See also Freeman v. State, 201 Ga. App. 216, 217 (2) (410 SE2d 749) (1991) (finding Indictment’s reference to Schedule II “an unnecessary description of an unnecessary fact, which need not be proved”).

Under the Act, codeine appears in Schedule II, Schedule III, and Schedule V. For purposes of sentencing an offender who is found guilty of violating OCGA § 16-13-30 (a), subsections (c), (e), (g), and(l) (1) specify the range of punishments that may be imposed, with the severity of the punishment depending on whether the controlled substance is classified within Schedule I, II, III, IV, or V. See Williams v. State, 320 Ga. App. 243, 245-246 (2) (739 SE2d 727) (2013) (where appellant pleaded guilty to indictment charging him with selling Schedule III controlled substances but was sentenced for selling Schedule II controlled substances, the case was remanded for a hearing on which schedule the substances belonged, and for determination of which sentencing range applied); Taylor v. State, 144 Ga. App. 534, 536 (2) (241 SE2d 590) (1978) (evidence that some codeine was present was sufficient to show that substance in bottle was a controlled substance for purposes of OCGA § 16-13-29 notwithstanding that the evidence did not show that appellant possessed codeine in “violation of” OCGA § 16-13-27, as alleged in the indictment). Under the Act, to convict Evans for possession of a controlled substance as alleged in the indictment, the State was required to show that he was in possession of codeine, which is a controlled substance. The State was not required to show that the codeine fell specifically within Schedule V. Pretermitting whether the State failed to adduce evidence showing that the preparation of codeine he possessed met the Schedule V definition, the fact that the State did adduce evidence that the preparation contained codeine defeats Evans’s claim that the evidence was insufficient to convict him of possessing a controlled substance. Accordingly, the trial court did not err in refusing to direct a verdict of acquittal.

2. Evans argues that the trial court erred in charging the jury that “Count one of the accusation is a violation of the Georgia Controlled Substances Act, which provides that it is unlawful for any person to possess, or have under one’s control any quantity of codeine, which is a controlled substance.” “In reviewing an allegedly erroneous jury instruction, we apply the ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) Horton v. Hendrix, 291 Ga. App. 416, 418 (1) (662 SE2d 227) (2008).

Evans contends that the charge was misleading in that (i) the reference to “violation” was inaccurate because Count 1 was an “alleged violation,” and (ii) he was not charged with possession of “any quantity” of codeine. We disagree. The charge apprised the jury that Count 1 of the indictment charged a violation of the Georgia Controlled Substances Act. That the violation was also an “alleged” violation is implicit given the trial court’s instructions to the jury as to the State’s burden of proof and the presumption of innocence. The charge is not misleading or inaccurate when considered as a whole. Vergara v. State, 287 Ga. 194 (3) (b) (695 SE2d 215) (2010) (“jury instructions must be read and considered as a whole in determining whether the charge contained error”) (citation and punctuation omitted). Further, as it is unlawful under OCGA § 16-13-30 (a) to possess any amount of a controlled substance such as codeine, the instruction as given was not misleading. See generally Dixon v. State, 180 Ga. App. 222, 224 (2) (348 SE2d 742) (1986).

3. Evans contends that the trial court erred in refusing to give the following written request to charge the jury:

The controlled substances listed in this code section are included in Schedule V: Any compound, mixture, preparation containing limited qualities [sic] of any of the following narcotic drugs, or salts, thereof which also contains one or more non-narcotic, active, medicinal ingredients in sufficient proportion to confer upon the compound, mixture, [or] preparation valuable medicinal qualities other than those possess [sic] by the narcotic drug along [sic]: Not more than 200 milligrams of codeine or any of its salts per 100 milliliters or per 100 grams.

Decided December 5, 2014

The proposed instruction, accounting for what appear to be typographical errors, is substantively the same as OCGA § 16-13-29 (1) (A), pertaining to Schedule V. Evans argues that the trial court was required to give the charge because it was his sole defense. “[T]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” (Citation and punctuation omitted.) Price v. State, 289 Ga. 459, 459 (2) (712 SE2d 828) (2011). As discussed in Division 1, supra, the indictment’s reference to codeine as a Schedule V drug was sur-plusage. See Wright, 232 Ga. App. at 106 (2). The State was required to show that Evans was in possession of codeine, not that the codeine fell within Schedule V. As the charge was not a defense and to suggest so was misleading, the trial court did not err in failing to give the instruction. See Reyes v. State, 322 Ga. App. 496, 498 (2) (745 SE2d 738) (2013) (as the instruction was not a separate and distinct defense, the trial court did not err in failing to give the charge).

4. Evans maintains that the trial court erred in denying his motion to dismiss the indictment on the grounds that OCGA § 16-13-29, pertaining to Schedule V controlled substances, is unconstitutionally vague. The record shows that Evans initially filed this appeal in the Supreme Court of Georgia so that the Court could consider this argument. After reviewing the appellate record, the Supreme Court held that Evans failed to preserve this issue with a timely filed motion in the trial court. Therefore, the Court found, “no constitutional issue is properly presented in this appeal.” Then, finding that there was no basis for exercising its original appellate jurisdiction, the Supreme Court transferred the appeal to this Court. Having been resolved by the Supreme Court, this alleged error is not subject to further appellate review.

5. Evans has failed to support his remaining alleged errors with any legal authority. Consequently, they are deemed abandoned on appeal. Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

Michael B. King, for appellant.

Daniel J. Porter, District Attorney, Drew Unger, Assistant District Attorney, for appellee.

       See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

       The controlled substances that are specified in Schedule V include the following:
      (1) Any compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or salts thereof, which also contains one or more nonnarcotic, active, medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:
      (A) Not more than 200 milligrams of codeine, or any of its salts, per 100 milliliters or per 100 grams;
      (B) Not more than 100 milligrams of dihydrocodeine, or any of its salts, per 100 milliliters or per 100 grams;

        (C) Not more than 100 milligrams of ethylmorphine, or any of its salts, per 100 milliliters or per 100 grams;
      (D) Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit;
      (E) Not more than 100 milligrams of opium per 100 milliliters or per 100 grams[.]
      OCGA § 16-13-29 (1).

       OCGA § 16-13-30 was amended by Ga. L. 2012, p. 899, § 3-7A, which amendment did not go into effect until July 1, 2012, after the offense occurred in this case. See Ga. L. 2012, p. 899, § 9-1. See also Ga. L. 2012, p. 899, §§ 3-7B and 3-7C, which became effective July 1, 2013, and July 1, 2014, respectively. As the offense here occurred on January 27, 2012, we consider this case under the statute in effect at the time of the offense. See Ga. L. 1997, p. 1311, § 4.

       The controlled substances that are specified in Schedule II include the following:
      (1) Any of the following substances, or salts thereof, except those narcotic drugs specifically exempted or listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
      (A) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, . . . including . . .
      (vii) Codeine[.] . . .
      OCGA § 16-13-26.

       The controlled substances that are specified in Schedule III include the following:
      (4) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing limited quantities of the following narcotic drugs, or any salts thereof:
      (A) Not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;
      (B) Not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients inrecognized therapeutic amounts.
      OCGA § 16-13-27.

       See also Freeman, 201 Ga. App. at 217 (1) (OCGA § 16-13-30 (b) defines the offense of manufacturing, delivering, distributing, or selling any controlled substance, “and paragraphs (d), (f) and (h) of [OCGA § 16-13-30] specify the punishments to be imposed for violation of paragraph (b), with the severity of the punishment depending on whether the controlled substance is a narcotic drug and whether it is listed in Schedules I, II, III, IV, or V of the [Act].”).

       The charge as given is generally consistent with the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2013), § 2.70.10.

       Absent exceptions such as lawful possession, which was charged to the jury. See OCGA § 16-13-35 (c).


author: MCFADDEN, Judge.

text:
    A14A1108.
    MAINES v. THE STATE.
    (765 SE2d 382)
   MCFADDEN, Judge.

The issue presented by this appeal is whether the trial court, after finding that the defendant had received ineffective assistance of counsel in rejecting a plea offer from the state, erred in not ordering the state to re-offer that prior plea proposal to the defendant. Because such a decision was within the trial court’s discretion and there has been no showing of an abuse of that discretion, we affirm.

Jimmie Maines was indicted for aggravated stalking of his former wife. During plea negotiations, the state offered to recommend a sentence of five years, with one year to be served in confinement, in exchange for Maines’ guilty plea. Maines rejected the offer and made a counteroffer for six months in confinement. The state did not agree to the counteroffer, and Maines opted to enter a nonnego-tiated guilty plea. A plea hearing was held, and Maines entered his nonnegotiated guilty plea. Before sentencing, Maines informed the court of the plea offer of five years, with one to serve, that had been made by the state. The court imposed a sentence often years, with six to be served in confinement.

Maines moved to withdraw his guilty plea, claiming ineffective assistance of counsel. After an evidentiary hearing, the trial court granted the motion, finding that plea counsel had been ineffective because he did not know the elements of the aggravated stalking offense charged and thus did not adequately explain those elements to Maines. Citing Lafler v. Cooper, 566 U. S._(132 SCt 1376, 182 LE2d 398) (2012), the court further ordered that the state was required to re-offer its original plea proposal to Maines.

At a subsequent hearing, the state argued that the court had misinterpreted Lafler, that the state was not required to re-extend the plea offer and that it would refuse to do so. After further discussions with counsel, the trial court did not require the state to re-offer the original plea proposal, and instead indicated to Maines that his options were either to exercise his right to a jury trial or to enter a plea. Maines opted to enter a guilty plea, and the trial court once again entered a sentence of ten years, to serve six. However, this time the court also granted Maines first offender status. Maines filed this direct appeal from the judgment of conviction entered on the guilty plea.

1. Jurisdiction.

At the outset we note that a direct “appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. [Cit.]” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). Because the issue raised in this appeal can be resolved by facts appearing in the record, the filing of a direct appeal was appropriate, and we thus have jurisdiction to consider the appeal.

2. Not requiring state to re-offer plea proposal.

Maines argues that the trial court, after granting his motion to withdraw his first guilty plea, erred in failing to require the state to re-offer its original plea proposal and in then imposing the same sentence after his second guilty plea. The argument is without merit.

“A trial court has plenary power over its orders and judgments during the term at which they are entered, and may amend, correct, or revoke them, for the purpose of promoting justice.” Ritter v. State, 272 Ga. 551, 553 (2) (532 SE2d 692) (2000) (citations and punctuation omitted). Here, the trial court’s decision not to require the state to re-offer its initial plea proposal effectively amounted to a modification of its earlier order requiring such a re-offering. This modification was well within the trial court’s plenary authority over its own orders.

Maines’ reliance on Lafler to support the proposition that the trial court erred in failing to enforce its earlier ruling and require the state to re-extend the plea offer is misplaced. While Lafler does provide that in certain circumstances it may be an appropriate remedy for a trial court to require the state to re-offer an earlier plea proposal, those circumstances do not exist in the instant case. As explained in Lafler:

If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.

Lafler, supra, 132 SCt at 1389 (II) (C) (citations omitted; emphasis supplied). In this case, there was no offer for a plea to a lesser count than the aggravated stalking count for which Maines was convicted after his first guilty plea, nor was there a mandatory sentence confining the judge’s sentencing discretion. Thus, the circumstances contemplated by Lafler which might have necessitated a re-offering of the plea proposal simply are not present in this case. Moreover, even if such circumstances were present, Lafler still clearly states that such a remedy would be up to the trial court’s discretion.

And contrary to Maines’ position, Lafler actually supports exactly what the trial court here did after allowing withdrawal of the guilty plea based on finding that Maines had declined the state’s initial plea offer as the result of ineffective assistance of counsel. As Lafler provides:

In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

Lafler, supra, 132 SCt at 1389 (II) (C).

Although the instant case involved conviction after a nonnego-tiated guilty plea rather than after a trial, the situation contemplated by Lafler is otherwise the same as that in this case. That is, the charge that Maines would have admitted as part of a negotiated plea bargain was the same aggravated stalking charge as that to which he entered his nonnegotiated plea. And the sole advantage Maines would have received under the state’s plea offer, if accepted by the trial court, was a lesser sentence than that received after the nonnegotiated plea. Given that situation, the trial court here, consistent with Lafler, held an evidentiary hearing after which it allowed withdrawal of the first plea because there was a reasonable probability that, but for counsel’s errors, Maines would have accepted the plea offer.

Thereafter, when Maines chose to enter a second nonnegotiated plea, the trial court properly determined the voluntariness of the plea and then exercised its discretion in determining the appropriate sentence. Before imposing sentence, the court noted that it had considered the arguments from both sides and the stipulated testimony from the prior hearing, which showed that Maines had engaged in a systematic pattern of harassment and intimidation of the victim. Based on the arguments and evidence, the trial court decided to impose the same length of sentence as originally imposed, but this time granted Maines first offender status.

Decided October 29, 2014

Reconsideration denied December 8, 2014

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Shalena C. Jones, Assistant District Attorney, for appellee.

As stated by the Supreme Court, the Lafler “decision leaves open to the trial court how best to exercise that discretion in all the circumstances ofthecase.”Id. at 1391 (III). The trial court in this case properly exercised its discretion. And because Maines has not shown an abuse of that discretion, we affirm.

Judgment affirmed.

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


author: Boggs, Judge.

text:
    A14A1121.
    MASTEC NORTH AMERICA, INC. et al. v. SANDFORD et al.
    (765 SE2d 420)
   Boggs, Judge.

In this interlocutory appeal, Mastec North America, Inc. (“Mas-tec”) and DirecTV, Inc. (California) (“DirecTV”) appeal from the trial court’s order denying their motion for summary judgment. They contend that no genuine issues of material fact exist as to whether a field technician was acting in the course and scope of his employment at the time he ran a stop sign and collided with another vehicle. For the reasons explained below, we agree and therefore reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. We review a trial court’s grant of summary judgment de novo, construing the record and all reasonable inferences in favor of the nonmoving party.

(Citation and punctuation omitted.) Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 (629 SE2d 501) (2006). So viewed, the record shows that Clifton Warnock was employed by Mastec as a field technician to go to the home of DirecTV customers to install and repair satellite TV equipment provided by DirecTV At the time of the accident, Warnock was driving a Mastec work van. Warnock authorized Mastec to deduct $40 per week from his paycheck for the privilege of driving the work van to and from his home at the start and end of each workday.

Warnock’s personnel file included documents in which he acknowledged the following:

“WORKING TIME” is time spent performing any activities for the benefit of MasTec, such as:
1. Performing warehouse activities;
2. Performing Office Work;
3. Time spent training;
4. Performing installation or service actions at a customer location;
5. Door tagging a customer if not home during designated appointment window;
6. Travel time between jobs;
7. Attending company meetings;
8. Participating in training activities;
9. Traveling from the office to your first job andback to office after completing your last job.

The following activities are typically “NON-WORKING TIME”:

1. Meals or other breaks lasting 30 minutes or longer;
2. Time spent getting to work in the morning;
3. Time spent traveling home after work.

Questions and Answers

Q. When does my work day begin?
A. The beginning of your work day usually begins when you arrive at the warehouse or the location where you receive your daily work orders from your supervisor. If you do not report to the facility or a remote location, your work day typically begins when you arrive at the location of your first work order.
Q. If I do not go by the office, but drive directly from my house to my first job, is that drive time working time?
A. No. In that case, the drive time is non-work time.
Q. When does my work day end?
A. Your work day ends when you have completed all your work related activities for the day. If you report to warehouse at the end of the day, you should include travel time to the warehouse as working time. If you drive home after your last job, the time spent driving home [is] nonworking time.
Q. I forgot to call in and close my last job, but remember and close it after I arrive at home. Is that working time?
A. Yes. Please include the time calling in and closing your work order on your timesheet. But, it is MasTec policy and your duty to close all work orders before leaving the customer’s house. Failing to do so may result in disciplinary procedures.

Warnock testified that on the day of the accident, his two scheduled work orders “had fallen through.” He received a telephone call from his supervisor directing him to a new job on Creekview Drive in Newnan, Georgia. Information about this job was also entered into a computer system that Warnock could access through a hand-held device. Warnock did not have a preprinted work order for this job, because it was assigned after the start of the work day.

When Warnock completed his assigned work at a customer location, he was required to make an entry into his hand-held device before leaving the customer location to close out the job. Warnock testified that he closed out the Creekview Drive job on his hand-held device; he did not recall any other paperwork associated with this job. Warnock testified that he could not recall ever closing out a job on his hand-held device after returning home from his last job.

With regard to the time sheet that he was required to complete on a daily basis, Warnock testified that completing his time sheet was his last work activity of each work day. Warnock acknowledged that “most of the time” he completed his time sheet in his work van when the job was completed. When asked if he ever completed his time sheet after he arrived at home after the last job, Warnock replied, “I vaguely can say possibly that that could have happened. I remember, you know, in the van — that we basically completed each job. And at the of— end of that job as our working time ended, we completed the time sheet. I remember most.” He could not recall any specific occasion when he completed a time sheet at home.

An eyewitness to the accident testified that when she was picking up loose papers on the ground after the accident, Warnock told her, “don’t worry about that paperwork, we do so much as it is, we have so much paperwork to do I get that whenever.” Additional questioning during her deposition elicited the following response:

Q. And did Mr. Warnock say — the driver of the DirecTV van —
A. Uh-huh.
Q. — say something to you about that he had more paperwork to do to finish —
A. Yes. He said don’t worry about that paperwork, I have more paperwork to do. We have so much to do. I’m not worried about that right now.
Q. Okay. And he indicated to you that he had more paperwork to do to finish his work?
A. I guess to finish his work.
Q. Okay. Well, that’s what he said to you, correct?
A. Yes. Got more paperwork to do so . . .
Q. Okay. To finish his work?
A. To finish out his job, yes.

A Green Road Central Records satellite tracking device was installed on Warnock’s work van that collected data about the start and stop time of a “trip” and whether high speeds were detected. The record includes a Green Road trip report for the date and time of the accident with an identification number of “57556” that does not include a driver’s name for the date of the accident. It states the trip began at 6:59 p.m. and ended at 7:22 p.m. A 911 call reporting the accident was made at 7:23 p.m. While the trip report appears to have been produced by Mastec in discovery, no testimony or other evidence in the record explains how the trip data was collected or how the Green Road trip reports should be interpreted.

Mastec produced in discovery a weekly time sheet signed by Warnock with a handwritten date of “9/10/09” in the blank beside an entry for “Signature Date.” Warnock also handwrote an “end time” of 7:17 p.m. for his work on the date of the accident, which was September 10, 2009. Warnock testified that he did not have a specific recollection of his location when he signed the time sheet and he did not remember which of multiple potential clocks he may have looked at to determine the time before making his entry. He stated that he stopped at a gas station to get a snack after leaving the last customer’s home before continuing on his way home. He explained that “perhaps [he] may have made a telephone call to [his] supervisor at some point.” He stated that he would have signed the time sheet at 7:17 p.m. on September 10, 2009. After repeated questioning during his deposition, Warnock stated he did not have a recollection of where and at what time he completed the time sheet.

Frank Casto, a DirecTV employee who worked with Warnock on his last job before the accident, testified that he witnessed the accident as he was following Warnock in a separate vehicle. He testified that both he and Warnock were headed home at the time of the accident. Casto testified that he did not see Warnock complete any paperwork at the conclusion of the job and agreed that it was possible to conclude that Warnock may have completed his time sheet at home after the accident. He stated that he would occasionally close out a job on his hand-held device at home because he could not get a signal on it at the customer location.

Following the accident, Henry and Tina Sandford filed a complaint against Mastec, DirecTV, and Warnock, alleging negligence and gross negligence against Warnock and seeking a recovery from Mastec and DirecTV under a theory of respondeat superior. The trial court initially granted summary judgment in favor of Mastec and DirecTV on the issue of respondeat superior, but later changed its mind and denied summary judgment on this issue. After the trial court granted a certificate of immediate review, this court granted Mastec and DirecTV’s application for interlocutory appeal.

1. Appellants contend that they are entitled to summary judgment in their favor because the undisputed evidence shows that Warnock was not acting within the course and scope of his employment at the time of the accident. We agree.

“When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.]” (Emphasis supplied.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979). Generally, an employee traveling to or from work “is not in the course of his employment but rather is engaged in a personal activity.” (Citations and punctuation omitted.) Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 639 (710 SE2d 839) (2011).

Where a tort occurs as a result of a vehicle collision in which the employee was driving his employer’s vehicle, however, the employer’s liability must be analyzed under the burden-shifting framework espoused by the Supreme Court of Georgia in Allen Kane’s Major Dodge, [supra]. Under this framework, a presumption arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is then on the employer to show otherwise. An employer may overcome this presumption as a matter of law by presenting uncontradicted evidence showing that the employee was not acting in the course and scope of his employment. The employer is thereafter entitled to summary judgment unless “other facts” are proffered — that is, additional evidence other than the fact that the vehicle was owned by the employer — from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred. Where the “other facts” are direct evidence, such is sufficient for the case to go to the jury. Where the “other facts” are circumstantial, however, such evidence will not defeat the employer’s motion for summary judgment, unless it is sufficient to support a verdict in the plaintiff’s favor.

(Citations and punctuation omitted.) Dougherty Equip. Co. v. Roper, 327 Ga. App. 434, 436 (1) (a) (757 SE2d 885) (2014).

Here, appellants rebutted this presumption with testimony from Warnock and Casto that Warnock was driving home from his last job at the time of the accident. See CGL Facility Mgmt. v. Wiley, 328 Ga. App. 727 (760 SE2d 251) (2014). The circumstantial evidence appel-lees rely upon to show that Warnock may not have been driving home is insufficient to overcome such direct evidence. Specifically, appel-lees point to evidence showing that Warnock should have turned left to drive directly home, rather than straight, at the intersection where the accident occurred. Warnock testified that he was using a GPS device to provide directions home after he completed his last job and that he “would not have gone straight if it wouldn’t have told me to.”

[W]hen a party attempts to create a jury issue using circumstantial evidence to counter uncontradicted direct testimony as to a certain fact, the circumstantial evidence must be inconsistent with the direct testimony and must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions.

(Citations and punctuation omitted.) Target Corp. v. Amerson, 326 Ga. App. 734, 743 (1) (h), n. 29 (755 SE2d 333) (2014). Here, the circumstantial evidence was not inconsistent with the direct evidence that Warnock was driving home at the time of the accident, because the GPS device could have provided Warnock with directions for a different route to his home.

Appellees argue that issues of fact as to whether Warnock had outstanding paperwork to complete once he arrived home from his last job also preclude summary judgment on the issue of respondeat superior. This argument has no merit, because appellees must show that Warnock was acting within the scope of his employment at the time of the accident. In Elam v. Ins. Co. of North America, 134 Ga. App. 169 (213 SE2d 546) (1975), we rejected a similar argument and concluded that an employee was not acting within the scope of his employment while driving home, even though he intended to complete paperwork once he arrived at home. We stated:

Even if the employee be considered “at work” when he reached his home where he worked on his employer’s business, at most he was still only “en route to or from his work” at the time of the collision under the above authorities, there being no showing that he was in continuous employment, as a traveling salesman. [Cit.]

Id. at 170.

Appellees assert that we should affirm the trial court based upon our decision in Littlefield Constr. Co. v. Bozeman, 314 Ga. App. 601, 603-604 (1) (725 SE2d 333) (2012). We disagree. In Littlefield, the employer allowed employees to drive a company vehicle home provided they “kept the vehicle clean,” and an employee drove a company vehicle home in order to wash it over the weekend, as well as to use the vehicle and its trailer hitch on a personal errand. We concluded that an issue of fact existed as to whether the employee was driving the vehicle for the “employer’s business at the time of the collision because although [the employee] had made a personal stop on the way home, at the time of the collision, [the employee] was driving the truck to his home so that it could be washed the next morning.” (Emphasis supplied.) Id. at 605. Significantly, we noted that the exception to the general rule applies “where the employer has provided the employee a vehicle which enables the employee more conveniently to perform a duty for the employer.” (Citations, punctuation and footnote omitted.) Id.

In contrast, here, Warnock was driving the truck home for his own convenience and he paid $40 a week to his employer for this privilege. And company policy clearly stated that he would only be paid for the time spent completing paperwork at home, not his driving time, if he failed to complete all of his paperwork before departing from the location of his last customer for the day as required by company policy. Based upon these distinguishing facts, we conclude that Littlefield does not control the outcome of this case.

Finally, we reject appellees’ contention that Warnock was performing a special mission within the scope of his employment at the time of the accident. An exception to the general rule that an employee is not acting within the scope of their employment while driving to and from work applies “where the employee undertakes a special mission at the direction of the employer.” Wright v. Pine Hills Country Club, 261 Ga. App. 748, 751 (583 SE2d 569) (2003).

Decided November 12, 2014

Reconsideration denied December 8, 2014

Lewis Brisbois Bisgaard & Smith, James R. Doyle, Tracy L. Steele, for appellants.

Hill & Bleiberg, Robert P. Bleiberg, for appellees.

Where the employee, before or after customary working hours, is on his way home after performing, or on the way from his home to perform, some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, or from the place of performance of the work to the home, such injury is considered as arising out of and in the course of the employment.

(Citation and punctuation omitted.) Id. In this case, Warnock’s last job involved performing his usual work and cannot be considered a special mission. See Hargett’s Telephone Contractors v. McKeehan, 228 Ga. App. 168, 170-171 (491 SE2d 391) (1997).

2. Appellants’ remaining enumeration of error contesting the trial court’s authority to grant a motion for reconsideration of a summary judgment decision is rendered moot by our holding in Division 1.

Judgment reversed.

Dillard and Ray, JJ., concur.

       Casto is also Warnock’s father-in-law.

       Our decision in Patterson v. Southeastern Newspapers, 243 Ga. App. 241 (533 SE2d 119) (2000), does not require a different result. In Patterson, we concluded that issues of fact existed as to whether the employee was driving home from a special errand because the employee had been called in to work on a scheduled day off. 243 Ga. App. at 243-244 (1). Here, there was no evidence that Warnock was asked to work on a scheduled day off.


text:
    A14A1159.
    ENSLEY v. THE STATE.
    (765 SE2d 374)
   MCFADDEN, Judge.

Richard Michael Ensley appeals from his convictions on multiple counts of sexual exploitation of children (OCGA § 16-12-100 (b)) in connection with child pornography found on his home computer. He argues that the trial court erred in denying his motion to suppress information about his name and address obtained from his Internet service provider, Comcast Cable Communications Holdings, Inc. Because Ensley lacked standing to challenge the acquisition of this subscriber information from Comcast, we affirm.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” Wright v. State, 294 Ga. 798, 801 (2) (756 SE2d 513) (2014) (citation and punctuation omitted). So viewed, the evidence shows that a detective in the Cherokee County Sheriff’s Department obtained from the magistrate court of that county a search warrant directing Comcast to provide subscriber information for a particular IP address. The detective sent a facsimile of the warrant to Comcast’s legal department in New Jersey, and several days later Comcast provided information that linked the IP address to Ensley. The detective then obtained a warrant to search Ensley’s residence. In the ensuing search of the residence, law enforcement officers seized computers, storage devices, and other electronic devices containing child pornography.

Ensley moved to suppress all evidence obtained as a result of the search warrant sent to Comcast, arguing that the magistrate court lacked jurisdiction to issue that warrant because Comcast’s records were located in New Jersey. The trial court denied the motion. Revisiting the issue immediately before trial, the trial court again denied the motion, ruling that Ensley lacked standing to make his challenge.

We find no error. “In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008) (citations and punctuation omitted).

Our decision in Hatcher v. State, 314 Ga. App. 836, 837-839 (1) (726 SE2d 117) (2012) (physical precedent), is instructive on the issue of whether Ensley had a reasonable expectation of privacy in the Internet subscriber account information produced by Comcast. In Hatcher, a household resident (who used Internet service in the residence but was not himself the Internet service subscriber) sought to suppress subscriber information obtained from Comcast’s New Jersey legal department following the issuance of a search warrant issued by a Georgia court. We held that the resident had not shown he had a reasonable expectation of privacy in information about an account for which he was not the subscriber. Id. at 839 (1). But we also expressed “doubt that an Internet service subscriber can have a reasonable expectation of privacy in the subscriber information that he voluntarily conveys to an Internet service provider in order to obtain [I]nternet service.” Id. We noted that the United States Supreme Court and Georgia appellate courts have held that a person has no reasonable expectation of privacy in information voluntarily conveyed to another. Id. at 838 (1) & n. 6 (citing Smith v. Maryland, 442 U. S. 735, 743-744 (II) (B) (99 SCt 2577, 61 LE2d 220) (1979); United States v. Miller, 425 U. S. 435, 442 (II) (96 SCt 1619, 48 LE2d 71) (1976); Kesler v. State, 249 Ga. 462, 469 (5) (291 SE2d 497) (1982); Culpepper v. State, 156 Ga. App. 331 (1) (274 SE2d 616) (1980)). And we acknowledged cases from other jurisdictions that applied this principle to conclude that Internet service customers had no reasonable expectation of privacy in subscriber information voluntarily given to their Internet service providers. Hatcher, 314 Ga. App. at 838 (1) (citing United States v. Beckett, 369 Fed. Appx. 52, 56 (II) (A) (1) (11th Cir. 2010); United States v. Christie, 624 F3d 558, 573-574 (II) (C) (3d Cir. 2010); United States v. Bynum, 604 F3d 161, 164 (II) (A) (4th Cir. 2010); United States v. Perrine, 518 F3d 1196, 1204 (I) (10th Cir. 2008); Guest v. Leis, 255 F3d 325, 336 (II) (C) (3) (6th Cir. 2001)).

Decided October 29, 2014

Reconsideration denied December 8, 2014

Anthony J. Morgese, for appellant.

Although our decision in Hatcher is not binding precedent, see Court of Appeals Rule 33 (a), we find its analysis and cited authorities persuasive in this case. Ensley voluntarily conveyed to Comcast the subscriber information that Comcast supplied to law enforcement (his identity and address). For the reasons set forth in Hatcher, he cannot show that he had a reasonable expectation of privacy in that information, and consequently he lacks standing to pursue his Fourth Amendment challenge to the search of Comcast for that information.

Judgment affirmed.

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

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.


text:
    A14A1182.
    GOMEZ v. INNOCENT.
    (765 SE2d 405)
   MCFADDEN, Judge.

This appeal challenges the trial court’s grant of summary judgment to the defendant veterinarian in a dispute over medical bills and boarding costs for a dog. Because there exist no genuine issues of material fact, we affirm.

This is the second appearance of this case in this court. The decision in the first appeal, Gomez v. Innocent, 323 Ga. App. 1 (746 SE2d 645) (2013), set forth the following statement of facts and procedural posture.

The facts show that [Josh] Gomez took his dog, Pilot, to PetFirst [Animal Hospital, Inc.] during the late night and early morning hours of August 26 and 27, 2007, because the dog was lethargic and throwing up. [Veterinarian Garry] Innocent diagnosed the dog with a virus that could have killed Pilot if it remained untreated. Innocent gave Gomez an estimate of $1,453.25 for the dog’s care. PetFirst required full payment up front, but because Gomez was unable to pay, Innocent agreed to accept $400 for that night’s care, and Gomez’s then-girlfriend paid the bill. Gomez left the dog for the night, then telephoned on August 27, 2007, when an employee told him he owed an additional $751.25. Neither the employee nor Gomez addressed whether there would be further charges. Gomez paid the $751.25 on August 28, 2007, after getting some of the funds as an advance from his employer. He returned on August 29, 2007, to pick up the dog. After he put the dog in his car, he was told he owed an additional $484.80. He believed that his bill had been satisfied by the prior payment, even though the dog had remained at the facility for an additional day. He neither objected to nor identified any inaccurate charges. Because Gomez was unable to pay the $484.80, Innocent asked him to leave the dog at PetFirst until the bill was paid, and Gomez did. After the dog had been at PetFirst for 20 days, a “Good Samaritan” paid the dog’s accrued bill of $972.
Gomez sued, alleging that Innocent and PetFirst breached their contract by refusing to return the dog after he paid the amounts agreed to, but before he paid “additional sums not agreed by the parties in their initial contract.” Gomez also claimed unjust enrichment, conversion, and “tortious invasion of plaintiff’s rights,” and sought damages. Innocent and PetFirst answered and counterclaimed, and then moved for summary judgment, which the trial court denied; they then moved for reconsideration and simultaneously filed an amended summary judgment motion, which the trial court also denied. The trial court additionally denied Gomez’s motion for summary judgment.
The case went before a jury on February 13 and 14, 2012, but before the close of Gomez’s presentation of the evidence, the trial court announced that it planned to dismiss the case for failure to state a claim. The trial court refused to allow Innocent to testify, refused to allow Gomez to finish presenting his case, and cut short Gomez’s proffer. The trial court then issued an order sua sponte granting summary judgment in favor of Innocent and PetFirstf.]

Id. at 1-2 (punctuation and footnote omitted).

Gomez appealed from the summary judgment ruling, and this court found that the trial court had erred in truncating Gomez’s proffer of evidence and not allowing him to complete the record before summarily disposing of the case. Gomez, 323 Ga. App. at 3 (1). This court reversed the grant of summary judgment and remanded the case to the trial court for determination of whether genuine issues of material fact exist as to whether “Innocent was justified in relying on the veterinary lien statute, OCGA § 44-14-490, to retain the dog when Gomez failed to pay his bills.” Id. at 3 (2).

On remand, Innocent again moved for summary judgment and Gomez filed a response. After considering the motion, the response and the entire record, the trial court entered summary judgment in favor of Innocent. Gomez appeals, challenging the grant of summary judgment to Innocent.

1. OCGA § 44-14-490.

Gomez claims that the trial court erred in granting summary judgment to Innocent because genuine issues of material fact exist as to the validity of the veterinarian’s lien under OCGA § 44-14-490. We disagree.

OCGA § 44-14-490 (a) provides:

Every licensed veterinarian shall have a lien on each animal or pet treated, boarded, or cared for by him or her while in his or her custody and under contract with the owner of the animal or pet for the payment of charges for the treatment, board, or care of the animal or pet; and the veterinarian shall have the right to retain the animal or pet until the charges are paid.

The term “charges,” as used in the veterinarian’s lien statute, is defined as meaning any charges, fees or expenses

which have been contracted for, agreed to, or otherwise mutually acknowledged by written agreement, course of conduct, or understanding, including but not limited to[,] [b]oard, care, services, and treatment of the animal or pet, whether provided by the operator or by a third party and incurred by the operator [.]

OCGA § 44-14-490 (b) (1) (A) (i) (I).

In this case, it is undisputed that Innocent is a licensed veterinarian who, at Gomez’s request, treated Gomez’s dog Pilot for parvo virus. Gomez signed a treatment authorization form; was informed that all professional fees were due at the time services were rendered; and was given a detailed written estimate of the expected treatments and costs, which plainly stated that the total final bill could vary from the estimate depending on the medical needs of the pet. Gomez testified that his only concern was his dog’s health and not the amount of the bill, and that he understood that he would have to pay at least the full amount of the estimated bill of $1,453.25. The record contains the clinical records of the actual treatment and care provided to Gomez’s pet, as well as a final itemized bill showing the cost of each item.

The foregoing uncontradicted evidence of record plainly shows that Gomez agreed to have Innocent treat his dog for the parvo virus in exchange for payment of at least the estimated costs. Gomez’s conclusory assertion that “ [n] othing was agreed to or mutually acknowledged” is simply incorrect and does not create a genuine issue of material fact.

Likewise, Gomez has not cited any evidence creating a genuine issue of material fact as to the accuracy or validity of any of the charges on the itemized bill. He has attempted to do so by claiming that Innocent admits in his affidavit that no treatment was rendered on the night of August 26, 2007, whereas the bill includes charges for services rendered that night. However, contrary to Gomez’s claim, Innocent makes no such admission in his affidavit, which actually avers that on the evening of August 26, 2007, Gomez presented his dog Pilot for treatment, that Innocent diagnosed the dog as having parvo virus, and that the dog likely would have died if treatment had not commenced immediately.

Decided November 3, 2014

Reconsideration denied December 8, 2014

McCrimmon & McCrimmon, Lisa L. McCrimmon, Edward W. McCrimmon, for appellant.

Moreover, Gomez ignores Innocent’s supplemental affidavit that further addressed the issue of when the services were performed, explaining that the dog was first presented for treatment late in the evening, that diagnostic tests were begun at approximately 10:25 p.m. on August 26, and that because of the critical circumstances some services were then started. As Innocent further averred:

All of the services charged to [Gomez] ... which have a date of August 26, 2007, were itemized in the estimate which [Innocent] gave to [Gomez] on August 26, 2007, and were performed or commenced on August 26,2007, and continued through the following day. There is no charge for treatment which was not performed.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). “A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims.” Id. (citation and punctuation omitted). Here, Innocent has met this burden by presenting evidence showing that he acted properly in relying on the veterinary lien statute to retain the dog when Gomez failed to pay his bills. Gomez thus “cannot rest on [the] pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id. (citation and punctuation omitted). He has failed to do so, and thus has failed to show that the trial court erred in granting summary judgment because no genuine issues of material fact exist as to the validity of the veterinarian’s lien under OCGA § 44-14-490.

2. Remaining enumerations.

Because of our holding in Division 1, we need not address Gomez’s remaining enumerations of error.

Judgment affirmed.

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

Robert N. Levinson, Villard S. Bastien, Jr., for appellee.


author: McFadden, Judge.

text:
    A14A1294.
    COURTLAND HOTEL, LLC v. SALZER.
    (767 SE2d 750)
   McFadden, Judge.

This case concerns the individual liability of an agent, Joshua Salzer, under a contract with Courtland Hotel, LLC d/b/a Sheraton Atlanta Hotel (“the hotel”). The contract identified the agent’s corporate principal by an acronym rather than the principal’s full name. The trial court held that, as a matter of law, Salzer was not individually liable for breach of the contract, granting summary judgment to Salzer and denying summary judgment to the hotel on the hotel’s breach of contract action. Because the undisputed evidence shows that the parties did not intend for Salzer to be individually liable under the contract, and the variance in the principal’s name is merely a misnomer, we affirm.

A trial court may grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” Woodcraft by MacDonald v. Ga. Cas. and Surety Co., 293 Ga. 9, 10 (743 SE2d 373) (2013) (citation and punctuation omitted).

The evidence relevant to the dispositive issues in this case is undisputed. In September 2012, Convention Organizing and Leadership Team, Inc. (“the corporation”) was incorporated in North Carolina. The principals of the corporation referred to it by the acronym “C.O.L.T., Inc.” both among themselves and in their dealings with Salzer, an event coordinator whom the corporation engaged to book rooms at the hotel for a “My Little Pony” fan convention that the corporation planned to hold over several days in January 2013. Salzer had worked with the hotel before, performing similar services on behalf of other clients.

On October 10, 2012, Salzer signed the contract at issue. The contract identified the parties as the hotel and “C.O.L.T., Inc.” The contract required the hotel to provide “C.O.L.T., Inc.” with guest rooms and function space for the convention, and it required “C.O .L.T., Inc.” to make certain payments to the hotel if it cancelled the convention. Salzer signed the contract on behalf of “C.O.L.T., Inc.” in the capacity of “Meeting Coordinator/Acting Chairman.” The corporation had authorized Salzer to represent himself as the “Chairman” of the event at the hotel, but Salzer was not a shareholder, director or officer of the corporation.

Subsequently, the principals of the corporation cancelled the event, and the hotel filed its “Complaint on Contract and Account” against Salzer. The hotel did not name the corporation as a defendant in that action. It moved for summary judgment against Salzer, arguing that he was individually liable under the contract because he signed the contract on behalf of a nonexistent entity. Salzer opposed the hotel’s motion on the ground that he was not a party to the contract but signed it as an agent for the corporation. He also moved to dismiss the complaint for failure to state a claim or, alternatively, to compel arbitration of the dispute pursuant to an arbitration clause in the contract. The trial court denied the hotel’s motion for summary judgment and, instead, granted summary judgment to Salzer on the ground that “the undisputed evidence show[ed] that the use of the name ‘C.O.L.T., Inc.’ in the contract was a misnomer and that Convention Organization and Leadership Team, Inc. is the corporation intended to be bound under the contract.” See generally Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173) (2010) (trial court’s consideration of matters outside pleadings in effect converts motion to dismiss to motion for summary judgment).

We find no error in the trial court’s rulings. While “an agent who makes a contract without disclosing that he is acting as an agent or without identifying his principal... will become individually liable on the contract[,]” Action Concrete v. Focal Point Engineering, 296 Ga. App. 567, 569 (675 SE2d 303) (2009) (citation and punctuation omitted), the undisputed evidence shows that Salzer both disclosed to the hotel that he was acting as an agent and sufficiently identified his principal.

The language of the contract disclosed that Salzer was acting as an agent rather than on his own behalf. The contract purported on its face to be that of a principal, identifying an entity (not Salzer) as the contracting party and bearing Salzer’s signature in a representative capacity. Cf. Kingsberry Homes v. Findley, 242 Ga. 362, 363 (249 SE2d 51) (1978) (defendant was entitled to summary judgment in action on integrated contract that on its face did not indicate that claimed agent, who signed contract, was defendant’s representative or that defendant was that person’s principal). Moreover, the undisputed evidence of Salzer’s prior dealings with the hotel on behalf of other clients is circumstantial evidence demonstrating the hotel’s understanding of Salzer’s role. The hotel has pointed to no evidence that it thought Salzer was acting on his own behalf, or that either party intended to bind Salzer individually to the contract.

Salzer’s identification of his principal by the name “C.O.L.T., Inc.” did not make him individually liable on the contract. It is true that an undertaking by an individual in a fictitious name is the obligation of the individual. Crolley v. Haygood Contracting, 201 Ga. App. 700, 702 (3) (411 SE2d 907) (1991); see OCGA § 14-2-204 (imposing liability upon “[a]ll persons purporting to act as or on behalf of a corporation, knowing there was no incorporation”). “However, where the individual in question purported to act on behalf of a corporation which did in fact exist, the fact that the corporation’s name was incorrectly set forth on the contract will not necessarily result in the imposition of personal liability against him.” Pinson v. Hartsfield Intl. Commerce Center, 191 Ga. App. 459, 461 (382 SE2d 136) (1989). “[A] mere misnomer of a corporation in a written instrument is not material or vital in its consequences, if the identity of the corporation intended is clear or can be ascertained by proof.” CML-GA Smyrna v. Atlanta Real Estate Investments, 294 Ga. 787, 789 (2) (756 SE2d 504) (2014) (citation and punctuation omitted); Hawkins v. Turner, 166 Ga. App. 50, 51-52 (1) (303 SE2d 164) (1983) (citations, punctuation and emphasis omitted). Accordingly, “[e]rror in the use of the corporate name will not be permitted to frustrate the intent which the name was meant to convey,” which intent can be proved through parol evidence. Pinson, 191 Ga. App. at 461 (citation and punctuation omitted).

The name Salzer used for his principal in the contract- — “C.O.L.T., Inc.” • — • was an acronym comprised of the first letters of the words in the principal’s full, official name — “Convention Organization and Leadership Team, Inc.” We are not persuaded by the hotel’s argument that these two names differed so substantially that the acronym must be considered a fictitious name rather than an abbreviation. See generally Robinson v. Reward Ceramic Color Mfg., 120 Ga. App. 380, 381 (2) (170 SE2d 724) (1969) (considering whether variance in corporate name was substantial and whether it appeared from evidence that the names were two separate corporations in determining whether variance was misnomer). Rather, the acronym was a misnomer that abbreviated the corporation’s full name. Compare Pinson, 191 Ga. App. at 461-462 (“Pinson Air Freight, Inc.” was misnomer of “Pinson Air Freight of Chattanooga, Inc.”), and Hawkins, 166 Ga. App. at 51-52 (“Hawkins Plumbing Co., Inc.” was misnomer of “Hawkins Heating & Plumbing Co., Inc.”), with Zuberi v. Gimbert, 230 Ga. App. 471, 473 (1) (496 SE2d 741) (1998) (“ATM Manufacturing, Inc.” was not misnomer of either “ATM America Corp.” or “ATM Enterprises, Inc.” in part because difference between names was “substantial and [did] not involve the mere abbreviation of a longer, official corporate name”) and Jones v. Burlington Indus., 196 Ga. App. 834, 837 (2) (397 SE2d 174) (1990) (“RBJ Textiles” and “RBJ Textiles, Inc.” were not misnomers of “RONJON, Inc.” in part because there was “substantial variance in name content” and the names “on their face appear to be completely separate legal entities”) (emphasis in original).

Decided October 6, 2014

Reconsideration denied December 8, 2014

Stokes Lazarus & Carmichael, William K. Carmichael, N. Charles Campbell, for appellant.

Kitchens New Cleghorn, Jonathan D. Forbes, for appellee.

Because the undisputed evidence shows that Salzer signed the contract on behalf of a corporate principal, identified in the contract by a misnomer, he is not individually liable under the contract, and the trial court did not err in denying the hotel’s motion for summary judgment and instead granting summary judgment to Salzer.

Judgment affirmed.

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