author: Dillard, Judge. ANDREWS, Presiding Judge,

text:
    A13A2223.
    HINES v. RAILSERVE, INC.
    (757 SE2d 280)
   Dillard, Judge.

In this civil tort action, Colby Hines sued his employer, Railserve, Inc., alleging that the company is liable for the serious brain injury he suffered when a potato cannon, constructedby several of his co-workers on company premises, exploded during an attempt to fire it. Following discovery, Railserve moved for summary judgment, which the trial court granted. On appeal, Hines argues that the trial court erred in granting summary judgment because genuine issues of fact remain as to whether Railserve is liable under the theories of respondeat superior, Section 317 of the Restatement (Second) of Torts, and negligent supervision. For the reasons set forth infra, we agree that the trial court erred in granting summary judgment, and, therefore, reverse.

Viewed in the light most favorable to the nonmovant, the record shows that in September 2010, Hines was employed by Ameritrack, a division of Railserve, and specifically worked as a member of a railroad track installation and maintenance crew that operated out of Ameritrack’s facility (the “yard”) in El Dorado, Kansas. At around 5:00 p.m. on September 14, 2010, Hines’s crew—which included supervisor DeWayne Taylor and several other employees—finished its off-site track work for the day and returned to the yard. And upon their return, DeWayne Taylor, Hines, and several other members of the crew went to the machine shop located near the back of the yard to visit with Tim Taylor, DeWayne’s brother and the shop’s foreman, and some of the other shop mechanics—all of whom were still on the clock. There, some of the crew members began drinking beer that they had brought with them.

At around 6:15 p.m., Jeff Heisen, the branch manager of the facility, stopped by the shop on his way out and spoke with the group gathered there. And although Heisen noticed that some of the employees were drinking beer, he did not ask anyone to stop drinking or direct those no longer on the clock to leave. However, shortly after leaving, Heisen called Brandon Dawson, another shop foreman who had been socializing with the Taylors and Hines’s crew at the time Heisen left, and told him to make sure that all off-duty employees left the yard. But Dawson did not relay this request, and the crew remained on the premises.

Then, sometime around 7:00 p.m., a few of the shop mechanics and maintenance crew retrieved a potato cannon that they had built a few days earlier using Railserve materials (and which had been stored in the shop). After placing the cannon on top of a trailer just outside of the shop, everyone in the group—including Hines—began looking for materials to fire, and the cannon ultimately was packed with gun powder and pieces of metal. DeWayne Taylor then lit the cannon’s fuse with a sparkler, at which point he and the rest of the group, other than Hines, took cover inside the shop. Indeed, rather than joining the retreat to cover, Hines climbed up a nearby fire escape and began recording the event with the video-recorder on his smart phone. But instead of firing its projectiles, the cannon exploded, and a piece of the resulting shrapnel struck Hines in the head, severely injuring him.

Thereafter, Hines filed a lawsuit against Railserve in the State Court of Clayton County, alleging that Railserve was liable for his injuries under theories of respondeat superior, § 317 of the Restatement (Second) of Torts, and negligent supervision. Railserve answered and, following discovery, filed a motion for summary judgment, arguing that all of Hines’s theories of recovery failed as a matter of law. And after Hines responded, the trial court held a hearing on the matter, and, applying Kansas law, it granted summary judgment in favor of Railserve as to all of Hines’s claims. This appeal follows.

1. Hines first contends that the trial court erred in granting summary judgment, arguing that genuine issues of material fact remain as to whether Railserve is liable under the theory of respondeat superior. We agree.

Under Kansas law, the phrase “imputed negligence” or “respondeat superior” refers to the doctrine which places upon one individual responsibility for the negligence of another. Specifically, the doctrine of respondeat superior makes an employer responsible for the negligent actions of its employees, but only for acts that are for the purpose of the employer’s business or acts that are within the scope of the employer’s authority. And an employee acts within the scope of employment if “he or she performs services for which he or she has been employed or does anything reasonably incidental to the employment.” In fact, the test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, “but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it.”

In granting Railserve’s motion for summary judgment, the trial court acknowledged that there was evidence that Tim Taylor and Brandon Dawson had supervisory responsibilities at the Ameritrack yard and that both knew about the potato cannon. Additionally, there was evidence that Heisen—who had supervisory authority over all employees at the yard—directed Dawson to have off-the-clock employees leave the yard. Nevertheless, the trial court ruled that Hines’s respondeat-superior claim failed as a matter of law because neither Tim Taylor nor Dawson, as agents of Railserve, had a duty to prevent Hines from being harmed. However, contrary to the trial court’s assertion, the rule in Kansas is simply that “an employer has the duty not to expose his employees to perils which the employer may guard against by the exercise of reasonable care.” And here, there are certainly genuine issues of material fact as to whether both Tim Taylor and Dawson breached that duty by failing to direct off-the-clock employees, including Hines, to stop drinking beer, to stop attempting to detonate a dangerous explosive device, and to leave the premises. Accordingly, the trial court erred in granting summary judgment to Railserve as to Hines’s respondeat-superior claim.

2. Hines also contends that the trial court erred in granting summary judgment because genuine issues of material fact remain as to whether Railserve is liable pursuant to § 317 of the Restatement (Second) of Torts. Again, we agree.

The Restatement (Second) of Torts § 317, titled the “Duty of Master to Control Conduct of Servant,” provides as follows:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.

In summary, § 317 recognizes that “the‘special relationship’of employer and employee imposes a duty on the employer to exercise control over the employee acting outside the scope of employment under limited circumstances.”

In the case sub judice, the trial court acknowledged that employees of Railserve, who had supervisory responsibilities, were aware of the potato cannon and that off-duty employees were drinking beer at the shop shortly before the accident. But the trial court concluded that Hines’s claim failed as a matter of law because it held that § 317 of the Restatement does not render an employer liable for its employee’s negligence when the resulting injury is to another employee. Specifically, the trial court held that “[t]he plain language [of § 317] connotes that Plaintiff cannot be both a ‘servant’ and an ‘other’ from whom the master is under a duty to protect” and contemplates no duty for the master to protect servants from their own negligent acts.

We are not persuaded that the trial court’s strained reading of § 317 is required by its “plain language.” The term “other” is defined as “that one of two which remains after one is taken, defined, or specified; the remaining of two.” But contrary to the trial court’s assertion, the use of the term “other” in the context of this section is merely used to distinguish all remaining persons, i.e., those that could suffer the harm from the servant responsible for causing the harm. Indeed, “others” is the simplest and plainest term the drafters of § 317 could possibly use to draw such a distinction. Additionally, the trial court’s assertion that a plaintiff cannot recover under § 317 when he contributes to his own harm is simply not supported by any of the language contained in that section of the Restatement. Thus, we do not agree that Hines’s status as a servant precludes him from being an “other” under § 317.

Further, the trial court’s reading of the Restatement (Second) of Torts § 317 is inconsistent with the Restatement (Second) of Agency § 213 (d), which is to be read in conjunction with § 317, and which provides as follows:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: ... in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.

In fact, Comment b to § 213 further provides that

[t]he rule stated in this Section applies to the liability of the master to his servants, the master being subject to liability to them for his own negligence, even though the act immediately causing the harm is that of a fellow servant for whose negligence to them the master is not liable.

Accordingly, even if the language of § 317 could possibly be construed as ambiguous on this particular point, it becomes manifestly clear, when read in conjunction with the Restatement (Second) of Agency § 213, that the use of the term “other” in § 317 includes fellow servants such as Hines.

Moreover, although there does not appear to be any Kansas law specifically discussing whether § 317 imparts a dutyupon an employer to protect one employee from being harmed by another employee, cases from other jurisdictions have, in fact, acknowledged such a duty. Given these circumstances, we conclude that the trial court erred in granting summary judgment in favor of Railserve as to Hines’s § 317 claim.

3. Hines further contends that the trial court erred in granting summary judgment because genuine issues of material fact remain as to whether Railserve is liable under the theory of negligent supervision. Once again, we agree.

Under Kansas law, negligent supervision is a recognized cause of action, and its focus is upon the actions of someone other than the person whose negligence caused the injury. Specifically, negligent supervision includes not only the duty to supervise, “but also includes the [duty] to control persons with whom the defendant has a special relationship including the defendant’s employees or persons with dangerous propensities.” Indeed, liability under a negligent-supervision claim results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. Furthermore, and unlike many other jurisdictions, negligent supervision in Kansas is a tort separate and distinct from respondeat superior in that liability is not imputed but instead runs directly from the employer to the person injured.

And in this matter, the trial court concluded that Hines’s negligent-supervision claim failed as a matter of law based on its finding that there was no evidence that Railserve should have foreseen that DeWayne Taylor had a propensity for creating and detonating explosives and, citing Schmidt v. HTG, Inc., based on its finding that the employees who detonated the cannon were off-duty at the time of the incident. But it is not necessary that “the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer.” And furthermore, whether risk of harm is reasonably foreseeable is “a question to be determined by the trier of fact.” Here, contrary to the trial court’s assertions, there was evidence that two Railserve supervisors, Tim Taylor and Brandon Dawson, were on duty at the time Hines was injured and were very much aware of both the construction of the potato cannon and of the fact that DeWayne Taylor and other members of the off-duty maintenance crew intended to fire it at the time they did so. Accordingly, genuine issues of material fact precluded a grant of summary judgment on those grounds asserted by the trial court.

Finally, the trial court also supported its decision to grant summary judgment as to Hines’s negligent-supervision claim by adopting the holding of Beam v. Concord Hospitality, Inc. There, the United States District Court in Kansas, relying on the Supreme Court of Kansas’s opinion in Balin v. Lysle Rishel Post No. 68, concluded that Kansas does not recognize the torts of negligent retention or negligent supervision in instances when the plaintiff is an employee alleging tortious conduct by another employee. But in Balin, the question of whether the plaintiff was also an employee of the defendant hotel was disputed. And given this dispute, the Supreme Court of Kansas ruled that if the plaintiff was not an employee, his negligent-retention claim failed because

the evidence now under consideration does not show that the master corporation hired an incompetent or unfit servant or employee, or that it retained him in employment after it knew or should have known of his incompetence or unfitness—it does not even show the servant incompetent or unfit.

The Court then further ruled that if the plaintiff was an employee, his claim still failed because

the act of shooting which caused plaintiff’s injuries was not authorized by the master corporation or was not done by its servant and [fellow employee] to advance its interests, and in such circumstances the rule is that the master corporation is not liable in damages to one servant for injuries inflicted on him by the act of his fellow servant.

Focusing on this second part of the Balin analysis, the district court in Beam reasoned that “it appears that the Supreme Court of Kansas recognized a distinction between third parties and employees and concluded that only third parties could seek recovery under a theory of negligent retention.” In doing so, however, the district court seemingly failed to recognize that the latter part of the Balin opinion regarding the fellow-servant rule is no longer applicable within the context of negligent hiring, retention, or supervision claims in light of the fact that “[liability exists under either of these doctrines . . . despite the fact the direct cause of injury to the injured person is the negligent or intentional acts of an employee acting outside the scope of his employment.” Moreover, the legitimacy of Balin as persuasive authority in this regard is also rendered suspect by the fact that it conflates the doctrines of negligent retention and respondeat superior—an anachronistic analysis given that those two torts are separate and distinct claims under Kansas law.

Nevertheless, but importantly, it does not appear that the state courts of Kansas have followed the Beam decision, and as such, we are not bound by it. Furthermore, the Beam opinion stands in stark contrast to the Eighth Circuit’s opinion in Perkins v. Spivey, which held that

[a] cause of action does exist under Kansas common law when employers negligently hire or retain employees they know or should know are incompetent or dangerous when another employee is physically injured by the dangerous employee or is emotionally harmed such that immediate physical injury is the result.

Finally, and as the district court recognized in the Beam opinion, the general language of the Supreme Court of Kansas’s decision in Kansas State Bank & Trust Co. can be read as not precluding an employee’s negligent-supervision claim against an employer based on the tortious conduct by a fellow employee. And given all of these circumstances, we decline to restrict such claims in a manner that the state courts of Kansas have yet to adopt. Accordingly, we conclude that the trial court likewise erred in granting summary judgment in favor of Railserve as to Hines’s negligent-supervision claim, and we reverse that decision.

Judgment reversed.

McMillian, J., concurs. Andrews, P. J., concurs specially.

ANDREWS, Presiding Judge,

concurring specially.

Colby Hines sued his former employer, Railserve, Inc., a Georgia corporation, for damages (including punitive damages) as a result of severe injuries he suffered when, as stated in his complaint, “[a] pipe bomb constructed with the knowledge and participation of employees of Railserve who were in the course and scope of employment of Railserve at the time, exploded scattering shrapnel and sending a shard into and through [his] skull----” Hines stated in his complaint — and the record clearly shows —■ that the pipe bomb exploded on the Railserve premises located in El Dorado, Kansas on September 14, 2010, shortly after Hines had finished his work day. Hines omitted from his complaint — but the record clearly shows — the following: Hines was aware of the existence of the pipe bomb (made from a metal pipe about three feet long and several inches in diameter) before it exploded. Hines and other Railserve employees and supervisors (some still working and others finished working for the day) knowingly participated in “horseplay” with the pipe bomb as they loaded it with a metal object and explosive powder. Some of the group, including Hines, were drinking beer at the time. Hines placed the metal object in the pipe bomb. Hines handed the fuse to light the pipe bomb to one of his co-workers and watched as the co-worker lit the fuse on the bomb. Unlike his co-workers, who ran for cover before the pipe bomb exploded, Hines climbed up a nearby fire escape about 15 feet above the pipe bomb where he knowingly exposed himself to the explosion while attempting to video the explosion with his mobile smart phone for his own entertainment. After the pipe bomb exploded, co-workers found Hines on the fire escape with a large hole in his head caused by flying shrapnel from the bomb.

Despite these facts, I nevertheless agree with the majority opinion that the trial court erred by granting summary judgment to Railserve on Hines’s negligence causes of action on the limited grounds asserted in the motion for summary judgment. Hines’s complaint alleged in three causes of action that Railserve’s negligence caused his injuries: (1) that Railserve employees negligently failed to stop the horseplay with the pipe bomb, and their negligence was imputed to Railserve under the doctrine of respondeat superior; (2) that Railserve was directly liable for its negligent failure to stop the horseplay under principles set forth in Restatement (Second) of Torts, § 317 imposing a duty to control employees on its premises acting outside the scope of employment; and (3) that Railserve was directly liable for negligent failure to supervise employees involved in the horseplay. I concur with the majority opinion that Railserve was not entitled under applicable Kansas substantive law to summary judgment just because Hines was a co-worker who was negligent in any degree, or just because some of the horseplay at issue occurred outside the scope of employment and involved negligent acts by other co-workers.

But given the facts showing that Hines knowingly participated in horseplay with the pipe bomb, loaded it with metal, helped light the fuse, and recklessly exposed himself to the exploding bomb, I cannot concur in the majority opinion without stating my view that, under applicable Kansas law, Hines’s actions were the sole proximate cause of his own injuries. Under the facts and law, Hines has no business collecting a nickel in damages from Railserve, or putting Railserve to the expense of a jury trial, despite any evidence that Railserve negligently supervised its premises.

Because the pipe bomb explosion and the injuries at issue occurred in Kansas, the majority opinion correctly finds that the Georgia rule of lex loci delicti requires the application of Kansas substantive law to Hines’s negligence claims against Railserve. Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809 (621 SE2d 413) (2005); Lloyd v. Prudential Securities, Inc., 211 Ga. App. 247, 248 (438 SE2d 703) (1993). Hines’s negligence claims are governed by Kansas’s comparative negligence statute set forth in Kan. Stat. Ann. § 60-258a which requires comparison of the percentages of fault of all alleged wrongdoers. Under the Kansas statute, Hines cannot recover against Railserve on his negligence claims if he is found to be 50 percent or more at fault. Martell v. Driscoll, 302 P3d 375, 383 (Kan. 2013); Negley v. Massey Ferguson, Inc., 625 P2d 472, 477 (Kan. 1981). Although determining the amount of comparative fault attributable to negligent parties is treated in Kansas as a question of fact, “there is an exception to treating comparative fault as a fact question.” Martell, 302 P3d at 385-386. Proof that the defendant’s negligence was a proximate cause of the alleged harm is an essential element of the plaintiff’s claim and is ordinarily a question of fact. Hale v. Brown, 197 P3d 438, 440-441 (Kan. 2008). But where undisputed facts susceptible of only one inference show as a matter of law that the plaintiff’s own negligence was an intervening cause which superseded the defendant’s negligence, the plaintiff’s negligence breaks the causal connection between the defendant’s negligence and the plaintiff’s harm and operates as the sole proximate cause of the harm. Martell, 302 P3d at 386; Puckett v. Mt. Carmel Regional Medical Center, 228 P3d 1048, 1060-1061 (Kan. 2010); Hale, 197 P3d at 441. In that case, the plaintiff’s intervening cause absolves the defendant of liability for admitted negligence and there is no apportionment of comparative fault. Puckett, 228 P3d at 1061.

Decided March 28, 2014

Conley Griggs Partin, Cale H. Conley, Richard A. Griggs, Bondurant, Mixson & Elmore, Michael B. Terry, Robert L. Ashe III, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Y. Kevin Williams, Robert P. Marcovitch, Wendell B. Franklin, for appellee.

The undisputed facts in this case show as a matter of law that Hines’s recklessly negligent actions were an intervening cause which operated as the sole proximate cause of his injuries and absolved Railserve of any liability for its alleged negligence. I concur specially only because Railserve failed to assert this defense on summary judgment.

        Ellis v. Ingle, 306 Ga. App. 674, 675 (703 SE2d 104) (2010) (noting that summary adjudication is only proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law”); see OCGA § 9-11-56 (c).

        Ellis, 306 Ga. App. at 675.

       Hines’s complaint states that Railserve’s principal place of business is located in Clayton County, Georgia, and Railserve has not contested jurisdiction or venue.

       Although this suit was filed in Georgia, the parties agreed and the trial court properly held that Kansas substantive law as to liability applies pursuant to “lex loci delicti,” which remains the choice of law rule in Georgia. See Dowis v. Mud Slingers, Inc., 279 Ga. 808, 816 (621 SE2d 413) (2005). Under “this traditional rule, a tort action is governed by the substantive law of the state where the tort was committed.” Id. at 809.

        Brillhart v. Scheier, 758 P2d 219, 221 (Kan. 1988); accord Schmidt v. Martin, 510 P2d 1244, 1246 (Kan. 1973).

        Brillhart, 758 P2d at 221.

        Prugue v. Monley, 28 P3d 1046, 1050 (Kan. App. 2001).

        Id. (punctuation omitted).

        Smith v. Massey-Ferguson, Inc., 883 P2d 1120, 1134 (Kan. 1994); see also Riggs v. Missouri-Kansas-Texas R. Co., 508 P2d 850, 854 (Kan. 1973) (same); Wrinkle v. Norman, 301 P3d 312, 313 (Kan. 2013) (“Alandowner’s duty toboth invitees and licensees is one of reasonable care under all the circumstances.”).

        See Smith, 883 P2d at 1134-35 (holding that both employer and supervising co-employee of injured plaintiff owed duty to provide a safe workplace).

       Restatement (Second) of Torts § 317 (1965).

        Meyers v. Grubaugh, 750 P2d 1031, 1034 (Kan. 1988).

       The Compact Oxford English Dictionary 1231 (2d ed. 1991). Cf. OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words____”); Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995) (noting that courts may turn to a dictionary for the plain, ordinary, and popular sense of a word in interpreting contracts).

        See Restatement (Second) of Agency § 213 cmt. a (1958) (“The rule stated in this Section is not based upon any rule of the law of principal and agent or of master and servant. It is a special application of the general rules stated in the Restatement of Torts and is not intended to exhaust the ways in which a master or other principal may be negligent in the conduct of his business.”).

        Id. § 213 (d) (1958).

        See id. § 213 (d) cmt. b.

        See Mullen v. Topper’s Salon & Health Spa, Inc., 99 FSupp.2d 553, 556-57 (E.D. Pa. 2000) (noting that in Pennsylvania, an employer may be liable pursuant to the Restatement (Second) of Torts § 317 when employer failed to exercise ordinary care to prevent harm to an employee by another employee acting outside the scope of his employment and occurring on the employer’s premises); Mandy v. Minnesota Mining & Manufacturing, 940 FSupp. 1463, 1471 (II) (D. Minn. 1996) (holding that pursuant to Minnesota law, § 317 was applicable to hold employer liable when one employee, acting outside the scope of his employment but on employer’s premises, harassed another employee); Platson v. NSM, Am., Inc., 748 NE2d 1278, 1285-86 (Ill. App. Ct. 2001) (holding that company intern who was allegedly assaulted by company employee stated a proper claim under Restatement (Second) of Torts § 317); Kerans v. Porter Paint Co., 575 NE2d 428, 432-33 (Ohio 1991) (holding that under Restatement (Second) of Torts § 317, an employer may be liable for one employee’s workplace sexual harassment of another employee); see also Favors v. Alco Mfg. Co., 186 Ga. App. 480, 483 (3) (367 SE2d 328) (1988) (holding that “[a] cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment” (punctuation omitted)).

        Marquis v. State Farm Fire & Cas. Co., 961 P2d 1213, 1222 (Kan. 1998).

        Id. at 1223; see Nero v. Kan. State Univ., 861 P2d 768, 772-73 (Kan. 1993).

        Kan. State Bank & Trust Co. v. Specialized Transp. Svcs., Inc., 819 P2d 587, 598 (Kan. 1991).

        Marquis, 961 P2d at 1225.

       961 P2d 677, 695 (Kan. 1998) (holding that in Kansas liability of the employer for negligent supervision is predicated on the actions against the customer or co-worker occurring on the working premises and during the time employment services were normally rendered).

        Kan. State Bank & Trust Co., 819 P2d at 598.

        Id.

        Compare id. at 598-99 (holding that genuine issues of material fact existed as to whether defendant should have foreseen that an employee posed a danger to a plaintiff/student, who the employee sexually assaulted, and, thus, summaryjudgment as to plaintiff’s negligent retention and supervision claim was not warranted), with Schmidt, 961 P2d at 694-96 (holding that summary judgment in favor of defendant/employer was properly granted given that employee’s sexual assault and murder of former co-employee occurred well after employee’s work hours and did not occur on employer’s premises).

       920 FSupp. 1165 (D. Kan. 1996).

       280 P2d 623 (Kan. 1955).

        See Beam, 920 FSupp. at 1167-68.

       280 P2d at 630.

       Id.

       Id.

       920 FSupp. at 1168.

        Plains Res., Inc. v. Gable, 682 P2d 653, 662 (Kan. 1984).

        See Marquis, 961 P2d at 1225 (noting that the torts of negligent hiring, retention, or supervision are recognized in Kansas as separate torts that are not derivative of the employee’s negligence).

       911 F2d 22 (8th Cir. 1990). We recognize that the district court in Beam considered Perkins but found it unpersuasive. See Beam, 920 FSupp. at 1167.

        Perkins, 911 F2d at 30 (II) (A).

        See 920 FSupp. at 1165 (noting that the general language of the Supreme Court of Kansas’s decision in Kansas State Bank & Trust Co. “could be read as supportive of the plaintiff’s position”).

        See Kan. State Bank & Trust Co., 819 P2d at 598 (noting that liability under a negligent-supervision claim results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor); see also Schmidt, 961 P2d at 695 (holding that in Kansas liability of the employer for negligent supervision is predicated on the actions against the customer or co-worker occurring on the working premises and during the time employment services were normally rendered).

       Hines admitted that he had no memory of the events surrounding the explosion. Nevertheless, he testified in his deposition that he did not load the pipe bomb or help light the fuse “[b]ecause I wouldn’t do that.” In the face of eyewitness testimony that Hines did, in fact, do those things, Hines’s unsupported belief or opinion to the contrary was speculation without probative value. Hassell v. First Nat. Bank, 218 Ga. App. 231, 234 (461 SE2d 245) (1995); Whiteside v. Decker, Hallman, Barber & Briggs, P. C., 310 Ga. App. 16, 19 (712 SE2d 87) (2011).

       Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 312 P3d 345, 355 (Kan. 2013).

       In its answer to Hines’s complaint, Railserve asserted the defense that any alleged negligence on its part was not a proximate cause of Hines’s injuries.


source: Caselaw Access Project

author: Branch, Judge. PHIPPS, Chief Judge,

license: Public Domain

text:
    A13A2241.
    OWENS v. THE STATE.
    (757 SE2d 288)
   Branch, Judge.

On appeal from his conviction for possession of methamphetamine and other crimes, Stanli Owens argues that the evidence was insufficient as to the methamphetamine charge and that the trial court erred in its instructions to the jury. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence at trial showed that on December 11, 2005, at about 1:30 a.m., Officer Kem Pugh of the Donalsonville Police Department observed the left and right blinker lights of a van alternating and the van drive through an intersection after hesitating. Officer Pugh also noticed that the van’s tag light was inoperable. Officer Pugh called for backup and initiated a stop of the van, parking his patrol car directly behind the van. Officer Douglas Owens arrived as Officer Pugh was exiting his car and walking to the driver’s side door of the van; Officer Owens parked his vehicle behind Officer Pugh’s and activated his overhead lights.

There were three occupants of the van: the driver, a front seat passenger, and a passenger who sat on the floor in the back of the vehicle. Officer Pugh asked the driver, whom Officer Pugh identified at trial as the defendant Owens, for his driver’s license and proof of insurance. The officers determined that Owens’s license was suspended, and they arrested him. The officers handcuffed Owens, who then emptied his own pockets. Officer Pugh patted Owens down, found nothing, and placed him in Officer Owens’s patrol car. The officers searched the van but found no contraband there. Before he was arrested, Owens informed Officer Pugh that he and the front seat passenger, Robby Johnson, had earlier consumed alcoholic beverages and that Johnson owned the van but was too drunk to drive. Officer Owens testified that he knew both passengers and that their licenses to drive had been suspended. Neither passenger was arrested or otherwise detained. The back passenger was allowed to walk to his mother’s residence, which was nearby, so that she could return to the scene and drive the van away.

Video recordings of the stop were played for the jury. One video was taken from the camera in Officer Pugh’s patrol vehicle; the other was taken from the camera in Officer Owens’s patrol vehicle. The first video recording showed that moments after refusing to take a breath test, but just before being placed under arrest for DUI and driving without a valid license, Owens tossed or dropped a white object onto the ground just behind the right foot of the officer placing Owens under arrest. The same video recording also showed that within a few moments after his arrest, Owens began calling out to passenger Johnson; asked the officer whether he could “talk to [his] boys” before sitting in the patrol car; called out to Johnson again, asking him to “come here”; and then attempted to kick something under the patrol car. A few minutes later, as the same officer placed a handcuffed Owens in the rear driver’s side seat of the patrol car, Owens made movements with his hands consistent with discarding another object. Some time after the officer closed the rear driver’s side door, Johnson walked by that side but some distance away from the patrol car and made a gesture at Owens.

The second recording shows Johnson walking toward the patrol car after Owens had been placed in the back seat. As Johnson approached, Owens called out, “Robby, hey, look”; when Johnson continued walking past the car, Owens responded by cursing and calling Johnson an “idiot.”

Later, as both officers walked away from the van and toward the patrol vehicles in preparation for leaving the scene, Officer Owens shone his flashlight on the ground and found a clear plastic bag containing a white substance that later tested positive for methamphetamine. The bag was found on the ground outside the door of the patrol car through which Owens had been placed.

Owens was charged with methamphetamine possession, driving with a suspended license, and defective equipment. A jury found Owens guilty of all three charges, and he was convicted. His motion for new trial was denied.

1. Owens first argues that the evidence was insufficient to sustain his conviction for possession of the methamphetamine found outside the door of the patrol car. We disagree.

In a drug possession case based upon circumstantial evidence, the State must adduce evidence establishing a “meaningful connection” between the defendant and the drugs. In re E. A. D., 271 Ga. App. 531, 532 (610 SE2d 153) (2005). “Mere presence, without proof of participation, is insufficient to support a conviction. Rather, the state must show that the defendant had the power and intent to exercise control over the [drugs].” (Footnote omitted.) Stevens v. State, 245 Ga. App. 237, 238 (1) (537 SE2d 688) (2000). Further, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.

[(Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citation omitted.) Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).

Under these authorities, the evidence was sufficient to sustain Owens’s conviction for possession of the methamphetamine at issue. Specifically, it was for the jury to decide whether the only reasonable hypothesis as to the origin of the drugs found just outside the door of the patrol car was that Owens had dropped them there. Given the evidence that Owens began dropping objects and calling out to his companions at the moment his arrest was announced, and that he continued his efforts to alert those passengers as he sat in handcuffs in the back of the patrol car, this jury was authorized to conclude that Owens discarded the bag of methamphetamine later found beside the rear driver’s side door of the patrol car and that his attempts to enlist his passengers’ help in kicking discarded drugs under or away from the same side of the patrol car were unsuccessful. Likewise, the jury had some evidence to support its verdict because Owens was the only occupant of the car near the methamphetamine at the time it was dropped and had an exclusive opportunity for control of the drug. It follows that Owens’s conviction for methamphetamine possession must be affirmed. See OCGA § 16-13-30 (a) (outlawing possession of methamphetamine); Taylor v. State, 305 Ga. App. 748, 751 (1) (700 SE2d 841) (2010) (circumstantial evidence of possession was sufficient to authorize a conviction for possession of methamphetamine “and to reject as speculative and unreasonable the hypothesis that someone else discarded the drugs in [a] patrol car”) (citations omitted).

2. Owens also argues that the trial court erred when it charged the jury on the crime of methamphetamine possession without explaining that the State had the burden of proving that Owens had spatial proximity to and had exercised control over the drugs at the time they were found. We disagree.

The record shows that the trial court instructed the jury that the State was obligated to prove Owens’s guilt, as to each essential element of the charged offenses, including intent, beyond a reasonable doubt; that a defendant’s mere presence at the scene of a crime did not authorize a guilty verdict “unless the evidence shows beyond a reasonable doubt that such person committed the alleged crime”; and that a guilty verdict based on circumstantial evidence “must not only be consistent with the theory of guilt, but also exclude every other reasonable theory other than the guilt of the accused.” The trial court then charged the jury that “it is unlawful for any person to possess or have under one’s control any quantity of methamphetamine, which is a controlled substance.” There is no indication that Owens asked for any specific instruction on the topics of his proximity to or control over the contraband at issue.

This record shows that the trial court instructed the jury on the elements of methamphetamine possession and on the law of circumstantial evidence, mere presence and reasonable doubt. Because “[u]pright and intelligent jurors would have no difficulty in understanding the meaning of a simple word like ‘possession,’ ” a trial court has no responsibility to give any detailed definition of the term, even when the gravamen of the case is a drug charge based on constructive possession. (Punctuation omitted.) Sullivan v. State, 204 Ga. App. 274, 276 (2) (418 SE2d 807) (1992); see also Donaldson v. State, 180 Ga. App. 879 (1) (350 SE2d 849) (1986). Georgia courts have also held repeatedly that “ ‘mere presence at the scene of the crime is not a recognized defense to a criminal charge. Rather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.’ ” (Punctuation omitted.) Russell v. State, 289 Ga. App. 789, 792 (2) (658 SE2d 400) (2008), quoting Kelley v. State, 279 Ga. App. 187, 189 (2) (630 SE2d 783) (2006) and Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356) (1979). Finally, and even when a defendant requests a charge on spatial proximity, a trial court does not err in refusing to give such a charge when the jury instructions as a whole, including charges on requisite intent and a mere conjecture of guilt, “adequately covered that principle.” (Citation omitted.) Smoot v. State, 316 Ga. App. 102, 115 (7) (729 SE2d 416) (2012). Owens’s assertions to the contrary thus lack merit.

3. All outstanding motions in the case are denied.

Judgment affirmed.

Andrews, P. J., Barnes, P. J., and Ray, J., concur. Phipps, C. J., Ellington, P. J., and Miller, J., concur in part and dissent in part.

PHIPPS, Chief Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 2 and 3 of the majority opinion, but respectfully dissent to Division 1 because I believe that the circumstantial evidence was insufficient to support Owens’s (Appellant’s) conviction for possession of methamphetamine, and it did not exclude the reasonable hypotheses that the methamphetamine was discarded by the front seat passenger, another motorist, or a pedestrian.

[T]he relevant question on appeal from denial of the general grounds of a motion for new trial is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [] The Jackson standard of review is applied so that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.”

The video recording taken from Officer Owens’s vehicle showed that after Appellant exited the van and walked back to Officer Pugh’s patrol vehicle, he spoke calmly with the officers, explaining that he and the passengers had just finished moving a washing machine or dryer to earn some money. After Appellant was placed in Officer Pugh’s patrol vehicle, both officers walked to the van, and Officer Owens conversed with the front seat passenger. The officers later walked back to Officer Owens’s vehicle, passing the door of Officer Pugh’s vehicle through which Appellant had been placed. Less than 30 seconds later, the front seat passenger walked past that same door of Officer Pugh’s patrol vehicle through which Appellant had been placed, and the front seat passenger made a motion with his hand. About 40 seconds later, the front seat passenger and an officer walked to that same door of Officer Pugh’s vehicle; the officer opened the door of the patrol vehicle, as the front seat passenger stood on the other side of the door. Seconds later, the officer closed the door; both officers and the front seat passenger walked to the van.

Later, as both officers walked away from the van and toward the patrol vehicles, Officer Owens shone his flashlight on the ground and found a bag containing a white substance that later tested positive for methamphetamine. The bag was found on the ground, outside the door of the patrol vehicle through which Appellant had been placed. Less than two minutes later, the van was driven away.

The front seat passenger was never searched. Neither passenger was questioned about the methamphetamine recovered at the stop, and neither passenger testified at trial. No effort was made to test the bag for fingerprints. At trial, Officer Pugh testified that he did not see Appellant drop anything on the ground. Officer Owens testified that he did not see Appellant commit a crime.

The trial court denied Appellant’s motion for a new trial, finding that as it concerned the possession of methamphetamine charge, “the evidence ... prove[d] more than spatial proximity because defendant was both spatially near the drugs, and was the only person to be near the drugs in the timeframe they were dropped. The defendant had exclusive opportunity for control.”

“Possession of contraband may be . . . actual or constructive.”

A person may be found to have had constructive possession of contraband if it is shown that he had both the power and the intention at a given time to exercise dominion or control over it. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity.
Beyond a defendant’s spatial proximity to the drugs, constructive possession may be shown by demonstrating the defendant knowingly had both the power and intention at a given time to exercise control over the substance. Power may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances.

In Brown v. State as a police officer approached a defendant in front of a house, the defendant ran away, breaking lawn ornaments in his flight and disregarding officers’ commands to stop. Officers chased the defendant, tackled him to the ground, and handcuffed and arrested him. When they lifted the defendant from the ground, an officer found what appeared to be a crack pipe, lying on the ground nearby. The pipe was dry although the surrounding area was wet from a recent rain. The pipe tested positive for traces of cocaine. The defendant, convicted of possession of cocaine, challenged the sufficiency of the evidence to show that he had possessed the pipe. Holding that the state had presented evidence other than the defendant’s mere spatial proximity to the pipe containing cocaine to show that he had constructive possession over it, the court stated:

The pipe was dry, although it had been raining and the surrounding area was “soaked”; from this evidence the court as factfinder could infer that the pipe had been on the ground for a very short period of time. In addition, the state introduced similar transaction evidence that [the defendant] had been carrying a small crack pipe in the pocket of his jacket on the occasion of an earlier arrest.

In Wright v. State, this court held that the evidence established a meaningful connection between a defendant and contraband which showed that the defendant had exercised power and dominion over drugs not found on his person. In that case, police officers apprehended the defendant after pursuing him from the scene of a shooting; when they caught him he had crawled partly underneath the front end of a car. After arresting the defendant, officers located a large amount of cash in his pockets and drugs inside the wheel well of the car; the drugs were within arm’s-reach of the defendant; and no one but the defendant had been under the car since his apprehension. Moreover, the bag in which the drugs were placed did not appear dirty, weathered, or damp; thus, the jury could infer that the drugs had been recently placed in the wheel well.

In this case, the van driven by Appellant was stopped for a traffic violation. Appellant spoke calmly with the officers, explaining what he and the passengers had just finished doing and admitting that he and one of the passengers had earlier consumed alcoholic beverages. Neither officer saw Appellant throw or drop anything on the ground; and there was no testimony that either officer saw Appellant make a throwing motion, either as Appellant was being detained and placed in the patrol vehicle or when one of the officers later opened the door of the patrol vehicle through which Appellant had been placed. Neither video recording of the stop showed either Appellant or the front seat passenger throwing anything on the ground; nor does either video show anything being thrown or dropped onto the ground where the methamphetamine was found. Neither passenger testified at trial. And although the state argued to the jury that inclement weather or traffic would have damaged the methamphetamine had it been on the ground before the traffic stop, the state presented no testimony as to the weather conditions around that time period or of the amount or type of traffic common to the road.

Citing Taylor v. State, the state argues that Appellant’s suspicious driving, use of profanity, and admission to the officers that he had been moving a heavy appliance at a late hour, showed that he was under the influence of methamphetamine and thus connected Appellant to the methamphetamine found at the scene. But Taylor is distinguishable. In that case, this court affirmed a defendant’s conviction for possession of methamphetamine discovered in the back seat of a patrol vehicle immediately after the defendant, who had been sitting in the back seat, had been transported to jail. The transporting officer testified that he (the officer) had exclusive use of his patrol car and remained with it when it was being serviced by third parties; police recovered directly under the front passenger seat of a truck where the defendant had been sitting, a smoking pipe containing residue that tested positive for methamphetamine; and the state presented, as a similar transaction, evidence of a prior drug conviction. In this case, the front seat passenger of the van had twice walked past the area where the methamphetamine was found, there was no evidence of other drugs or drug paraphernalia found on or within Appellant’s immediate presence or in the van, and the state presented no evidence of similar transactions.

The majority opinion states that the video recording taken from Officer Owens’s vehicle depicts an object falling to the ground during the traffic stop. While it is true that an unidentified object fell to the ground during the stop, that object was not the contraband that the officers later recovered which formed the basis for the possession of methamphetamine charge. Although the maj ority opinion states that Appellant had dropped the object, the identity of the person who threw the object on the ground is not discernible from the video. And in any event, even if Appellant threw it on the ground, the video shows that from the time the object landed on the ground to the end of the video, it remained on the ground where it initially landed, in an area (the front end of the patrol vehicle) different from where the contraband was recovered (the rear door of the patrol vehicle, almost underneath the vehicle).

The majority opinion’s finding that Appellant “attempted to kick something under the patrol car,” is simply not depicted on the video; to the extent that the video shows Appellant moving his feet toward the roadway as he was standing, such act occurred at the front end of the patrol vehicle, an area (as already stated) different from where the contraband which formed the basis for the possession of methamphetamine charge was found. The majority opinion states that as Appellant was being placed in the patrol vehicle, he made movements with his hands consistent with discarding an object. However, had Appellant discarded anything at that time, it would have been apparent from the video because the video depicted an unobstructed view of his hands at the time he was being placed in the patrol vehicle. The video does not show anything falling or dropping from his hands. Thus, the evidence the majority opinion relies on could not be construed to have supported the jury’s verdict of guilty.

The conduct upon which the state relies does not show, in addition to spatial proximity, the connection necessary to establish that Appellant had both the power and intention at the time of his arrest to exercise dominion or control over the drugs.

Where, as here, the state’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. The burden to present evidence excluding every other reasonable hypothesis save that of guilt rests upon the state.
Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the [finder of fact]. . . . However, this court as a court of law, where there appears a hypothesis from the evidence, or from the lack of evidence . . . pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, may declare it so as a matter of law.

In my opinion, the evidence did not exclude the reasonable hypotheses that the methamphetamine was discarded by the front seat passenger, another motorist, or a pedestrian. Accordingly, I would conclude that the state failed to meet its burden, and reverse Appellant’s conviction for possession of methamphetamine.

Decided March 28, 2014.

Peter H. Banse, for appellant.

T. Craig Earnest, District Attorney, for appellee.

I am authorized to state that Presiding Judge Ellington and Judge Miller join in this opinion.

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

        Walker v. State, 247 Ga. 746, 748-749 (2) (280 SE2d 333) (1981), citing Jackson, supra. After his convictions for possession of methamphetamine, driving while his license was suspended, and driving a vehicle with defective equipment, Owens moved for a new trial, which the trial court denied.

        Herberman v. State, 287 Ga. App. 635, 637 (1) (653 SE2d 74) (2007) (punctuation and footnote omitted).

        Aquino v. State, 308 Ga. App. 163, 165 (1) (706 SE2d 746) (2011) (citation and punctuation omitted).

        In the Interest of Q. P., 286 Ga. App. 225, 226-227 (648 SE2d 731) (2007) (footnote omitted).

       314 Ga. App. 212 (723 SE2d 504) (2012).

       Id.

       Id. at 213 (2).

       Id. at 213-214 (2) (citations omitted).

       302 Ga. App. 332 (690 SE2d 654) (2010).

       Id. at 334.

       Id. at 332-334.

       Id. at 334.

       305 Ga. App. 748 (700 SE2d 841) (2010).

       Id. at 749-750 (1).

       Compare Brown, supra; Taylor, supra; Wright, supra at 332-334; McBee v. State, 296 Ga. App. 42, 45-46 (2) (a) (673 SE2d 569) (2009) (conviction for possession of methamphetamine affirmed where defendant/vehicle passenger was moving his hands around and under his seat in defiance of officer’s instructions, defendant’s connection to a lighter and a pipe found under seat and that later tested positive for drugs was based on more than mere spatial proximity; moreover, defendant had told police officer that he was looking for a lighter, and a syringe was found in the defendant’s pocket); Hester v. State, 261 Ga. App. 614-615 (1) (583 SE2d 274) (2003) (evidence held sufficient for possession of cocaine conviction where police officers observed the defendant engaging in what appeared to be a drug transaction, chased and apprehended the defendant, and discovered cocaine on the ground where defendant had been standing, and cocaine residue in defendant’s pocket); Walker v. State, 208 Ga. App. 690, 691-692 (1) (431 SE2d 459) (1993).

        In the Interest of J. S., 303 Ga. App. 788, 789-790 (694 SE2d 375) (2010) (punctuation and footnotes omitted).

        Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976) (citation and punctuation omitted).

       See generally Aquino, supra at 166-168 (1); In the Interest of J. S., supra at 788-791 (1).


author: McFADDEN, Judge. BOGGS, Judge,

text:
    A13A2351.
    In re ESTATE OF McKITRICK.
    (757 SE2d 295)
   McFADDEN, Judge.

This appeal, filed on behalf of Lorraine McKitrick, an incapacitated adult (“the Ward”), by attorneys she retained shortly before she was adjudged incompetent, seeks review of two orders entered by the probate court. Specifically, she first challenges the probate court’s finding that the conservator appointed for her estate did not have a conflict of interest that resulted in harm to the Ward. But because the Ward failed to include the transcript of the hearing at which this issue was addressed and evidence presented, we must affirm. The Ward also challenges the court’s order establishing the hourly rate that counsel for the Ward could bill for legal fees to be paid by the conservator. We vacate the probate court’s order establishing the hourly rate and remand for the court to consider evidence on the issue.

The record reveals that on January 4, 2013, prior to a determination that she was incapacitated, McKitrick retained counsel to represent her in “Cobb County Probate case #12-1853.” It is undisputed that on February 20,2013, however, the probate court appointed McKitrick’s son, Thomas Richardson, to serve as her conservator, and her daughter, Mary Mellom, to serve as her guardian. While it is not included in the record here on appeal, the parties do not dispute that around March 11, 2013, Richardson, as conservator, filed a “Petition to Maintain Previously Established Estate Plan and for Continuing Powers to Invest.” The Ward objected that her son Richardson should be removed as conservator because his ownership interest in her assets created a substantial conflict of interest that caused her harm.

On April 29,2013, the probate court held a hearing on the matter during which the “question of counsel’s authority to serve as counsel for the Ward” was also raised. Two days following the hearing, counsel for the Ward filed a “Notice of Intent to Continue as Ward’s Attorney,” asserting that because the Ward hired counsel prior to the capacity hearing, he intended to continue to represent her interests. On May 17, 2013, the probate court entered orders addressing these issues, and it is from these rulings that the Ward appeals.

1. Conservator’s conflict of interest.

The Ward complains that her conservator, because of his conflict of interest, “should either step down or divest himself of the ownership of the assets of the Ward’s estate.” She complains that the conservator refused to “spend any of the corpus of the Estate on the items that the Ward desires,” and “has been dilatory in paying necessary items.” The conservator responds that the evidence presented at the hearing on this matter reveals that his judgment is not clouded, that he has sought authority for all necessary expenditures as well as items and services requested by the Ward, and that the evidence showed nothing other than that he has been carefully conserving the Ward’s assets and paying for her care. The probate court ruled that although the conservator had a conflict of interest as a result of his potential death benefit in the Ward’s accounts, there was no showing that the conflict had resulted in harm to the Ward.

OCGA § 29-5-24 (b) provides:

The conservator must disclose promptly any conflict of interest between the conservator and the ward when it arises or becomes known to the conservator. The conservator must seek the court’s determination as to whether the conflict is insubstantial or whether it is in the best interest of the ward for the conservator to continue to serve and not forfeit any property right. If the court finds that the conflict of interest is substantial or contrary to the best interest of the ward, the conservator may either resign or forfeit the property interest that is the source of the conflict.

“We review a probate court’s evidentiary holdings under the familiar abuse of discretion standard of review.” (Citations and footnote omitted.) Dorsey v. Kennedy, 284 Ga. 464 (1) (668 SE2d 649) (2008). But because a transcript is necessary for a review of the evidence presented at the hearing on this matter, and the record here does not contain a transcript, we “must presume the evidence was as the probate court found and its judgment correct on all issues presented. [Cit.]” Gordon v. Cotton, 285 Ga. 826, 827 (684 SE2d 621) (2009). We therefore affirm the probate court’s ruling with regard to the conservator’s alleged conflict of interest.

2. Attorney fees.

The Ward complains that the probate court erred in setting an hourly rate at which her hired counsel could bill for his services. We vacate and remand for the probate court to consider parol evidence on this issue. But first we address whether the fee agreement contemplated a flat fee or an hourly rate, an issue raised by the dissent.

(a) The parties contemplated an hourly rate.

The dissent argues that application of the rules of contract construction leads to the conclusion that the Ward and her attorney intended a flat rate when they entered into the Fee Agreement and Contract for Representation. But the parties do not challenge on appeal the probate court’s ruling that the fee agreement “expressly contemplate[s] an hourly rate for services.” Nonetheless, given our de novo standard of review, see Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga. App. 696, 699 (1) (598 SE2d 12) (2004), and the dissent’s discussion of the issue, we address whether the fee agreement provided for a flat fee or an hourly rate.

The Fee Agreement and Contract for Representation provides in pertinent part:

Fee
The Client agrees to pay the Firm a retainer of $2,700.00 to try and cover the case through its completion. The Firm will provide the Client with periodic billing statements detailing the work performed during the billing period, the number of hours and fractions thereof expended in performing the work, the nature and amount of the expenses incurred during the billing period, the amount transferred out of the escrow account in payment of the services performed, expenses incurred during the billing period, and the amount remaining in the escrow account.

The probate court remarked that she was “temptfed]... to limit the fees to a flat rate.” She acknowledged that the agreement between the Ward and her counsel “is obviously vague as to the billing rates to be charged,” but held that it “expressly contemplate [d] an hourly rate for services.” We agree.

“The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). “[Cjontracts must be construed in their entirety and in a manner that permits all of the terms contained therein to be consistent with one another.” Schwartz v. Schwartz, 275 Ga. 107, 108 (1) (561 SE2d 96) (2002) (citation omitted). “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (West 2012).

To hold that this provision contemplated a flat fee renders meaningless the provisions regarding the escrow account. Had the Ward and her counsel intended a flat fee, then there would have been no reason to require the billing statements to detail “the amount transferred out of the escrow account in payment of the services performed,... [and] the amount remaining in the escrow account.” A flat fee is a lump sum; if the parties had contemplated a flat fee, then once the fee had been earned and paid from the escrow account, no amount would remain in that account.

On the other hand, if the Ward and her counsel intended that counsel would be paid at an hourly rate, the provision makes complete sense and every term has meaning: as counsel “performed [work] during the billing period,” he would keep track of “the number of hours and fractions thereof expended in performing the work,” and then “transfer [ ] out of the escrow account [, which contained the $2,700 retainer, the amounts] in payment of the services performed,” while keeping the Ward informed of “the amount remaining in the escrow account.” This construction upholds the intent of the Ward and the attorney, and therefore is the construction that must be enforced. See OCGA § 13-2-3 (“The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.”).

The fact that hired counsel presumably drafted the agreement does not change the outcome, as the dissent would have it. It is true that a construction against the drafter is preferred. OCGA § 13-2-2 (5). But “no canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions.” Estate of Pitts v. City of Atlanta, 323 Ga. App. 70, 75 (4) (746 SE2d 698) (2013) (citation and punctuation omitted). And while ambiguous contracts

must be construed against the party drawing and executing them, nevertheless, a contract should not be torn apart and construed in pieces. Instead, the court should look to the entire instrument and so construe it as to reconcile its different parts and reject construction which leads to contradiction, in order to ascertain the true intention of the parties, which is the real purpose of judicial construction of contracts.

Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 817 (1) (a) (616 SE2d 152) (2005). Reviewing the entire agreement as required by the law, it is clear that the Ward and hired counsel intended that counsel would be paid an hourly rate. Accordingly, this is the construction that must be enforced. OCGA § 13-2-3.

(b) Hourly rate.

Once the probate court concluded that the fee agreement contemplated an hourly rate for services, she ordered that “the hourly rate [would] be established as that of a court appointed attorney in the Cobb Circuit Defender’s Office at a rate of $45 for out of court service and $60 for courtroom service.” The Ward argues that the probate court erred in setting the hourly rate. She concedes that “her attorneys mistakenly omitted the rate at which the firm would bill its hourly work,” agrees that the probate court correctly ruled that there exists an ambiguity regarding the hourly rate, but asserts that such ambiguity was explained by evidence — a billing statement — presented at the April 29, 2013, hearing. The conservator disputes that any billing statements were tendered as evidence at that hearing. And, as detailed above, the Ward has failed to include a transcript of that hearing in the record on appeal.

Regardless of whether the billing statements were tendered at the April 29, 2013, hearing, however, the probate court’s order makes clear that she did not consider billing statements when she ordered that the hourly rate would be “that of a court appointed attorney in the Cobb Circuit Defender’s office at a rate of $45 for out of court service and $60 for courtroom service.” In fact, the probate court gives no explanation as to how she concluded that the Ward and her attorney had intended the hourly rate to be “$45 for out of court service and $60 for courtroom service.” Cf. OCGA § 13-2-3 (“The cardinal rule of construction is to ascertain the intention of the parties.”).

The fee agreement is ambiguous in that it fails to specify the hourly rate component of the contractual consideration that the parties intended the Ward would pay for her attorney’s services. See Capital Color Printing v. Ahern, 291 Ga. App. 101, 106 (1) (661 SE2d 578) (2008) (“Ambiguity exists where the words used in the contract leave the intent of the parties in question.”) (citation omitted). Having agreed that the Ward would compensate her attorney for each hour of his work at a particular rate of pay and given that the particular hourly rate would be integral to such an agreement, it could not have been the intent of the Ward and her attorney that there was no hourly rate. See Jordan v. Tri County Ag, 248 Ga. App. 661, 663 (1) (546 SE2d 528) (2001). But this ambiguity can be resolved by the consideration of parol evidence. OCGA § 13-2-2 (1); ESI Cos. v. Fulton County, 271 Ga. App. 181, 184-185 (1) (c) (609 SE2d 126) (2004) (parol evidence can explain but not vary ambiguous contractual language); Jordan, supra, 248 Ga. App. at 663 (1); Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 439 (1) (292 SE2d 84) (1982) (“parol evidence may be offered to show the intent of the parties” when resolving contractual ambiguities). Consequently, we must vacate the probate court’s order and remand for proceedings not inconsistent with this opinion.

Judgment affirmed in part and vacated in part, and case remanded.

Phipps, C. J., Barnes, P. J., and Ellington, P. J., concur. Doyle, P. J., Boggs and Branch, JJ., concur in part and dissent in part.

BOGGS, Judge,

concurring in part and dissenting in part.

I concur fully in Division 1. But because I would hold that the agreement must be construed to provide only for a flat fee and not an hourly rate, I respectfully dissent to Division 2. As cited by the majority, the agreement between the Ward and her counsel provides as follows:

Fee
The Client agrees to pay the Firm a retainer of $2,700.00 to try and cover the case through its completion. The Firm will provide the Client with periodic billing statements detailing the work performed during the billing period, the number of hours and fractions thereof expended in performing the work, the nature and amount of the expenses incurred during the billing period, the amount transferred out of the escrow account in payment of the services performed, expenses incurred during the billing period, and the amount remaining in the escrow account.

The agreement contained neither a provision expressly stating that the client would pay the firm by the hour, nor any provision governing fees if the retainer were to be exhausted by hourly charges.

The Ward’s argument here turns upon the construction of the agreement, which “involves a question of law for the court to resolve based on the intent of the parties as reflected in the agreement.” Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga. App. 696, 699 (1) (598 SE2d 12) (2004). And we review this issue de novo. Id. “First, we must determine if the contract language is ambiguous, and, if so, then we apply the appropriate rules of construction set forth in OCGA § 13-2-2.” Id.

While the probate court concluded that the agreement “expressly contemplate [d] an hourly rate for services,” the plain language of the agreement itself is not so clear. The “Fee” section of the agreement provides for a retainer fee of $2,700, and that counsel will present the Ward with periodic billing statements of the work performed, number of hours expended, the amount of expenses incurred, the amount transferred out of escrow, and the amount remaining in escrow. This section could be interpreted as providing for a retainer fee and contemplating payment for the number of hours expended in performing the work, i.e., an hourly rate. On the other hand, it could be interpreted to provide that the Ward would pay counsel $2,700 and that counsel would provide the Ward with billing statements to show the work performed for that amount, which was paid “to try and cover the case through its completion.”

The agreement is unclear as to whether the parties even agreed that the Ward would pay counsel an hourly rate. The fee provision is therefore ambiguous as it is open to more than one interpretation. See Shepherd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 190 (750 SE2d 463) (2013) (ambiguity means “duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and it also signifies being open to various interpretations.”) (citations and punctuation omitted).

Decided March 28, 2014.

John H. Skelton, for appellant.

Ophelia W. Chan, for appellee.

In looking to the rules of contract construction set forth in OCGA § 13-2-2 to resolve the ambiguity, and pursuant to OCGA § 13-2-2 (5) specifically, as the preceding rules provide us no resolution, “as judicially interpreted, where the construction of a contract is doubtful, the construction that goes most strongly against the drafter of the agreement is to be preferred.” Reichman, supra, 266 Ga. App. at 699-700 (1); see Dept. of Community Health v. Pruitt Corp., 295 Ga. App. 629, 632-633 (673 SE2d 36) (2009) (construing ownership provision against the drafter); see also Lewis v. Smith, 274 Ga. App. 528, 529 (1) (618 SE2d 32) (2005) (“Counsel must be held to the strict language of the instrument he prepared. [Cits.]”); Lewis v. Uselton, 202 Ga. App. 875, 879-880 (3) (416 SE2d 94) (1992) (“An ambiguous provision in a contract is construed most strongly against its maker .... The provision in this contract must be construed most strongly against the attorney who proposed it.”). Therefore, construing the agreement against counsel for the Ward as the drafter, it should be read to provide for a fee of $2,700 for counsel’s work on the case through its completion, and I would hold that the trial court erred in finding otherwise.

For this reason, I respectfully dissent.

I am authorized to state that Presiding Judge Doyle and Judge Branch join in this dissent.

       See OCGA § 29-5-20 (a) (5) (“In every conservatorship the ward has the right to: . . . Individually, or through the ward’s representative or legal counsel, bring an action relating to the conservatorship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by Chapter 4 of this title and this chapter and the right to bring an action to modify or terminate the conservatorship pursuant to the provisions of Code Sections 29-5-71 and 29-5-72[.]”).

       It appears that the probate court also appointed a guardian ad litem for the Ward.

       A transcript of this hearing was not included in the record here on appeal.

         While this enumeration concerns the Ward’s counsel’s fees, it indirectly relates to the conservatorship. As noted by the probate court, “the conservator . .. needs direction in how to assess and pay” the fees charged by the Ward’s counsel.

       The agreement also contains a merger clause: “This agreement constitutes the entire agreement between the Firm and the Client with respect to this matter and cannot be changed except by written agreement.”

       It is also unclear as to whether the counsel’s retainer fee “to try and cover the case through its completion,” means that counsel would “try,” i.e., litigate, and “cover,” i.e., handle or supervise the case for a stated fee, or that counsel would “try,” i.e., attempt or make an effort, “to cover the case through its completion.”

       Although the Ward argues that extrinsic evidence shows the hourly rate, the issue here is not the rate itself, but whether the parties agreed to an hourly rate. In any case, “parol evidence cannot add to, take from, or vary a written contract, and it cannot be used to explain an ambiguous agreement if the rules of contract construction resolve the ambiguity.” Pruitt Corp., supra, 296 Ga. App. at 633. We have applied those rules here to conclude that the agreement did not provide for the payment of an hourly fee.