author: PHIPPS, Presiding Judge.

text:
    A12A2296.
    THE STATE v. WOFFORD.
    (739 SE2d 110)
   PHIPPS, Presiding Judge.

Chad Randall Wofford was charged with committing five sexual offenses against his girlfriend’s two daughters, V. H. and O. H.: (i) rape of V. H.; (ii) aggravated child molestation of V. H., by having her place her mouth upon his penis; (iii) aggravated child molestation of V. H., by placing his mouth upon her vagina; (iv) child molestation of V. H., by rubbing her vagina with a vibrator; and (v) aggravated child molestation of O. H., by placing his mouth upon her vagina. A jury found Wofford not guilty of rape and guilty of the remaining four counts. Convicted on those four counts, Wofford filed a motion for new trial. The trial court granted the motion on the ground that Wofford’s trial counsel had rendered ineffective assistance by failing to call certain individuals as defense witnesses. In this direct appeal, the state contends that the trial court’s ruling was error for reason that Wofford failed to satisfy the two-prong test of Strickland v. Washington. We agree with the state and therefore reverse the order granting Wofford a new trial.

The Trial

At Wofford’s trial, which was held in 2009, the state’s witnesses testified to the following. During the time period alleged in the indictment, between January 1, 2004 and September 19, 2005, Wofford lived with his girlfriend, V. H. and O. H.’s mother. The girls lived out of state with their father during the 2004-2005 school year and thus attended school there during that school year. There were ongoing child custody issues, and at some point, the girls returned to live with their mother (and Wofford) in Georgia, where they began the 2005-2006 school year.

On August 29, 2005, then nine-year-old V. H. was sent from her classroom to the school counselor’s office. V. H. had gotten into trouble in her fourth grade class, and she was angry. During her session with the counselor, V. H. said that Wofford had touched her private parts. The counselor asked her where Wofford had touched her, and V. H. pointed from her neck to her knees and indicated that the touching had been underneath her clothing. V. H.’s mother was summoned to the school, and V. H. repeated her claim to her mother. The counselor called the police and spoke to a police officer. No police officer came to the school; instead, the mother took both V. H. and her younger daughter, then seven-year-old O. H. who was in the second grade, from the school so that they could go to the police station.

At about 6:00 p.m., the three of them arrived at the police station. Apolice officer interviewed each girl separately. When the officer was distinguishing between the truth and imagination, V. H. told him that people had not believed her when she told them that she had once gotten a portal to open into a magical realm, but that when she tried to jump through it, she got her shoes wet because the portal had closed.

Regarding her allegation made earlier that day, V. H. told the officer that she had reported to the school counselor that Wofford had given her a “bad touch.” Specifically, V. H. said, Wofford had given her a backrub, which she considered a “bad touch” because her father had never given her a backrub. The officer asked V. H. whether she wanted to tell him anything else, and she said no.

Similarly, when the officer interviewed O. H., she said that Wofford had given her a backrub. O. H. volunteered that, earlier that day, she had reported such to the school counselor, adding that her father had never given her a backrub. Having already been apprised that O. H. was perhaps a witness, but not an alleged victim, the officer ended the interview with O. H. The officer closed the investigation as to both girls, concluding that there was insufficient cause to proceed. Both interviews had been recorded onto a DVD, which was played at trial for the jury.

About two weeks later, on the afternoon of Friday, September 16, the school psychologist met with V. H. to evaluate whether the child, who had received special educational services during a prior school year, remained eligible for services that school year. During that evaluation, V H. told the psychologist that she had lied to police concerning Wofford and that Wofford had done bad things to her. Then V. H. refused to talk further about it. The psychologist testified that, at school, V. H. was “oppositional to teachers, to staff. She would do things to get out of trouble, so in that regard she was manipulative. Whenever she was in trouble, she would try to manipulate the situation to get out of trouble.” Further, the psychologist described that when she met with V. H., the child sometimes “made fantastical types of statements. She had a very active fantasy world. . . . She would tell stories that involved witches, warlocks, having a friend who could read other people’s minds, those types of things.” Nevertheless, the psychologist relayed to the school’s assistant principal V. H.’s claim that she had lied to police.

The following Monday morning, September 19, the school’s assistant principal met with V. H., who told her that she had lied to police. V. H. was ushered back to the counselor’s office. The child was again very upset. After the assistant principal left, V. H. told the counselor that she had lied to the police. The counselor asked V. H. to write down what had happened. V. H. wrote that Wofford had licked her breast and vagina, rubbed his penis on her vagina, that white liquid had come out of his penis, and that he had made her watch videos of individuals having sex; V. H. also wrote that Wofford had done these acts at night, when her mother was at work. The counselor called the police again. This time, the counselor did not call the child’s mother.

A police detective with specialized training in investigating child physical and sexual abuse went to the school and talked with the counselor, was given V. H.’s handwritten note, and separately interviewed V. H. and O. H. V. H. affirmed that she had written the note he had received from the counselor. When O. H. was interviewed, she said that she had something to report, but did not feel comfortable speaking it. So she wrote that Wofford had licked her breasts and private part and that Wofford had done something to her sister V. H., but she did not know what. The detective took both girls to a sexual assault center to proceed with extensive interviews and physical examinations. (The detective also contacted the children’s mother, as well as the Department of Family and Children Services (DFCS).) Meanwhile, V. H. wrote a second note: “Dear mommy, I’m sorry that I lied. Love, [V. H.].” V. H. never gave the note to her mother; instead, the note was soon passed to the detective.

At the sexual assault center, the police detective interviewed each girl separately. V. H. said that, on numerous occasions, Wofford had touched her vagina, put his mouth on her vagina and breasts, and forced her to put her mouth on his penis. She said that she had touched Wofford’s penis and described it with words such as “hard,” “rubbery,” and “squishy.” Five or six times, V. H. recounted, Wofford’s penis had “squirted” what she described as “white liquid” that was “warm” and also “sticky.” V. H. claimed that, about a month before, Wofford had tried to put his penis in her vagina. The sexual encounters with Wofford, V. H. estimated, had been going on for about a year, typically occurring when her mother was at work. She said that Wofford had threatened to harm her if she ever told anyone about what he was doing. During the interview, V. H. was asked about the note she had written to her mother; the child said that, when she previously told the (first investigating) officer that Wofford had only given her abackrub, she was lying for her mother; the child expressed concern that DFCS and the “court” would get involved with their family and that her mother would lose custody of her. In addition, V. H. said, her mother had “bribed” her with candy and “McDonald’s.” The interview was recorded onto a DVD, which was played at trial for the jury.

When the police detective interviewed O. H., she said that Wofford had massaged her buttocks inside her panties and had touched and licked her vagina. She stated that this had occurred about three months before, when she was on a school break. She also claimed that, in her presence, Wofford had watched movies that depicted adults having sex, that he had “tickled” his private part, and that white liquid had come out of his private part. O. H. told the detective that, two or three times, Wofford had squeezed her hand around his private part, which she described as “squishy,” with “bones” in it, and soft on the top. The child described that Wofford had used a sexual device on her, at one point inserting it into her vagina. O. H. said that she had not told the truth when she previously talked to a police officer because talking to people she did not know made her nervous and because she was afraid that Wofford would go to jail. This interview was recorded onto a DVD, which was played at trial for the jury.

That same day, September 19, 2005, each girl was examined by a nurse who was qualified at trial as an expert in sexual assault medical examinations. The nurse testified that V. H. had told her that Wofford had touched her inappropriately, that his private part had touched her private part, that Wofford had placed her mouth on his penis, that she had seen sticky, white liquid come out of his penis, and that he had threatened her not to tell anyone. O. H. told the nurse that Wofford had licked her private part and had made her touch and rub his penis. The nurse found no sign on either girl of vaginal penetration or residual injury. But according to the nurse, in cases of delayed reporting, which the nurse defined as reporting more than 72 hours after an alleged sexual incident, “only in 5 percent of the time do we find injury.”

The next week, the police detective interviewed V. H. again. During that interview, V. H. said that Wofford had touched her private part with a vibrating machine.

V. H. and O. H. testified at trial. V. H. was then 13 years old and testified that Wofford had rubbed his penis on her vagina and inserted it into her vagina, rubbed a vibrator on her vagina and inserted it into her vagina, forced her mouth onto his penis, and placed his mouth on her vagina. These incidents occurred when her mother was at work. Wofford had threatened her that he would kill her, her mother, her sister, and her grandmother if she told anyone.' Angry at Wofford because of what he was doing to her and wanting him out of the home, she would make up “random excuses” to her mother about why Wofford should have been made to leave. Meanwhile, she resolved to otherwise deal in secret with Wofford’s sexual abuse. But when she suspected that he also had been inappropriately touching O. EL, she exposed Wofford’s sexual abuse because she wanted to protect her younger sister.

V. H. was asked at trial why, after initially stating to the school counselor that Wofford had touched her inappropriately, she told the police officer that Wofford had only given her a backrub. She answered that, on the way to the police station, her mother promised her candy and “McDonald’s” if she would say that Wofford had only given her an uncomfortable backrub and had not touched her underneath her clothing. V. EL testified that what she said to the first police officer — that Wofford had only given her a backrub atop her clothing — was a lie. Additionally, V. EL revealed at trial that, during that time (August and September 2004), her parents were battling over child custody issues and she was worried that she would be taken from her mother and sent to live with her father, which she did not want. But even after recanting her initial allegation, she testified at trial, she again told school personnel about Wofford’s conduct, and she acknowledged at trial that she had written the note: “Dear mommy, I’m sorry that I lied. Love, [V. H.].”

O. H. was twelve years old at trial. She testified that on various occasions during the time Wofford lived with them, he licked her vagina, rubbed his private part against her private part, masturbated in her presence while watching a pornographic movie, and placed her hand on his private part one night while she pretended to be asleep. She had never told her mother about these sexual encounters until after Wofford was arrested because V. H. had told her that Wofford had threatened to kill her mother if either one of them told.

Wofford did not testify and did not call any witnesses. However, defense counsel’s cross-examination of the state’s witnesses and closing argument show a strategy employed of attacking the credibility of V. H. and O. H. and arguing that the state’s case — which lacked any corroborating medical evidence — fell short of proving beyond a reasonable doubt the elements of the charged crimes.

On Motion for New Trial

On motion for new trial, Wofford, complained that his trial lawyer did not seek to impeach V. H. by calling as defense witnesses two of that child’s former school teachers. At the new trial hearing, Wofford called these teachers to the stand. A special education teacher, who had taught V. H. during a part of the 2003-2004 school year, was asked whether V. H. had a reputation in the school community for truthfulness or untruthfulness; the teacher responded, “She definitely had times when she was not truthful.” That teacher further testified that, “at [V. H.’s] age and where she was emotionally” during that school year, she would not have believed the child under oath. The second teacher called by Wofford at the new trial hearing had taught V. H.’s kindergarten class during the school year 2002-2003; she testified that V. H. had a reputation in the school community for untruthfulness and that, at that time, she would not have believed V. H. under oath.

On cross-examination by the state at the new trial hearing, V. H.’s kindergarten teacher conceded that she was unable to testify as to V. H.’s reputation for truthfulness at the time of the 2009 trial. Likewise, the teacher of V. H.’s class during school year 2003-2004 conceded on cross-examination at the new trial hearing that she had no way of knowing whether V. H. was truthful at the time of Wofford’s trial because “[V. H.] wasn’t in my class long enough for me to get a real feel for how she would be progressing”; she added, “I didn’t know her after . . . she was in my classroom.” Neither of the two teachers proffered any impeachment testimony as to O. H.

Wofford’s trial lawyer was called to the stand and asked whether he had been aware of those two teachers prior to trial. The lawyer answered that he had not known any specifics about those particular teachers, although their “names may have been on a report done by [a doctor].” But that doctor was then suffering from dementia and other health issues, and the lawyer concluded that the doctor could offer nothing helpful to the defense.

The lawyer went on to testify on motion for new trial about the trial defense employed. His investigation of the case had included going to the girls’ elementary school and meeting with “most of the teachers that were involved in this case.” Also, he had subpoenaed and reviewed V. H.’s school records, and read numerous DFCS reports concerning the girls’ family environment around the time in question. And at trial, although he had not called as impeachment witnesses the two teachers at issue here, he had attacked the credibility of both V. H. and O. H. through cross-examination of not only the girls, but also the state’s other witnesses.

Wofford’s trial lawyer gave numerous examples. For instance, he pointed out at the new trial hearing that, with V. H. on the stand, he asked her to explain why — if her mother had been the one to propose a lie to police about Wofford’s conduct — she (V. H.) would thereafter write a note to her mother apologizing for delivering to police the proposed lie. The girl answered, “I’m not sure. I don’t remember.” Wofford’s trial lawyer further elicited V. H.’s testimony that she would make up “random excuses” to get Wofford out of their home. In addition, with various witnesses on the stand, the lawyer pursued questioning so as to emphasize that the girls gave varying accounts about Wofford. As an example, the lawyer elicited testimony from the police detective to call attention to the fáct that V. H. had mentioned the use of a vibrator during her second interview with him, but not during her first interview with him.

Additionally, Wofford’s trial lawyer pointed out at the new trial hearing, he had sought to highlight for the jury that other outcry witnesses had concerns about V. H.’s veracity. Hence, he had elicited from the school counselor, “I remember at the time [of V. H.’s initial allegation in August,] my concern was that she had exaggerated stories and I didn’t know whether or not it was true.... I remember [V. H.] telling me she was mad at [Wofford].” And from the school psychologist, Wofford’s trial lawyer elicited on cross-examination testimony that V. H. had a tendency to overreact to minor disappointments and that “her coping mechanisms were not good.”

After the hearing, the trial court entered an order granting Wofford a new trial, stating therein that “[t]rial counsel testified that he didn’t call [the two teachers at issue] because he didn’t know about them.” Those two teachers, the trial court continued, “were familiar with [V. H.] and knew her prior to the time [Wofford] came into her life,” and “the credibility of V. H. is particularly crucial to this case.” Thereupon, the court ruled:

Given the unique circumstances of this case and the nature of the evidence presented, this Court cannot say this testimony would probably have little or no impact on the jury’s consideration of the case. The Court is compelled to find that the failure to present this evidence fell below a reasonable standard of professional assistance and that the failure was prejudicial to the Defendant’s case.

The Instant Appeal

1. The state contends that the trial court erred by granting Wofford a new trial, arguing that Wofford did not carry his burden of demonstrating ineffective assistance of trial counsel. We agree.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo.

(a) Performance Prong, The alleged deficiencies in this case fell under the rubric of trial strategy.

The manner in which an attorney attacks the credibility of a witness falls within the ambit of trial tactics. In assessing selection of trial tactics, every effort must be made to eliminate the distorting effects of hindsight and the court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance as even the best criminal defense attorneys would not defend a particular client the same way.

“The decisions on which witnesses to call, whether and how to conduct cross examinations,. . . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” Wofford did not testify at the new trial hearing; and he cites nothing in the record, nor does he make any assertion, that his trial lawyer did not consult with him concerning strategies and tactics for the defense.

While other counsel, had they represented [Wofford], may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense tactics to be employed with which [Wofford]... [later disagreed], does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.

Rather, to show deficient performance,

a defendant must demonstrate that counsel’s performance was not reasonable under the circumstances confronting counsel at the time, without resorting to hindsight. Rather than focusing on what [the additional evidence] would have shown had it been sought, the proper emphasis is on whether counsel’s actions, under the circumstances then existing, were reasonable.

Here, the trial court noted in its order that “[t]rial counsel testified that he didn’t call [the two teachers at issue] because he didn’t know about them.” But notably, the court made no express finding that the lawyer reasonably should have known about them. Wofford asserts in his brief that certain reports in the record “include the names of the teachers called at the motion for new trial” hearing; the cited pages of the appellate record, however, do not. And at any rate, Wofford did not show on motion for new trial that the reports otherwise reasonably put his trial lawyer on notice that those particular individuals could have provided helpful testimony about V. H.’s veracity during prior years.

Wofford’s trial lawyer explained at the new trial hearing how he sought to discredit V. H., as well as O. H. The tactics he employed, as the trial transcript amply supports, included emphasizing the inconsistencies amongst the girls’ outcries and their trial testimony, showing that one outcry witness (the school counselor) had concerns about V. H.’s truthfulness in her allegations about Wofford, and pointing out that the school psychologist testified that V. H. had a “very active fantasy world,” tended to overreact to minor disappointments, lacked adequate coping mechanisms, and resorted to manipulating situations so as to get out of trouble. Furthermore, the record shows that Wofford’s trial lawyer highlighted the girls’ delayed disclosures, V. H.’s initial retraction, which was followed by her claim that the retraction was a lie, and the lack of medical evidence corroborating their allegations of sexual abuse.

Having examined trial counsel’s performance under the circumstances confronting counsel at the time, and without resorting to hindsight, we conclude that the tactics employed by Wofford’s trial counsel to impeach V. H. and O. H. amounted to “the exercise of reasonable professional judgment and did not fall outside the wide range of professional conduct.” Inasmuch as Wofford thus failed to establish that his trial counsel’s performance was deficient, the trial court erred in concluding that Wofford had carried his burden of proving ineffective assistance of counsel.

Decided March 19, 2013

Reconsideration denied April 8, 2013

(b) Prejudice Prong. As to this prong, the trial court stated in its order, “[T]his Court cannot say [the two teachers’] testimony would probably have little or no impact on the jury’s consideration of the case.” But

[t]he Strickland Court set forth the appropriate test for determining prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

We need not address this prong, however. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.”

2. Wofford has filed amended briefs in which he alleges that pretrial defects and trial errors warrant dismissal of all charges. But having failed to file any post-conviction notice of appeal (or cross-appeal), Wofford has failed to bring any such issues within the purview of this appeal.

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

Daniel J. Porter, District Attorney, Frances B. Anderson, Assistant District Attorney, for appellant.

Kenneth L. Gordon, for appellee.

       OCGA §§ 5-7-1 (a) (7) (authorizing the state to appeal an order granting a motion for new trial); 5-7-2 (b) (2) (providing that a certificate of immediate review shall not be required from an order described in OCGA § 5-7-1 (a) (7)).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       This is the second appeal in this case before this court. In Wofford v. State, 299 Ga. App. 129 (682 SE2d 125) (2009), this court affirmed the trial court’s denial of Wofford’s motion for discharge and acquittal, in which he claimed that his constitutional right to a speedy trial was violated.

       But see Riggins v. State, 279 Ga. 407, 408-409 (2) (614 SE2d 70) (2005) (noting that eliciting a teacher’s testimony that a student would lie when in trouble so as to divert responsibility from himself failed to follow proper procedure for impeaching student); Callahan v. State, 256 Ga. App. 482, 486 (3) (a) (568 SE2d 780) (2002) (determining that the victim’s credibility was not impeached by stepmother’s statement to police that the victim made up stories when he got into trouble, where the stepmother did not testify to the victim’s general reputation for truthfulness in the community or whether she would believe him under oath).

       Further, the trial court pertinently stated in its order that it had “reviewed the remaining allegations and find none that would justify granting the Motion.”

       Supra.

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

       See Payne v. State, 289 Ga. 691, 697 (3) (b) (715 SE2d 104) (2011) (decisions about what questions to ask on cross-examination are quintessential trial strategy); Washington v. State, 276 Ga. 655, 659 (3) (a) (581 SE2d 518) (2003) (manner in which an attorney attacks the credibility of a witness falls within ambit of trial tactics); Pickard v. State, 302 Ga. App. 483, 487 (1) (b) (i) (691 SE2d 569) (2010) (“The manner in which an attorney chooses to attack a witnesses] credibility falls within the ambit of trial tactics”).

        Washington, supra (citations and punctuation omitted); see Hamilton v. State, 274 Ga. 582, 589 (13) (555 SE2d 701) (2001) (reiterating that “a reviewing court must be highly deferential to [strategic or tactical] choices made by defense counsel in the conduct of a trial that are arguably dictated by a reasonable trial strategy”) (citation and punctuation omitted); but see generally Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004) (reiterating that invoking the words “tactics” and “strategy” does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances).

        McDaniel v. State, 279 Ga. 801, 803 (2) (c) (621 SE2d 424) (2005) (citation and punctuation omitted).

        Reed v. State, 285 Ga. 64, 66 (6) (673 SE2d 246) (2009) (citations and punctuation omitted); see Pickard, supra at 487 (1) (b) (ii) (noting that, although appellate counsel may have conducted the trial differently, this does not mean that the defendant did not receive a vigorous and complete defense, and finding that the record indicated otherwise).

        Belton v. State, 270 Ga. 671, 673 (3) (512 SE2d 614) (1999) (citations and punctuation omitted); see Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (1999) (stating that whether an attorney’s trial tactics are reasonable is a question of law, not fact).

       See Court of Appeals Rule 25 (b) (1) (stating that appellee’s brief “shall point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary, plus such additional parts of the record or transcript deemed material”). See generally Ruffin v. State, 283 Ga. 87, 91 (12) (d) (656 SE2d 140) (2008) (noting principle that trial counsel’s performance cannot be deemed deficient for failing to locate defense witness whose existence was not brought to counsel’s attention); Escobar v. State, 279 Ga. 727, 730 (5) (620 SE2d 812) (2005) (holding that trial counsel’s performance was not deficient for failing to discover a possible defense witness of whom he was not informed).

        Martin v. State, 281 Ga. 778, 782 (3) (b) (642 SE2d 837) (2007) (citation and punctuation omitted); see Washington, supra (rejecting claim that trial counsel was ineffective in manner of impeaching a witness, noting that “[wjhile not impeached... in the way appellate counsel would have liked, the witness was impeached on the subject”); Pickard, supra (trial counsel’s failure to call victims’ mother as a witness based on her having told trial counsel prior to trial that she had sought counseling for her daughters’ “lack of truthfulness,” did not show ineffectiveness, where trial counsel testified that he decided to impeach victims’ credibility by pointing out inconsistencies in their allegations and their conduct); Robbins v. State, 290 Ga. App. 323, 332 (4) (e) (659 SE2d 628) (2008) (rejecting claim that trial counsel was ineffective for failing to defend case by calling child victim to the stand, where defense advanced theory that child had come to the conclusion that she had contact with defendant’s “private” because her mother had told her so, where defense counsel sought to show that the mother was a liar); accord Belton, supra (finding that what the evidence would have shown was not relevant to the question of whether defense counsel performed deficiently in not pursuing the evidence).

       See Martin, supra; Conaway, supra.

        Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (emphasis supplied), quoting Strickland, supra at 694 (III) (B).

        Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011) (citation omitted).

       See OCGA § 5-7-1 (b) (providing that in any instance in which any appealis taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross-appeal).

       See State v. Pye, 282 Ga. 796, 803, n. 11 (653 SE2d 450) (2007) (explaining in an appeal by the state that, although the defendant’s brief included a purported enumeration of error and was denominated “Response Brief and Cross-Appeal of Appellee,” because no cross-appeal had been docketed in appellate court, and no notice of cross-appeal had been filed, the purported enumeration of error could not be considered).


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A12A1763, A12A2145, A12A2188.
    HIGDON v. HIGDON (three cases).
    (739 SE2d 498)
   Barnes, Presiding Judge.

These related appeals arise from custodial issues involving Alex and Jane Higdon’s four children following their divorce. We note as a preliminary matter that Dr. Higdon’s appeals are deficient in several respects. He has failed to provide a concise statement of the applicable standard of review as required by Court of Appeals Rule 25 (a) (3), and has not stated the method of preservation of his enumerations of error as required by Rule 25 (a) (1). Moreover, even though Dr. Higdon’s briefs contain extensive statements of facts, few, if any, of these facts are supported with citations to the record or transcript in violation of Court of Appeals Rule 25 (a) (1). We recognize that Dr. Higdon is acting pro se; nevertheless, “that status does not relieve him of the obligation to comply with the substantive and procedural requirements of the law, including the rules of this [C]ourt.” Simon v. City of Atlanta, 287 Ga. App. 119, 120 (1) (650 SE2d 783) (2007).

In Case No. A12A1763, Dr. Higdon appeals from the order of the trial court denying his multiple motions to find Mrs. Higdon in contempt for allegedly violating provisions in an earlier temporary order. In Case No. A12A2145, Dr. Higdon appeals from the order of the trial court denying his habeas corpus petition to restore his visitation and custody rights. And, in Case No. A12A2188, Dr. Higdon appeals the trial court’s order prohibiting him from future filings without permission of the court.

For the reasons that follow, we affirm the trial court’s judgment in Case Nos. A12A1763 and A12A2188, and dismiss as moot Case No. A12A2145.

Case No. A12A1763

In this appeal, we review Dr. Higdon’s challenge to the trial court’s order addressing the parties’ motions for contempt. We initially transferred this appeal to the Supreme Court, which determined that the appeal did not invoke its divorce and alimony jurisdiction and transferred it back to this Court. In its order, the Supreme Court explained that because it had “previously denied the application addressing the child support contempt. . . the only remaining issue is applicant’s contention that the trial court erred in not holding [Mrs. Higdon] in contempt of the child custody provisions.” Thus, as “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be,” OCGA § 9-11-60 (h), we only consider whether the trial court erred in denying Dr. Higdon’s motion to hold Mrs. Higdon in contempt for violating certain child custody provisions in the temporary order. See Egerton v. Jolly, 133 Ga. App. 805, 806 (1) (212 SE2d 462) (1975).

The facts establish that the Higdons filed several motions for contempt against each other related to the custody and support issues arising from provisions in a February 4,2011 temporary order. The order incorporated a June 9, 2010 temporary consent order, and provided, among other things, that the parents would have temporary joint custody of the four children and shared medical decision-making for the children. The order also provided the mother with child support of $1,859, and divided the couple’s possessions from the marital residence. The final judgment and divorce decree was filed on June 13, 2011, and per the parenting plan, Mrs. Higdon was granted final decision-making on healthcare, education and extracurricular issues, and primary physical custody. Dr. Higdon filed a motion for new trial.

On August 30, 2011, after a hearing, the court entered an order on the parties’ various contempt motions. It granted Mrs. Higdon’s motion to hold Dr. Higdon in contempt for failing to pay child support, but denied Dr. Higdon’s several motions to hold Mrs. Higdon in contempt for alleged violations of the temporary order.

1. In this appeal, we only consider whether the trial court erred in its refusal to hold Mrs. Higdon in contempt and whether it erred in finding that Dr. Higdon “came to court with unclean hands.”

“[A] trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011). “Thus, the question of whether a contempt has occurred is for the trial court[.]” Gallaher v. Breaux, 286 Ga. App. 375, 377 (650 SE2d 313) (2007) (citation and punctuation omitted).

(a) Dr. Higdon contended that the trial court erred in failing to cite Mrs. Higdon for contempt for failing to obtain certain medical evaluations and treatments for the children as ordered in a February 4, 2011 temporary order and in finding that he “came to court with unclean hands.”

Mrs. Higdon testified at the hearing on the contempt motions that she had received only about $ 1,000 total in child support over the previous six months, although she had been awarded $1,859 per month in child support. She also testified that Dr. Higdon was responsible for half of the uncovered medical expenses, but would pay his half only sporadically. In that respect, she testified that she had paid $7,317 in medical expenses for the children, but Dr. Higdon had not reimbursed her for his half of those expenses.

The trial court found that Dr. Higdon exhibited unclean hands by not paying child support or half of the uncovered medical expenses, which directly contributed to the contempt claim he had brought against Mrs. Higdon for her alleged failure to obtain medical treatment for the children. Regarding the medical treatments, the trial court held that Dr. Higdon’s actions had “resulted in [Mrs. Higdon’s] chosen doctor . . . declining] to treat the parties’ children.” The trial court quoted from a letter from the doctor that the cancellation was due to the “ ‘complexity’ of the issues surrounding the family,” and “most notably” due to Dr. Higdon’s “inappropriate and confrontational behavior” that had been experienced by her office staff. The trial court also found that Dr. Higdon’s failure to pay child support contributed to Mrs. Higdon’s inability to obtain the medical evaluations and treatment.

“Unclean hands” is a shorthand reference to OCGA § 23-1-10, which states: “He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.” See Dobbs v. Dobbs, 270 Ga. 887, 888 (515 SE2d 384) (1999) (noting that OCGA § 23-1-10 “embodies both the ‘unclean hands’ doctrine and the concept that ‘one will not be permitted to take advantage of his own wrong.’ ” (citations and punctuation omitted). Under the unclean hands doctrine, wrongdoing must be directly related to the claim against which unclean hands is asserted. Adams v. Crowell, 157 Ga. App. 576, 577 (2) (278 SE2d 151) (1981).

“Given the foregoing, no abuse of discretion resulted upon the trial court’s refusal to [hold Mrs. Higdon in contempt as to the medical treatments] under the doctrine of unclean hands.” Matrix Financial Svcs. v. Dean, 288 Ga. App. 666, 670 (b) (1) (655 SE2d 290) (2007).

(b) Dr. Higdon also claimed that Mrs. Higdon was in contempt for failing to deliver to him certain personal property from the marital residence as required by the final divorce decree. At the contempt hearing, Dr. Higdon alleged that he still had “thousands of dollars worth of possessions” at the marital residence and that Mrs. Higdon was in violation of the standing order because she would not allow him to get his possessions. But he also acknowledged that he had never specifically identified what possessions he claimed were still at the marital property.

The trial court ordered Mrs. Higdon to allow Dr. Higdon to pick up any personal property that remained at the marital residence upon receipt of his written list of items, but declined to hold her in contempt. Given Dr. Higdon’s vague testimony, we find no abuse of the trial court’s discretion in refusing to find Mrs. Higdon in contempt under these circumstances. This is particularly true given that the trial court ordered Dr. Higdon to make a list of his property and further directed Mrs. Higdon to have the property available for his retrieval on a certain date. See Dept. of Human Resources v. Cowan, 220 Ga. App. 230, 232 (2) (469 SE2d 384) (1996) (“The trial court’s discretion in [contempt] matters is broad [,] and its decision will be upheld if there is any evidence to support it.”) (citation and punctuation omitted).

(c) Finally, Dr. Higdon asserted that Mrs.‘ Higdon was in contempt for improperly dropping him from her medical insurance even though their divorce was not final.

“To hold in contempt, the court must find that there was a wilful disobedience of the court’s decree or judgment.” Beckham v. OBrien, 176 Ga. App. 518, 522 (336 SE2d 375) (1985). Here, the record demonstrates that under the provisions of the “Automatic Domestic Standing Order” applicable in this case, the parties were “enjoined and restrained from altering, suspending, or terminating any active insurance coverage.” As the trial court found, the reason the divorce was not final was because Dr. Higdon filed a motion for new trial after Mrs. Higdon notified her insurance company. Thus, the court ordered Mrs. Higdon to notify her insurance company that the divorce was not yet final and to have Dr. Higdon’s coverage reinstated until it was, but declined to find her in contempt under the circumstances. The record contains evidence that Mrs. Higdon’s conduct was not a willful violation of the standing order, and the trial court did not abuse its discretion in denying Dr. Higdon’s motion for contempt based on the insurance issue.

Case No. A12A2145

2. In this appeal, we consider whether the trial court erred in applying a special provision in the parenting plan of the final divorce decree which provided that Dr. Higdon’s visitation would be suspended for six months or until either party obtained an order modifying visitation if Mrs. Higdon became aware of any of the following:

a) Father directly or indirectly performs any medical testing or treatment or assessments without the agreement and/or knowledge of Mother; or b) Father’s action is contrary to the direction or recommendations of any of the children’s doctor’s treatment plans.

When Mrs. Higdon discovered that Dr. Higdon had requested medical testing kits for the children without her knowledge or permission, she notified Dr. Higdon in writing via her attorney that she was suspending his visitation. Specifically, her attorney notified Dr. Higdon that:

Mrs. Higdon is exercising her right under the Final Judgment and Decree and Parenting Plan Order to suspend your parenting time and visitation rights with the children pursuant to p. 8-9 of the Parenting Plan. As you already know, Mrs. Higdon has discovered that you have been doing secret testing on the children. You have . . . requested test kits for the children without informing Mrs. Higdon or consulting with Mrs. Higdon. . . . Please do not attempt to pick up the children for your visitation time. Mrs. Higdon will not release them to you, and in light of your behavior, she is not required to do so.

Dr. Higdon filed a writ of habeas corpus to enjoin the mother from “illegally detaining the children” and to restore his visitation. After a hearing on the petition, the trial court entered an order denying the petition to the extent that it could be construed as an attempt to change custody or any provision of the custody agreement pursuant to OCGA § 19-9-23 (d). The court also held, however, that Dr. Higdon’s co-parenting times “otherwise denied under the special provision” would be resumed “provided that during such co-parenting time [Dr. Higdon] is to be supervised by a third party.” The trial court’s order further provided that Dr. Higdon’s supervised visitation was effective immediately, and that his normal visitation would be restored three months later, on June 1, 2012.

Dr. Higdon filed his appeal in the Supreme Court of Georgia, which then transferred the case to this Court upon finding that per OCGA § 19-9-23 (d), its habeas jurisdiction was not invoked. See Munday v. Munday, 243 Ga. 863 (257 SE2d 282) (1979) (habeas petition seeking change in visitation rights was improper use of habeas to seek a change of custody and case was transferred to the Court of Appeals).

Dr. Higdon enumerates multiple errors regarding the trial court’s conduct during the hearing on his habeas petition, and also challenges the trial court’s custody and visitation rulings, including the application of the special provision allowing for the automatic suspension of his visitation rights upon certain events. As the trial court found, to the extent that Higdon was attempting to change the custody provisions of the final order and decree, OCGA § 19-9-23 (d) specifically prohibits the use of a complaint in the nature of habeas corpus to seek a change of child custody. Munday v. Munday, 243 Ga. at 863-864. Further, for the reasons set forth below, this appeal is 'dismissed as moot, and we need not determine if the provision suspending Dr. Higdon’s visitation was invalid as a self-executing change of custody provision. See Johnson v. Johnson, 290 Ga. 359, 360 (721 SE2d 92) (2012).

Pursuant to the order denying Dr. Higdon’s habeas petition, Higdon’s rights to visitation under the final judgment and decree were restored effective June 1, 2012, and thus, whether Dr. Higdon’s visitation was properly suspended before then became moot. OCGA § 5-6-48 (b) (3). See Babb v. Putnam County, 269 Ga. App. 431 (605 SE2d 33) (2004) (“It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot.”) (citations and footnote omitted).

Thus, as Dr. Higdon regained his suspended visitation rights, there is nothing for this Court to review, because “the activity sought to be enjoined has already ceased.” City of Comer v. Seymour, 283 Ga. 536, 537 (661 SE2d 539) (2008). Accordingly, because the matter is moot, the appeal is dismissed. OCGA § 5-6-48 (b) (“Where the questions presented have become moot” the appeal “shall be dismissed.”).

3. The remaining enumerations of error in Case No. A12A2145 have been considered and are either moot or have no merit.

Case No. A12A2188

4. In this appeal, Dr. Higdon challenges an order of the trial court prohibiting him from future filings without first gaining permission from the court. In its April 23, 2012 order the trial court noted that, although Dr. Higdon had filed a motion for new trial from the final judgment and decree of divorce entered on June 13, 2011,

to date, almost a year later, and despite efforts to set the matter down on the Court’s calendar, this Court has not been able to conduct a hearing on the same. [Dr. Higdon] has precluded this Court from finalizing the above-styled action. He has continuously and relentlessly filed frivolous lawsuits, motions, and other actions and legal documents. [Dr. Higdon] has asserted claims and positions in these filings, with respect to which there existed an absence of any justiciable issue of law or fact, which [Dr. Higdon] could not have reasonably believed that a court would accept said claims and/or positions.

The trial court directed that before filing any new actions, motions or petitions, Dr. Higdon must satisfy certain conditions:

1) [Dr. Higdon] must file a “Request to File,” in the Clerk of Court’s Office; 2) attach the document he wishes to file to the “Request,” as an “Exhibit”; 3) attach to any such pleading, motion, petition, or any other filing, a copy of this Order; and 4) present a courtesy copy of the Request, along with the Exhibit to the Judge’s Chambers. . . .

Although Dr. Higdon contends that the trial court abused its discretion in issuing a “global pre-filing” injunction, we do not agree.

“No person is free to abuse the courts by inundating them with frivolous suits which burden the administration of the courts for no useful purpose.” Ire re Carter, 235 Ga. App. 551, 552 (1) (510 SE2d 91) (1998). “This limitation on [Higdon’s] ability to file pro se lawsuits does not totally deprive [him] of meaningful access to the courts and is reasonable under the circumstances.” Smith v. Adamson, 226 Ga. App. 698, 700 (3) (487 SE2d 386) (1997). See Howard v. Sharpe, 266 Ga. 771, 772-773 (1) (470 SE2d 678) (1996) (order requiring approval of habeas judge and certification that claims were novel before inmate could file any future lawsuits in forma pauperis was reasonable restriction in light of past pattern of filing frivolous lawsuits); cf. Hooper v. Harris, 236 Ga. App. 651, 654 (3) (512 SE2d 312) (1999) (“a blanket declaration that all filings are ‘null and void by operation of law’ is impermissible”).

Decided March 28, 2013

Reconsideration denied April 10, 2013

Alex Higdon, pro se.

Bovis, Kyle & Burch, Erin S. Stone, Winfield L. Pollidore, for appellee.

In this circumstance, the trial court has not enjoined Higdon from future filings, but instead has mandated that Higdon observe certain conditions before filing. The trial court’s exercise of its discretion in undertaking such actions to aid in the orderly administration of its business will not be disturbed on appeal absent an impermissible restriction of Higdon’s access to the courts, and no such restrictions were imposed in this case. Howard, 266 Ga. at 772-773 (1); In re Carter, 235 Ga. App. at 552 (1); Smith, 226 Ga. App. at 700 (3).

5. Regarding Dr. Higdon’s remaining enumerations of errors with respect to the trial court’s evidentiary findings, we presume that the trial court properly considered all of the evidence before it. Brewer v. Harvey, 278 Ga. App. 503, 505 (629 SE2d 497) (2006). And “[a]s factfinder, it was the trial court’s duty to reconcile seemingly conflicting evidence and to weigh the credibility of witnesses.” Willis v. Wilis, 288 Ga. 577, 580 (3) (d) (707 SE2d 344) (2010). Higdon has not shown that the trial court abused its discretion.

Judgments affirmed in Case Nos. A12A1763 and A12A2188.

Appeal dismissed in Case No. A12A2145. McFadden and McMillian, JJ., concur.

       Dr. Higdon’s motion for new trial is still pending in the divorce action.

       Dr. Higdon has also filed other discretionary applications related to his divorce in this Court -A12D0163 and A12D0140 - which were denied.

       The trial court acknowledged the complicated procedural posture of the case in that Dr. Higdon’s motion for new trial from the final judgment and divorce decree acted as supersedeas to any further actions related to the custody of the children. Rather than apply the temporary order which granted Dr. Higdon joint legal custody of the children, the trial court excepted from supersedeas the child custody provisions in the final judgment and divorce decree pursuant to OCGA § 9-11-62 (b), thus permitting the trial court’s final ruling on child custody to control.

       “The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.” OCGA § 19-9-23 (d).


author: DOYLE, Presiding Judge.

text:
    A12A1768, A12A1880, A12A1881, A12A1882.
    LEVINE v. SUNTRUST ROBINSON HUMPHREY; and vice versa.
    (740 SE2d 672)
   DOYLE, Presiding Judge.

These consolidated appeals arise from an action filed in Fulton County Superior Court by Morton P. Levine, as the Chapter 11 Bankruptcy Trustee for the estate of Flooring America, Inc. (f/k/a The Maxim Group, Inc.; hereinafter “Maxim”) against SunTrust Robinson Humphrey (f/k/a The Robinson-Humphrey Company, LLC; hereinafter “SunTrust”), alleging damages to the estate of Maxim as a result of SunTrust’s professional negligence; breach of contract; negligent misrepresentation; fraud; aiding and abetting fraud on the part of culpable Maxim board members; breach of fiduciary duty; aiding and abetting CEO A. J. Nasser’s breach of fiduciary duty; and civil conspiracy in concert with Nasser, other board members, and other fiduciary defendants in relation to SunTrust’s role as financial advisor to Maxim in connection with (1) a 1998 purchase of 266 retail stores from Shaw Industries (“the Shaw Transaction”); and (2) a 1999 sale of Maxim’s manufacturing subsidiary (“the Image Transaction”).

As an initial matter, we note that neither Maxim nor SunTrust has fully complied with Court of Appeals Rule 25 (c) (2) (iii), which requires that references to the record be indicated by specific record citations. And when record citations have been provided, in many instances citations given by both parties did not support the factual assertions in the briefs, while in some instances such assertions were completely unsupported with record cites.

We take this opportunity to “remind counsel that it is not the job of the Court of Appeals to cull the record on behalf of a party, and that a lack of proper citations greatly hinders our consideration of the issues on appeal.” The lack of supporting citations and the liberties taken by counsel in characterizing certain documentary evidence and deposition testimony is especially egregious in a case such as this, with a record involving over 218 volumes and over 19,000 pages of evidence relating to complex business transactions.

[W]hen ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

Viewed in the light most favorable to Maxim, at the time of the Shaw and Image Transactions, Maxim was a company in the floor covering industry, and it owned retail stores as well as a carpet manufacturing company known as Image. SunTrust was engaged as a financial advisor to Maxim for the first time in 1995 and served in that role on several transactions, including the two at issue. The first transaction was the 1998 Shaw Transaction, in which Maxim sought to purchase 266 retail stores from Shaw Industries; SunTrust was engaged in late 1997 to advise the company with regard to the transaction, including evaluating information about the transaction as provided by Maxim and Shaw and advising Maxim’s board via a fairness opinion regarding the potential transaction and its likely cost to Maxim’s business. The second transaction was the 1999 sale of the Image manufacturing arm, in which SunTrust was engaged to serve as financial advisor, including assisting Maxim to determine whether the sale of Image “was advisable.”

After Maxim acquired Shaw’s stores, it discovered various discrepancies between SunTrust’s analysis of the stores, concluding that the analysis had overvalued the stores by $132 million to $203 million. Although Maxim continued to receive profits from the manufacturing arm of its company, SunTrust contended that the market would react favorably to Maxim’s divestment of the Image subsidiary. In June 2000, however, Maxim filed for Chapter 11 bankruptcy protection.

After filing the petition, the bankruptcy court appointed Morton P. Levine as Trustee to oversee the estate. And in 2002, the Trustee filed the instant proceedings on behalf of the bankruptcy estate against various parties alleged to have negligently or intentionally caused the destruction of Maxim’s business by violating fiduciary duties, breaching contracts, and negligently or intentionally misrepresenting information about certain business transactions, which transactions led to the insolvency of the company. Although the complaint alleged claims against Maxim’s CEO Nasser and other members of Maxim’s board, the Trustee contended that if SunTrust and other fiduciary defendants had fulfilled their obligations by providing appropriate information to Maxim’s board regarding the Shaw and Image Transactions, the nonculpable board members would have been able to prevent those transactions, which transactions, among other things, led to the destruction and eventual liquidation of the corporation. The trial court appointed a Special Master to oversee the case, and all defendants except SunTrust settled with the Trustee.

Throughout the course of litigation, the parties filed various motions for dismissal and summary judgment, and SunTrust also moved to exclude the expert testimonies of James Harris, Harry Potter, and Alfred King. SunTrust also filed a statement of nonparties at fault. On August, 4, 2010, the Special Master signed a Final Order and Report, incorporating forty-nine separate suborders spanning a five-year time period, recommending that the trial court (1) grant partial summary judgment with respect to Maxim’s negligence claims to the extent that Maxim asked for damages equaling the entire destruction of the business; (2) grant summary judgment with respect to Maxim’s intentional tort claims of fraud, aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and conspiracy; (3) grant partial summary judgment to Maxim with regard to certain clauses within the parties’ engagement letters; and (4) exclude the expert testimonies of Potter and, in part, King. The Special Master also recommended (1) denying the parties’ remaining claims for summary judgment and (2) denying SunTrust’s motion to exclude Harris’s expert testimony. In its February 24, 2011 order, the trial court entered an order adopting the Special Master’s report and recommendation, and these appeals followed, which we have consolidated for review.

In Case No. A12A1768, Maxim appeals from the trial court’s order adopting the Special Master’s report, alleging that the trial court erred by (1) granting partial summary judgment with respect to the damage claims based on the Special Master’s erroneous conclusion that Maxim was required to show the exact amount of damages resulting from SunTrust’s breach; (2) granting summary judgment on Maxim’s fraud claims for lack of evidence of scienter; and (3) by excluding the expert testimonies of Potter and King. In Case No. A12A1881, SunTrust cross-appeals, alleging that the trial court erred by (1) failing to exclude the expert testimony of Harris; (2) denying partial summary judgment as to the remaining negligence claims; (3) denying summary judgment as to the negligent misrepresentation claim; (4) denying summary judgment as to the breach of fiduciary duty claim; (5) denying summary judgment as to the breach of contract claim; and (6) denying summary judgment on the basis of the in pari delicto doctrine. And in Case No. A12A1882, SunTrust appeals, alleging that the trial court erred by granting partial summary judgment to Maxim with regard to certain clauses within the parties’ engagement letters.

Case No. A12A1768

1. Maxim first argues that the trial court erred by granting partial summary judgment with respect to those portions of claims from which it argues that the entire destruction of the business flowed because the Special Master incorrectly determined that Maxim was required to provide evidence of apportionment of those damages at the summary judgment stage. We agree.

OCGA § 51-12-33 establishes the mechanism by which a trier of fact apportions damages. First, if the plaintiff is some degree responsible for its own injuries, the trier of fact determines the percentage of fault of the plaintiff, and the judge thereafter reduces the total amount of damages awarded in proportion to the plaintiff’s percentage of fault. Next, in cases involving an action against more than one actor, the trier of fact apportions the remaining damages among the liable actors according to each actor’s percentage of fault. In its case against SunTrust, Maxim is not required to prove a case against any of the parties who previously settled, it only is required to establish duty, breach, causation, and damages against SunTrust. The fault of third parties, however, is considered “if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives [required] notice . . . that a nonparty was wholly or partially at fault.”

To the extent that SunTrust urges that Page v. Braddy requires complete summary judgment as to all Maxim’s damages claims against SunTrust, it misreads the case. In Page, there were two separate injuries — timber converted on one side of a fence for which the defendant was responsible and timber converted on another side of a fence for which the defendant was not responsible. In that case, there was no testimony as to what the damage was for each injury, only testimony as to the total damage for the entire amount of timber converted. Here, in contrast, there is testimony that SunTrust’s actions may have led to the eventual liquidation of Maxim, and the two transactions for which SunTrust has alleged to have acted in a culpable manner were the proximate cause of that damage. Page, therefore, is inapposite because there was no allegation of an indivisible injury for which multiple defendants were liable. Instead, there were two independent tortfeasors with independent, divisible injuries.

Here, in the end, the jury may determine that SunTrust is not liable for any damage beyond overpayment for Shaw’s retail stores, or that SunTrust is liable only for a certain percentage of the ultimate losses of Maxim. But contrary to the finding of the Special Master, it is not a requirement at this stage that Maxim establish percentages of fault of SunTrust or any other actor, and the matter of apportioning the fault of SunTrust and any nonparties or Maxim, if any, is a matter for the jury. Moreover, the Supreme Court of Georgia recently held, without disapproving Polston v. Boomershine Pontiac-GMC Truck, Inc., that it is the defendant’s burden to establish a rational basis for apportioning fault to a nonparty. To the extent that Maxim has established that SunTrust’s alleged actions were the proximate cause of an approximate amount of damage, its claims survive summary judgment.

Here, the Special Master specifically determined that Maxim had established the existence of a fact question as to whether SunTrust’s actions in the Shaw Transaction and the Image Transaction led to Maxim’s business losses. Thus, the Special Master’s grant of partial summary judgment on the issue of the “entire destruction” damages, which was based on his incorrect reading of OCGA § 51-12-33, is hereby reversed.

2. Maxim also argues that the trial court erred by granting summary judgment based on lack of evidence of scienter with regard to its claims of fraud, aiding and abetting fraud, aiding and abetting a breach of fiduciary duty, and conspiracy.

(a) To prevail on its fraud claim, Maxim

must show that [SunTrust] made a false, material representation of an existing fact with knowledge that it was false or with reckless disregard as to whether it was true and that it was with the intent that it be acted upon by [Maxim]; and, further, that [Maxim] acted upon the misrepresentation in reasonable reliance of its truth in a manner reasonably foreseeable by [SunTrust] and to [Maxim’s] proximate injury.

Here, Maxim contends that the Special Master erred by finding that it failed to establish a fact question as to whether SunTrust committed fraud when it prepared its analysis of the Shaw Transaction. Maxim explains that it presented evidence sufficient to establish a question of fact as to whether SunTrust recklessly or intentionally misrepresented the various costs related to the acquisition of the Shaw stores, and SunTrust had a motive to misrepresent the financial condition of the stores in order to support the transaction because SunTrust received higher fees as a result of the completion of the transaction.

Given that fraud is inherently subtle, slight circumstances of fraud may he sufficient to establish a proper case. Proof of fraud is seldom ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required. Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.

Although slight, Maxim has presented sufficient evidence (including the fact that SunTrust doubled $10 million in vendor support strategies days before making its presentation to Maxim and failing to report millions of dollars of corporate expenses) that could authorize a jury to find that SunTrust’s analysis failures were made with the intent to deceive Maxim, that Maxim justifiably relied on those representations, and that damage therefrom ensued at the very least in the amount that Maxim allegedly overpaid for the Shaw stores. Although the fact that SunTrust stood to make $500,000 more in the event that the transaction closed could also support a finding of deception and intent to mislead on the part of SunTrust, rather than mere negligence. Accordingly, to the extent that the trial court order granted partial summary judgment as to Maxim’s fraud claim, it is hereby reversed.

(b) With regard to Maxim’s claims of aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and conspiracy, we affirm the grant of summary judgment. In its opening brief on appeal, Maxim contends that the same evidence of scienter supporting its fraud claim “is also evidence from which a jury could conclude that [SunTrust] acted with knowledge and intent required to support a verdict on any or all of the Trustee’s intentional tort claims.” Maxim fails to point to any nonspeculative evidence of conspiracy or collusion between SunTrust and other defendants; conclusory allegations are insufficient to establish error on the part of the Special Master, and therefore, to the extent that the trial court granted partial summary judgment as to these claims, that order is affirmed.

3. Finally, Maxim argues that the trial court erred by excluding expert testimony. We agree.

“The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.”

The standard for admissibility of expert testimony is governed by OCGA § 24-9-67.1 (b),[] which provides [if] scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise, if: (1) the testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.

(a) Alfred King. Maxim urges this Court to reverse the trial court’s order excluding the expert testimony of King regarding the value of Maxim. We agree.

(i) The Special Master found that King was qualified to provide an opinion of the value of Maxim, but determined that King’s valuation approach was not testable and that King had no prior experience using the procedure he used in this case. The Special Master’s conclusions, however, are unsupported by the record, and therefore, the determination to exclude the testimony on this basis was an abuse of discretion.

King testified that he used a standard valuation technique for assessing the true value of the business at various dates around the transactions. Although his valuation of the company at certain points differed from that based on a calculation using the relevant market capitalization for each time period, King explained the deviations he used in arriving at the amounts, and the reasons for those deviations; he explained that “[he] undertook the exact type of analysis [he] and all other valuation specialists utilize in valuing a business enterprise where public information is not available,” and that his real-world work in creating such valuations is reviewed by major accounting firms.

This is precisely the type of opinion that is susceptible to testing during cross-examination because the information King used at arriving at his opinions is available to the jury and to SunTrust and is not an untestable opinion.

(ii) The Special Master also determined that King’s testimony should be excluded on the basis that it is irrelevant because his testimony was “based on the notion that the net decline in the net asset value of Maxim over time [wa]s a valid measure of [SunTrust’s] liability.”

Here, the Special Master’s exclusion of King’s opinion is an abuse of discretion because, as King stated, his expert testimony was to provide an opinion of the value of Maxim over the course of time before and after events that led to the failure of the company including the Shaw and Image Transactions. His opinions are relevant for the jury to determine, in conjunction with other testimony and evidence, the amount of damages that SunTrust’s alleged actions may have caused, which necessarily requires consideration of opinion evidence as to the value of the business. Kang specifically stated that he was not providing an opinion as to the actual amount of damage that SunTrust caused or that the decline in value of the business was equivalent to an amount of damages.

Accordingly, the portion of the order excluding King’s expert opinion is reversed.

(b) Harry Potter. The Special Master excluded Potter’s testimony as irrelevant for the same reasons he excluded King’s without further discussion. Thus, based on our conclusions in Divisions 1 and 3 (a) (ii), supra, we reverse this portion of the order excluding expert testimony.

Case No. A12A1881

4. SunTrust argues that the trial court erred by failing to exclude the expert testimony of James Harris. We disagree.

(a) First, SunTrust contends that the Special Master incorrectly concluded that Harris’s opinion was reliable under OCGA § 24-9-67.1 (b) simply based on his experience, which SunTrust contends was foreclosed by the Supreme Court of Georgia in HNTB Ga., Inc. v. Hamilton-King.

In his order addressing SunTrust’s motion to exclude Harris’s testimony, the Special Master concluded that after reviewing Harris’s testimony, including his 55-page expert report, his 167-page rebuttal report, and over 1,000 pages of deposition testimony, Harris’s opinion should be admitted because he possessed extensive experience as a financial advisor and some experience with fairness opinions, as compared to the expert at issue in HNTB Ga., who had no practical experience with the particular practice of traffic control other than post-retirement study. The Special Master’s decision acknowledged that Harris’s opinion lacked the normal testable methods under Daubert; however, he concluded that Harris’s opinion was based on his knowledge and professional experience of actually producing fairness reports.

(b) SunTrust also contends that even if its reading of HNTB Ga. was incorrect, Harris’s opinion should have been excluded because he failed during his deposition to cite the appropriate standard of care for financial advisors and because his opinions were excluded in the case of In re: Nellson Nutraceutical, Inc The Nellson case, however, is inapplicable here because that court found Harris’s valuation of the company based on the methodology of discounted cash flow analysis to be unreliable. The court explicitly did not determine that Harris himself lacked the experience and expertise necessary to have presented a valuation opinion based on a different methodology. Here, Harris was not called to testify as an expert in valuation, but rather as an expert as to the fiduciary duties of financial advisors, and SunTrust fails to point to a specific, testable portion of his testimony that is unreliable as did the creditors in the Nellson case. Although SunTrust contends that Harris failed to follow accepted authorities on the subject, SunTrust fails to state what those standards were or provide argument as to how Harris’s opinion deviated from those standards in a way which would render his opinion of SunTrust’s performance unreliable.

It is helpful to remember that

Dauberfs list of specific factors neither necessarily nor exclusively applies to all experts or in every case. In some cases (even cases involving non-scientific expert testimony), the factors may be pertinent, while in other cases the relevant reliability concerns may focus upon personal knowledge or experience. Whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.

Accordingly, SunTrust has failed to establish that the Special Master’s denial of its motion to exclude the expert testimony of Harris (or the trial court’s adoption of that denial) was a manifest abuse of discretion, and this enumeration is therefore without merit.

5. SunTrust also argues that the trial court erred by denying complete summary judgment as to all of Maxim’s claims because it failed to establish evidence of any damages that were proximately caused by SunTrust’s actions to the exclusion of all other causes; however, based on our holding in Division 1, this enumeration is without merit.

6. SunTrust argues that the trial court erred by denying summary judgment as to Maxim’s negligent misrepresentation claim.

[O]ne who supplied information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.

(a) SunTrust first argues that the trial court should have granted summary judgment as to this claim because the claim of negligent misrepresentation is not available to contracting parties.

Relying on Hendon Properties, LLC v. Cinema Dev., LLC, SunTrust argues that the tort of negligent misrepresentation is unavailable to a party in privity with the alleged misrepresenting party. It is true that in Hendon Properties, this Court stated in dicta that “negligent misrepresentation, being a tort, presupposes the absence of an enforceable contractual relationship between the parties.” This mischaracterizes the cited authority, Robert & Co. Assoc. v. Rhodes-Haverty Partnership, which does not stand for the proposition that all claims of negligent misrepresentation are barred when the two parties are in privity. Instead of foreclosing the possibility of bringing a negligent misrepresentation claim against an individual with whom the plaintiff was in privity, Robert & Co. affirmatively stated that certain individuals not in privity with a defendant could seek redress under the cause of action. And in any event, the statement in Hendon Properties was dicta, it is not binding authority on the matter, and we do not follow it here.

(b) SunTrust also argues that Maxim’s claim fails because Sun-Trust only supplied information based on data provided by Maxim and Shaw, because members of Maxim’s board did not recall finding error with SunTrust’s work at the time of the Shaw Transaction, or because other fiduciaries independently verified the information provided by SunTrust. These arguments are unpersuasive. The testimony of board members stating conclusions of law is insufficient to establish error in the Special Master’s determination that a question of fact exists as to whether the information provided to Maxim, which included Shaw’s information later found to be incorrect, was negligently passed on to Maxim by SunTrust. Even if SunTrust disclosed that it was relying on data provided by Shaw, that does not foreclose at the summary judgment stage the possibility that SunTrust was negligent in representing that data as true if it knew or should have known that the data was inaccurate. Accordingly, SunTrust has failed to establish that the Special Master erred by finding the existence of a question of fact as to this cause of action.

7. SunTrust argues that the trial court erred by denying summary judgment as to the breach of fiduciary duty claim. We disagree.

“A claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.”

The existence of a confidential [or fiduciary] relationship is a question for the jury. Such relationship may be created by law, contract, or the facts of a particular case. Moreover, [because] a confidential relationship may be found whenever one party is justified in reposing confidence in another, the existence of this relationship is generally a factual matter for the jury to resolve.

(a) SunTrust first argues that the Special Master should have granted summary judgment as to this claim because it did not owe a fiduciary duty to Maxim. Nevertheless, the Special Master correctly determined that the issue of the existence of a fiduciary relationship is a question for the jury unless there is a complete absence of evidence of such a relationship, which is not the case here.

(b) Citing 12 pages of deposition testimony, SunTrust contends that Maxim has failed to establish a breach of any fiduciary relationship because “[njone of the participants in either the Shaw or Image [Transactions] ever claimed that [SunTrust] did something wrong or did not do something it was supposed to.” Those statements mostly amount to a lack of any recall of any discussion at Maxim about whether SunTrust was negligent with regard to the two transactions, with one exception that consisted of a board member stating that SunTrust’s fairness report appeared to contain the type of analyses that other companies would have used, and in his opinion SunTrust provided a good report. Such statements are insufficient to establish that the Special Master erred by finding an existing question of fact that a breach occurred.

8. SunTrust argues that the trial court erred by denying summary judgment as to the breach of contract claim because “the Special Master and [Maxim failed to cite] any evidence that shows [SunTrust] did not do exactly what it was contractually obligated to do.” We disagree.

Court of Appeals Rule 25 (a) (1) provides: Record and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court. Court of Appeals Rule 25 (c) (2) (i) provides: Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration. And it is not the function of this Court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.

Without providing any citation to authority, and without stating what it was required to do under the contract or how it completed those requireménts, SunTrust merely cites to the same 12 pages of deposition testimony summarized in Division 7 (b), supra. This is simply insufficient to establish error on the part of the Special Master or to show that no questions of fact exist as to whether SunTrust breached any contractual obligations with Maxim over the course of the two transactions at issue. It is incumbent on the party alleging error to demonstrate it within the record, especially in one of this magnitude, and SunTrust simply has failed to establish that the Special Master was incorrect to find such a fact question existed.

9. SunTrust argues that the trial court erred by denying summary judgment on the basis of in pari delicto doctrine. We disagree.

OCGA § 23-1-15 states that “[w]hen both parties are equally at fault, equity will not interfere but will leave them where it finds them. The rule is otherwise if the fault of one decidedly overbalances that of the other.” Relying on this, SunTrust contends that Maxim is barred from asserting claims against it because Maxim’s board members and directors were equally or more at fault for the economic losses sustained by the business as a result of the acquisition of the Shaw stores and the sale of Image.

The Code section stands for the proposition that when two parties are equally at fault, one may not recover from the other; however, as the Special Master correctly determined, there are questions of fact here about the relative fault of each party. Maxim is not completely foreclosed from recovery unless it is shown that its own negligence or fraud was equal to or greater than that of any negligence or fraud on the part of SunTrust, as the Special Master and trial court correctly determined, and the Special Master’s denial of summary judgment on this issue to SunTrust was merely a finding that such fact questions exist and not that SunTrust is foreclosed from making these arguments to the jury.

Case No. A12A1882

10. Finally, SunTrust contends that the trial court erred by granting partial summary judgment in favor of Maxim with regard to specific language contained in the parties’ engagement letters for the Shaw and Image Transactions.

Pretermitting whether SunTrust should have incorporated this argument into a single brief on appeal with the arguments contained in Case No. A12A1881, because we find no error with the Special Master’s order, we affirm that portion of the grant of partial summary judgment.

“[T]he construction of a contract is a question of law for the court that is subject to de novo review. Where contract language is unambiguous, construction is unnecessary!],] and the court simply enforces the contract according to its clear terms.”

(a) The Engagement Clauses. SunTrust takes issue with that portion of the Special Master’s final order that addressed clauses within the engagement letters for the two transactions at issue. The Shaw clause states: “[t]his financial advisory engagement is intended to provide the necessary advice, direction!],] and support to maximize shareholder value for [Maxim] in whatever form or direction or through whatever Transaction or series of Transactions makes the most sense.” Similarly, the Image clause states that Maxim “engages [SunTrust] to serve as [Maxim’s] financial advisor for the purpose of... assisting [Maxim] and its Board of Directors in its consideration of various strategic alternatives, including determining whether a sale of its wholly-owned subsidiary Image Industries, Inc____is advisable ” The Special Master simply determined that these clauses, in conjunction with other disputed material facts, create a jury question as to the extent of the contract services that SunTrust was engaged to provide and whether those services were not provided by SunTrust, resulting in a breach of contract.

(b) The Indemnity/Right to Rely Provisions. Finally, the Special Master addressed the question of whether the Indemnity or Right to Rely Provisions of the two engagement letters completely foreclosed the actions at hand.

(i) The Image engagement letter stated that “[Maxim] agreed to indemnify and hold harmless [SunTrust]... from any losses, claims, damages [,] or liabilities relating to . . . [SunTrust’s] engagement letter” subject to additional portions of the Indemnity Clause, which limited the indemnity to cases not involving gross negligence or bad faith. The Special Master determined that questions of fact exist as to whether such circumstances existed. This reading is supported by the plain language of the engagement letter.

(ii) The Shaw letter stated that

[Maxim] shall indemnify [SunTrust] and hold it harmless against any losses, claims, damages [,] or liability to which [SunTrust] may become subject arising in any manner out of or in connection with the rendering of services by [SunTrust] hereunder, if it is finally judicially determined that such losses, claims, damages [,] or liability arose as a result of any information furnished by [Maxim] to [SunTrust] or to any third party being false or misleading in any material respect.

With regard to this provision contained in the engagement letter, the Special Master essentially held that this provision did not shield SunTrust from liability for information obtained from Shaw for use in the fairness report regarding the Shaw Transaction although it would foreclose liability based on information obtained from Maxim. This finding is based on an unambiguous and clear reading of the engagement letter, and it does not constitute a finding that Sun-Trust actually committed any negligence or fraud with regard to that transaction or that SunTrust obtained or used any information from parties other than Maxim. Thus, the Special Master correctly determined that this provision did not completely foreclose Maxim’s claims against SunTrust because questions of fact existed as to whether SunTrust wrongfully provided false or misleading information to Maxim, which SunTrust obtained from parties other than Maxim, thereby causing damage to the company.

Case No. A12A1880

11. Finally, Maxim’s duplicate appeal docketed as Case No. A12A1880 is hereby dismissed as moot.

Judgment affirmed in part and reversed in part in Case Nos. A12A1768 and A12A1881. Judgment affirmed in Case No. A12A1882. Appeal dismissed as moot in Case No. A12A1880.

Andrews, P. J., and Boggs, J., concur.

Decided March 22, 2013

Reconsideration denied April 10, 2013

Levine, Block & Strickland, Morton P. Levine, Stephen H. Block, for appellant.

Jones Day, Gregory R. Hanthorn, Jean-Paul Boulee, for appellee.

       Maxim’s complaint also named eight other corporate and individual defendants, who have since settled the claims with the Trustee.

       (Footnote omitted.) Latimore v. City of Atlanta, 289 Ga. App. 85, 86 (1) (656 SE2d 222) (2008).

       (Citations and punctuation omitted.) EZ Green Assoc. v. Ga.-Pacific Corp., 318 Ga. App. 655, 657-658 (1) (a) (734 SE2d 485) (2012).

       See id.

       A number of these motions were filed by Merrill Lynch with which SunTrust joined. Merrill Lynch eventually settled with the Trustee.

       The parties stipulated that the provisions of the Georgia Tort Reform Act of 2005 govern. See Ga. L. 2005, p. 1, § 12.

       Of course, in the event that the jury determines that Maxim is 50 percent or more responsible for the injuries, then Maxim would not recover. See OCGA § 51-12-33 (g).

       See McReynolds v. Krebs, 290 Ga. 850, 850-851 (1) (a) (725 SE2d 584) (2012), quoting OCGA § 51-12-33 (a).

       See id. at 851 (1) (a), quoting OCGA § 51-12-33 (b).

       OCGA § 51-12-33 (d) (1).

       255 Ga. App. 124 (564 SE2d 538) (2002).

       See id. at 125-126.

       See id. at 127.

       See id.

       See McReynolds, 290 Ga. at 853 (1) (b) (“Despite having ample opportunity to develop evidence against [a settling nonparty], [the defendant] conceded at the beginning of the trial that she had no evidence regarding [the settling nonparty’s] potential liability other than the allegations in [the plaintiff’s] complaint. The lack of evidence on which apportionment could be based also defeats [the defendant’s] claim that she was entitled to apportionment under OCGA § 51-12-33 (c) and (d) on the ground that [the] nonparty... was partially at fault for [the plaintiff’s] injuries and [had] entered into a settlement agreement with [the plaintiff].”) (citations and punctuation omitted).

       See Couch v. Red Roof Inns, Inc., 291 Ga. 359, 366 (1) (729 SE2d 378) (2012).

       262 Ga. 616 (423 SE2d 659) (1992).

       See Couch, 291 Ga. at 366 (1), citing Polston, 262 Ga. at 619.

       See Wright v. Apartment Investment and Mgmt. Co., 315 Ga. App. 587, 591-592 (1) (c) (726 SE2d 779) (2012). See also CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301, 303 (1) (464 SE2d 897) (1995).
      The rule against recovery of speculative damages relates primarily to speculation regarding proximate cause rather than extent. Once a plaintiff establishes that damages proximately flow from the defendant’s alleged conduct, mere difficulty in fixing their exact amount should not he a legal obstacle to recovery. If a plaintiff can show with reasonable certainty the total amount of damages and the degree to which those damages are attributable to defendant, that is sufficient to support an award.
      (Citation and punctuation omitted.) Wright, 315 Ga. App. at 591 (1) (c).

       (Punctuation omitted.) McKesson Corp. v. Green, 299 Ga. App. 91, 93 (683 SE2d 336) (2009).

       To the extent that Maxim stated a fraud claim as to the Image Transaction, the Special Master determined that Maxim abandoned any claim; on appeal Maxim has failed to challenge that finding, and therefore, to that extent, the trial court’s grant of partial summary judgment as to this issue stands. See Court of Appeals Rule 25 (a) (3) and (c) (2). See also Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 314 Ga. App. 360, 365 (1) (724 SE2d 53) (2012).

       (Punctuation omitted.) Almond v. McCranie, 283 Ga. App. 887, 889 (2) (643 SE2d 535) (2007) .

       See, e.g., Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 82-83 (1) (663 SE2d 779) (2008). Compare with Premier/Ga. Mgmt. Co. v. Realty Mgmt. Corp., 272 Ga. App. 780, 785-787 (3) (a) (613 SE2d 112) (2005) (no showing of damages from alleged fraud).

       See, e.g., Lively v. Garnick, 160 Ga. App. 591, 592 (1) (287 SE2d 553) (1981).

       See City of College Park v. Sheraton Savannah Corp., 235 Ga. App. 561, 564 (6) (509 SE2d 371) (1998). See also Court of Appeals Rule 25 (o) (2) (deeming an argument abandoned when a party offers no citation of authority or meaningful argument in support of an enumeration of error). See also Premier/Ga. Mgmt. Co., 272 Ga. App. at 788 (3) (c) (“To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort.”) (punctuation omitted). Accord R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 867-868 (4) (601 SE2d 177) (2004) (explaining that technically speaking there is no civil claim for conspiracy apart from the claims for damages from torts committed by the overt acts of the individuals alleged to have conspired to commit tortious injury).

       (Punctuation omitted.) Butler v. Union Carbide Corp., 310 Ga. App. 21, 25 (1) (712 SE2d 537) (2011).

       See OCGA §§ 24-7-702, 24-7-703 (effective Jan. 1, 2013).

       (Punctuation omitted.) Butler, 310 Ga. App. at 25 (1). See also Kumho Tire Co. v. Carmichael, 526 U. S. 137 (119 SC 1167, 143 LE2d 238) (1999); Gen. Elec. Co. v. Joiner, 522 U. S. 136 (118 SC 512, 139 LE2d 508) (1997); Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).

       (Emphasis supplied and omitted.)

       We note that while the Special Master makes no further discussion of Potter’s qualifications, a review of his curriculum vitae establishes that he is qualified to provide such opinions, and indeed, he previously has testified as a forensic accountant on the issue of causation of damages in many other similar matters. See, e.g., Grant Thornton, LLP v. FDIC, 694 FSupp.2d 506, 522-523 (VII) (S.D. W.Va. 2010), reversed on other grounds by Grant Thornton, LLP v. FDIC, 435 Fed. Appx. 188 (4th Cir. 2011); FDIC v. Bakkebo, 506 F3d 286, 294 (I) (B) (5) (4th Cir. 2007); Bays Exploration, Inc. v. PenSa, Inc., Case No. Civ-07-754-D (2012 U. S. Dist. LEXIS 133137) (W.D. Ok. 2012) (unpublished).

       287 Ga. 641 (697 SE2d 770) (2010).

       See id. at 645 (2). See also Brady v. Elevator Specialists, Inc., 287 Ga. App. 304, 306-307 (1) (653 SE2d 59) (2007) (upholding denial of motion to exclude expert testimony because despite the fact that the expert’s opinion of industry standard could not be tested or shown in a publication “in some cases, ‘the relevant reliability concerns may focus upon personal knowledge or experience,”’ and citing Cotten v. Phillips, 280 Ga. App. 280, 286 (663 SE2d 655) (2006), for the proposition that “Dauberf s role of ensuring that the courtroom door remains closed to junk science is not served by excluding testimony supported by extensive relevant experience”).

       356 B.R. 364, 377-378 (B.C. Del. 2006).

       3 65 B.R. at 374-375.

       3 65 B.R. at 377-378.

       (Punctuation and emphasis omitted.) First Tennessee Bank Nat. Assn. v. Barreto, 268 F3d 319, 335 (II) (B) (1) (6th Cir. 2001) (upholding district court’s admission of banking expert’s testimony even though its determination of the reliability of his testimony rested largely upon his experience in the industry).

       (Punctuation omitted.) Badische Corp. v. Caylor, 257 Ga. 131, 132-133 (356 SE2d 198) (1987).

       275 Ga. App. 434, 439 (2) (a) (620 SE2d 644) (2005).

       Id.

       2 50 Ga. 680 (300 SE2d 503) (1983).

       See id. at 681-682. See also Glens Falls Ins. Co. v. Donmac Golf Shaping Co., 203 Ga. App. 508, 512 (3) (417 SE2d 197) (1992) (“The breach of this legal duty, imposed by contract, but existing in law apart from the contractual obligation, may constitute both a tort arising from the contract, and a breach of the contractual relationship itself. In such tort cases the injury to the plaintiff has been an independent injury over and above the mere disappointment of plaintiff’s hope to receive his contracted-for benefit.”) (citation and punctuation omitted); OCGA § 51-1-11 (a) (“no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract. . . .”).

       See 275 Ga. App. at 438 (2) (a).

       (Citation and punctuation omitted.) All Business Corp. v. Choi, 280 Ga. App. 618, 621 (1) (634 SE2d 400) (2006).

       (Citation and punctuation omitted.) Tankersley v. Barker, 286 Ga. App. 788, 790 (1) (651 SE2d 435) (2007).

       Compare with R. W. Holdco, Inc., 267 Ga. App. at 865 (1) (b) (holding that no factual dispute existed as to whether defendant breached an alleged fiduciary duty because the defendant “did not recommend the transaction. It did not counsel [the plaintiff] on the wisdom of entering into the transaction. It provided no investment advice.”).

       (Citation and punctuation omitted.) EZ Green Assoc., 318 Ga. App. at 661-662 (3).

       See Holmes v. Henderson, 274 Ga. 8, 8-9 (1) (549 SE2d 81) (2001); BEA Systems v. Webmethods Inc., 265 Ga. App. 503, 510-511 (2) (595 SE2d 87) (2004).

       (Citations and punctuation omitted.) Moore & Moore Plumbing, Inc. v. Tri-South Contractors, Inc., 256 Ga. App. 58, 61 (1) (567 SE2d 697) (2002).

       See id.

       (Emphasis supplied.)

       Compare with The HA 2003 Liquidating Trust v. Credit Suisse Securities (USA) LLC, 2006 U. S. Dist. LEXIS 97361 at *19 (Case No. 04 C 3163; N.D. Ill. 2006) (finding that engagement letter shielded financial advisor of liability because it stated that advisor would make recommendations based on information provided by client and target “without assuming any responsibility for independent investigation or verification thereof”) (unpublished).

       See Moore & Moore Plumbing, Inc., 256 Ga. App. at 61 (1).