author: Adams, Judge.

text:
    A11A1565.
    BABBITT v. THE STATE.
    (723 SE2d 10)
   Adams, Judge.

Ryan Babbitt appeals the denial of his motion to dismiss the State’s indictment charging him with ten counts of violating OCGA § 16-9-58, which prohibits a person from acting with fraudulent intent to buy agricultural products and failing or refusing to pay for those products within a certain amount of time. We granted Babbitt’s application for interlocutory review and now affirm.

Babbitt and the State agreed to the facts as stated in Babbitt’s motion to dismiss, although the parties asserted that they might present additional facts at the hearing. As stated in Babbitt’s motion, the facts show that in October 2007, Babbitt was living in Overbrook, Kansas and, in a telephone call with Dorris Barrett, owner of Barrett Livestock in Laurens County, Georgia, he arranged to purchase a large number of cattle. Between October 26, and December 1, 2007, Barrett Livestock made multiple shipments of hundreds of cattle to Babbitt in Kansas for a total cost of $365,350.99. The agreed facts also show that the parties did not reduce their agreement to writing; all communication between the parties was by telephone; Babbitt was never present in Georgia; Barrett Livestock did not specify a deadline for payment; and Babbitt never denied owing Barrett Livestock for the cattle. The parties agree, however, that payment was expected at some point in the future, relative to the order or delivery. On December 4 and 9, 2007, Babbitt wired Barrett Livestock payments of $77,000 and $28,000, respectively, leaving a balance of $260,350.99. But Babbitt failed to pay the balance, and in November 2008, he was charged with ten counts of violating OCGA § 16-9-58, one for each shipment, nine of which were documented with bills of lading that provide that title of the cattle did not pass until the seller actually received funds in payment. Barrett acknowledged that he had no knowledge of Babbitt’s intent regarding payment at the time of the sale.

Babbitt moved to dismiss the charges on the ground that venue does not lie in Laurens County. The trial court conducted a hearing and eventually ruled that venue was proper. At the hearing, Babbitt raised additional arguments, but the trial court held that they presented issues of fact for the jury.

1. Article VI, Section II, Paragraph VI of the 1983 Georgia Constitution requires that all criminal cases be tried in the county “where the crime was committed.” See also OCGA § 17-2-2 (a). Because OCGA § 16-9-58 contains no specific statutory venue provision, we begin our review with the language used to define the crime in the statute. See McKinney v. State, 282 Ga. 230 (647 SE2d 44) (2007) (construing criminal statute to determine location of venue for crime). The statute provides as follows:

Any person, either on his or her own account or for others, who with fraudulent intent shall buy cotton, corn, rice, crude turpentine, spirits of turpentine, rosin, pitch, tar, timber, pulpwood, Christmas trees, pine needles, horticultural crops, poultry and poultry products, cattle, hogs, sheep, goats, ratites, horses, mules, pecans, peaches, apples, watermelons, cantaloupes, or other products or chattels and fail or refuse to pay therefor within 20 days following receipt of such products or chattels or by such other payment due date explicitly stated in a written contract agreed to by the buyer and seller, whichever is later, shall be guilty of a misdemeanor; except that if the value of the products or chattels exceeded $500.00 such person shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than five years.

(Emphasis supplied.) OCGA § 16-9-58. Thus, the plain language of the statute criminalizes acting with fraudulent intent to buy the enumerated items and failing or refusing to pay for them within a certain time. “Studying ‘the key verbs which define the criminal offense in the statute is helpful in determining venue in doubtful cases.’ [Cit.]” State v. Kell, 276 Ga. 423, 425 (577 SE2d 551) (2003). The key verbs here are “buy” and “fail or refuse to pay,” and the crime is not complete until the failure or refusal occurs. Babbitt was indicted with the same language.

Babbitt is alleged to have arranged to buy goods from Laurens County and to have failed or refused to pay the seller. The Uniform Commercial Code provides that “[ujnless otherwise agreed” payment is due at the “time and place at which the buyer is to receive the goods. . . .” OCGA § 11-2-310 (a). Here, the parties agreed that a payment has not been made until “remittance is received”:

Customer purchasing and paying for livestock by check or draft expressly agrees that title does not pass to said purchaser, but is retained by owner until funds are actually received on the check or draft. Such check or draft is accepted only to the rules and practices of any bank in which it may be deposited for collection, and does not constitute a payment for livestock until remittance is received thereon.

Thus, there is some evidence that the place of payment was at the seller’s location, i.e., in Laurens County.

Here, assuming the State can prove fraudulent intent, under OCGA § 16-9-58 there is some evidence that Babbitt wrongfully failed or refused to pay the seller in Laurens County for the cattle he purchased. In addition, Babbitt made telephone contact with the seller in Laurens County to effect the purchase, the cattle were shipped from there, and Babbitt sent two payments there. Cf. Garmon v. State, 219 Ga. 575, 579 (134 SE2d 796) (1964) (under earlier version of statute, venue was proper in Worth County, Georgia when Kentucky purchaser made telephone arrangements to buy from seller in Worth County and sent trucks there to pick up cattle and deliver checks, which proved to be not covered by sufficient funds).

And even if Babbitt’s fraudulent intent arose in Kansas sometime after the cattle were shipped, the crime was not consummated until he failed or refused to pay. “If the commission of a crime under the laws of this state commenced outside the state is consummated within this state, the crime shall be considered as having been committed in the county where it is consummated.” OCGA § 17-2-2 (d). Based on the plain reading of OCGA § 16-9-58, the wording of the bills of lading, and Georgia law regarding venue, we conclude that the trial court did not err by denying Babbitt’s motion to dismiss.

In its order, the trial court noted that if Babbitt had been charged with theft, venue would be in Kansas; the State agrees, and Babbitt argues that it follows that venue is in Kansas for the alleged violation of OCGA § 16-9-58. But broadly speaking, theft criminalizes the act of taking. And Babbitt was not charged with theft but with violating a statute that criminalizes acting with fraudulent intent to buy certain items and then failing or refusing to pay for those items.

2. Babbitt also contends the trial court erred by denying his motion to dismiss on other grounds he raised at the hearing. Babbitt argued in the alternative that under the stipulated facts, he could not have committed the crime. He reasoned that if title to the cattle never passed to him in Kansas under the terms of the bills of lading, then there can be no crime under OCGA § 16-9-58 because it only deals with cash sales, not promises of future payment or consignment sales. But the current statute does not specify that it pertains only to “cash sales,” as the predecessor statute did, nor does it turn on when title passes to the buyer; the statute was specifically revised to extend its application to “all sales,” and payment must now be made within 20 days following “receipt of such products or chattels or by such other payment due date explicitly stated in a written contract. . . , whichever is later.” OCGA § 16-9-58. Thus, Babbitt’s citations to case law interpreting the earlier versions of the statute are inapposite regarding cash sales. And, given that the stipulated facts do not include that the transaction at issue included an explicit due date under the terms of a written contract, Babbitt’s argument that the indictment is insufficient must fail.

Decided January 27, 2012

Reconsideration denied February 15, 2012.

Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, for appellant.

Craig Fraser, District Attorney, Cheryl A. Banks, Assistant District Attorney, for appellee.

Babbitt also argues that since there is no evidence that he intended not to pay at the time of the sale, then no crime could have occurred during the Georgia telephone call. But again, the statute is not so limited. It simply requires fraudulent intent as a part of an act of buying and failing or refusing to pay. Moreover, whether and when he acted with such intent is a question of fact. We find no reversible error.

Judgment affirmed.

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

       The subjective intent of the accused relevant to a question of venue is a factual issue for the jury. State v. Evans, 212 Ga. App. 415, 416 (442 SE2d 287) (1994).

       We are not deciding whether venue could also be proper in Georgia counties other than where the seller is located, under other facts, where aspects of the crime occurred in a county other than where the seller was located. See generally State v. Kell, 276 Ga. 423, 425 (577 SE2d 551) (2003) (an “ongoing crime” “occurs in any county in which an act in furtherance of the crime is committed.”).

       The State apparently consented to this procedure. See Ewell v. State, 245 Ga. App. 610, 611 (1) (538 SE2d 523) (2000). See also State v. Henderson, 283 Ga. App. 111, 112 (640 SE2d 686) (2006) (“A criminal charge is generally dismissed only when there is a defect on the face of the indictment or accusation. [Cit.]”).

       Prior to 1959, Ga. Code § 5-9914 applied only to “cash sale[s].” Ga. L. 1941, p. 337, § 1. In 1959, the law was amended, and the preamble to the legislation states that the Code section was being amended “so as to extend the provisions of said section to all sales of such products . . . unless credit shall be expressly extended therefore; to delete the cash sale provision therefrom; to repeal conflicting laws; and for other purposes.” Ga. L. 1959, p. 143. The Code section, as amended, contained some of the relevant language that is in OCGA § 16-9-58 today, that is, it prohibits buying the enumerated agricultural products and failing or refusing to pay for them unless credit is expressly extended:
      Any person, either on his own account or for others, who shall buy [certain agricultural products], or other products or chattels, and shall fail or refuse to pay therefor or shall make way with or dispose of the same before he shall have paid therefor unless credit shall be expressly extended therefore, shall be guilty of a felony. . . .
      Ga. L. 1959, p. 144, § 1. See also Ga. Code § 5-9914 (1975). In 1983, OCGA § 16-9-58 was enacted with identical language. See State v. Fordham, 172 Ga. App. 853 (324 SE2d 796) (1984). In 2003, the statute was amended to add the requirement of “fraudulent intent”; also, the provision regarding an extension of credit was deleted and replaced with a provision that simply requires payment within 20 days or by the time required in a written contract, whichever is later. Ga. L. 2003, p. 369, § 1.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A11A2301.
    PISTACCHIO et al. v. FRASSO.
    (723 SE2d 322)
   Boggs, Judge.

This is the second appearance of this case before this court. We remanded this appeal in Pistacchio v. Frasso, 309 Ga. App. 583 (711 SE2d 98) (2011), because the trial court’s grant of the appellee’s motion to dismiss failed to make an express finding concerning whether the appellants’ delay in filing the transcript was unreasonable. On remand, the trial court made the requisite finding, and now we address the merits of the court’s dismissal of the appeal. For the following reasons, we affirm.

The trial court entered a judgment in favor of the appellee, Jerry Frasso, following a jury verdict in favor of Frasso and against Michael Pistacchio and Mary Lou Harris (the appellants) in this breach of contract action. On September 28, 2009, the appellants filed a motion for new trial which the trial court heard on March 4, 2010, and denied on April 19, 2010. The appellants filed a notice of appeal on May 18, 2010, requesting that the transcript of the proceedings be included on appeal, including the March 4, 2010 motion for new trial hearing. On the same day appellants filed the notice of appeal, counsel for the appellants contacted the trial judge’s official court reporter to inquire about the March 4, 2010 hearing transcript, but was unable to reach her and left a message.

The deputy clerk prepared the record and mailed a bill of costs to the appellants in a letter dated June 9, 2010. The bill of costs was return receipt dated for June 10, 2010, and filed on June 11, 2010. The deputy clerk received a call from the appellants’ counsel on June 17, 2010 informing her that appellants had received the bill of costs and were waiting on the judge’s court reporter to contact them. According to counsel, the deputy clerk advised “that she would wait on the transcript in order to update our final cost bill and would hold the appeal for us.” On June 18, the trial judge’s official court reporter contacted counsel for the appellants, and explained that another court reporter took down the March 4 hearing, and provided counsel with a phone number for the reporting agency.

On June 18, 2010, the appellants called the court reporter who took down the March 4 hearing, and left her a message. Four days later, on June 22, 2010, the court reporter contacted the appellants and told them she would send them an invoice for the transcript. The appellants received the court reporter’s invoice on June 23, and on June 29, sent an e-mail to the court reporter to “find out [the] option for payment for the transcript.” Nine days later, after receiving no response, the appellants forwarded payment in full to the court reporter on July 7, 2010. On August 2, 2010, Frasso filed a motion to dismiss the appellants’ appeal for failure to pay the bill of costs.

The March 4 hearing transcript was subsequently completed on August 9, 2010, and filed on August 10, 2010. On August 11, 2010, the appellants received a revised copy of the bill costs which they paid on August 12. Frasso amended his motion to dismiss on August 24, 2010, to assert that the appellants also failed to timely file the transcript. Following oral argument by counsel for the parties, the trial court granted the motion to dismiss with regard to the transcript. It was “not persuaded,” however, by Frasso’s argument with regard to the payment of costs.

In granting the motion, the court found that the appellants “failed to act with the requisite level of diligence” to ensure that the motion for new trial transcript was timely filed. The court found further:

Even if the [c]ourt were to find that the [cjourt’s official court reporter failed to timely return appellants’] phone inquirfies], the fact remains that the appellants] never sought a statutory extension pursuant to OCGA § 5-6-39.. . . While it is true that appellants are not accountable for delays caused by . . . court reporters after the transcript has been ordered properly . . . here, the appellants] did not properly order the transcript until well beyond the 30-day window.

The court concluded that the appellants’ delay in filing the transcript was unreasonable, inexcusable, and caused by the appellants. The statutory framework relevant here is as follows:

OCGA § 5-6-41 (c) provides that “where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense.” OCGA § 5-6-42 elaborates on this duty, specifying that the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39. In turn, OCGA § 5-6-48 (c) governs the dismissal of appeals and provides that “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by [the appellant].”

Bush v. Reed, 311 Ga. App. 328, 331 (715 SE2d 747) (2011). “In reviewing a trial court’s dismissal of an appeal pursuant to OCGA § 5-6-48 (c), this [c]ourt will not disturb the trial court’s findings absent an abuse of discretion.” (Citation and footnote omitted.) PJ Svcs. v. Equity Technologies Assoc., 295 Ga. App. 214, 215 (671 SE2d 264) (2008).

Here, the transcript was not filed until almost three months after the notice of appeal was filed. “A delay of more than 30 days in filing a transcript as provided by OCGA § 5-6-42 is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” (Citation, punctuation and footnote omitted.) PJ Svcs., supra, 295 Ga. App. at 216. And “the threshold question whether the delay was unreasonable refers principally to the length and effect of the delay.” (Citation and punctuation omitted; emphasis in original.) Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415 SE2d 908) (1992).

[D]elay is unreasonable where it may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

(Citation and punctuation omitted.) Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 536 (562 SE2d 818) (2002). The appellants argue that the delay here was not unreasonable because it did not cause the appeal to be docketed into a later term. They contend that even if they had filed the transcript 30 days from the notice of appeal (June 17), the case would have been docketed for the Court of Appeals September term, as the last day for docketing April term cases was April 15. See Court of Appeals Rule 12. The appellants argue further that the delay here could not be unreasonable because the transcript was filed five days before the Court of Appeals September term docket closed on August 15, and they paid costs to the trial court three days before August 15. See id. The appellants therefore conclude that with or without the delay, the case would have been docketed in the September term. But this conclusion is speculative. Frasso filed a motion to dismiss requiring resolution by the trial court prior to appellants’ filing of the transcript. So whether the trial court clerk could have transmitted the record, transcript and notice of appeal to this court within three days is conjecture. See OCGA § 5-6-43 (a) (clerk shall transmit record, transcript, and notice of appeal to appeals court within five days after filing of transcript); but see also OCGA § 15-6-80 (clerk not required to transmit case to appeals court until costs are paid by appellant).

The delay here discernibly delayed docketing of the record in the appellate court and prevented an appellate decision on the merits at the earliest possible date. See American Nat. Property & Cas. Co. v. Potts, 243 Ga. App. 645, 646-647 (534 SE2d 123) (2000) (month and a half delay unreasonable where it prevented placement of case at earliest possible calendar and delayed docketing and hearing); compare Sellers, supra, 262 Ga. at 206-207 (1) (b) (eleven-day delay was not unreasonable where record from clerk was not docketed in appeals court for three and one-half months after transcript was filed); Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 22 (1) (363 SE2d 265) (1987) (eleven-day delay in filing transcript did not prevent placement of case on earliest possible calendar or delay docketing). “[J]ustice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.” (Citation and punctuation omitted.) Adams v. Hebert, 279 Ga. App. 158, 159 (630 SE2d 652) (2006). The appellants have therefore failed to come forward with evidence to rebut the presumption that the delay was unreasonable.

The appellants have also failed to come forward with evidence to rebut the presumption that the delay was inexcusable. We have held that “[ajppellants are not accountable for delays caused by clerks of court or court reporters after the transcript has been ordered properly; appellants are held accountable only for delays that they cause.” (Citation and punctuation omitted.) Morrell v. Western Svcs., 291 Ga. App. 369, 373 (2) (662 SE2d 215) (2008). The delay here between July 7, 2010, when the appellants submitted payment for the transcript to the court reporter, and August 9, 2010, when the transcript was completed, was not caused by the appellants, but was rather due to the time needed for the court reporter to prepare the transcript. But the remainder of the delay was due to the failure of appellants to timely order the transcript. See id. (appellants not accountable for delays caused by court reporters after transcript has been ordered properly). The appellants did not determine the identity of the court reporter responsible for the transcript until June 18, one day after the 30-day window prescribed by OCGA § 5-6-42. Rather than inquire and determine what court reporter took down the hearing, the appellants wrongly assumed that the hearing was taken down by the trial judge’s court reporter. While the appellants argue that they attempted for several weeks to contact the judge’s court reporter, they failed to ask for an extension in light of their inability to contact her. And the “failure to obtain the required extension of time is one of the factors considered in whether a delay in filing a transcript is unreasonable and inexcusable.” (Citations and punctuation omitted.) Id. Moreover, even after determining the proper court reporter and receiving her invoice for payment, the appellants waited yet another two weeks to submit payment.

Decided February 15, 2012.

Winter, Capriola & Zenner, Richard J. Capriola, Eric B. Coleman, for appellants.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Wendy W Kraby, for appellee.

Under these circumstances, we cannot say that the trial court abused its discretion in finding that the appellants’ delay in filing the transcript was unreasonable, inexcusable and caused by the appellants. See Kelly v. Dawson County, 282 Ga. 189, 189-190 (646 SE2d 53) (2007).

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.


author: McFADDEN, Judge.

text:
    A11A1713.
    THOMAS v. THE STATE.
    (723 SE2d 5)
   McFADDEN, Judge.

After a jury trial, Tristan Thomas was convicted of seven counts of armed robbery, six counts of kidnapping and three counts of possession of a firearm during the commission of a felony. He appeals, challenging the sufficiency of the evidence as to the aspor-tation element of the kidnapping counts, the sufficiency of the indictment as to the armed robbery counts, the trial court’s failure to remove three jurors for cause, the admission of victim impact evidence and the effectiveness of his trial counsel in failing to object to that evidence. We find no merit in any of those arguments and therefore affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Robinson v. State, 297 Ga. App. 43 (676 SE2d 770) (2009). So construed, the evidence shows that in May and June 2006, appellant Tristan Thomas and Nicholas Guadalupe committed a series of robberies at businesses in Gwinnett County. Armed with a handgun, the pair entered the businesses, forced employees or customers in the businesses to the back of the respective stores, bound them with restraints, and stole money and other items from the victims and stores. Guadalupe pled guilty to the charges arising from the incidents and testified at Thomas’ trial. Among other things, he identified Thomas as the gunman during each of the armed robberies.

1. Thomas contends that there is insufficient evidence of aspor-tation to support the six kidnapping convictions. Citing Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), he argues that the movement of the victims was minimal and merely incidental to the armed robberies. However, under Garza,

even when the movement is of minimal duration and occurs before or during the commission of other offenses, asportation has been satisfied where the movement is not an inherent part of any other offense, and the movement creates an additional danger to the victims by enhancing the control of the perpetrators.

(Citation and punctuation omitted.) Onumah v. State, 313 Ga. App. 269, 270 (2) (721 SE2d 115) (2011).

The evidence in this case shows that on May 6, 2006, Thomas and Guadalupe entered a Metro PCS store wearing masks. The two men forced store employees Tarsha Grousee and Kimberly Burdette to move, at gunpoint, to an office in the back of the store and eventually into a bathroom, where they were left with their hands bound by plastic zip ties. Approximately a week later, Thomas and Guadalupe committed similar offenses at E-Warfare, a computer gaming store. They entered the store wearing masks and, using a gun, forced employees Jason Figueroa and Chris Cutchins, and customer Devon McLeod, to move to the back of the store. The three victims were eventually moved into a bathroom, where they were left with their hands and feet bound by plastic zip ties. Some three weeks later, Thomas and Guadalupe entered an Advance Auto Parts store and forced employee Steven Smitherman to lock the front doors and then move to the back of the store, where his arms were tied behind his back with zip ties.

Contrary to Thomas’ claim, the movement of the six victims was not merely an inherent part of the robberies committed at the stores because “their movement to the [backs of the stores] was not necessary to effect the completion of the . . . armed robber[ies].” Patterson v. State, 312 Ga. App. 793, 795 (1) (720 SE2d 278) (2011). Rather, the movement of the victims away from the storefronts, the use of zip ties to restrain the victims, and in two of the instances, the “herding [of] multiple victims into the small and confined bathroom[s,] made it easier for their [assailants] to control them — thus making the situation more dangerous for them.” (Citation omitted.) Thomas v. State, 289 Ga. 877, 880 (2) (717 SE2d 187) (2011). Accordingly, the evidence was sufficient to establish the asportation element of the kidnapping convictions. See id.; Patterson, supra; Onumah, supra.

2. Thomas claims that the trial court erred in denying his motion for a new trial on three of the armed robbery counts of the indictment because those counts did not allege that the property taken from the victims was the property of another, and thus the indictment failed to set out the offense of armed robbery. However, “a motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment.” (Citations omitted.) Harris v. State, 258 Ga. App. 669, 671 (1) (574 SE2d 871) (2002). Instead, “[a] claim attacking the legality of an indictment is cognizable in a motion in arrest of judgment or habeas corpus when no demurrer to the indictment is interposed before judgment is entered on the verdict. Otherwise, the claim is improperly before this court.” (Citations omitted.) Fairwell v. State, 311 Ga. App. 834, 842-843 (3) (717 SE2d 332) (2011). Thomas has not indicated or cited to any part of the record showing that he objected to the indictment in any manner before judgment or that he moved to arrest the judgment after conviction. Rather, this challenge to the indictment was raised for the first time in an amendment to the motion for new trial filed more than a year after the trial court had entered judgment. Thus, it appears that this claim was not properly raised in the lower court and is not properly before us. See id.

Moreover, to the extent that the . . . amended motion can be deemed the equivalent of a motion in arrest of judgment, a post-trial means by which a defendant may challenge an indictment as one would do in a general demurrer, we cannot address the merits of it because it was not timely filed. A motion in arrest of judgment must be filed within the term of court in which the judgment was rendered. OCGA § 17-9-61 (b).

(Citation and punctuation omitted.) Thompson v. State, 286 Ga. 889, 890 (2) (692 SE2d 379) (2010), overruled in part on other grounds, State v. Kelly, 290 Ga. 29, 31-32 (1) (718 SE2d 232) (2011). Here, however, the motion was untimely because it was filed several terms of court after the term in which judgment had been rendered. OCGA § 15-6-3 (20) (Gwinnett County Superior Court terms begin on the first Monday in March, June and December, and the second Monday in September).

Even if the claim were properly before us, it is without merit. Although the three challenged counts of the indictment do not use the word “another,” they clearly allege that the property taken from the immediate presence of the victims by use of a handgun was the property of the respective businesses where the robberies occurred. “[R]obbery is a crime against possession, and is not affected by concepts of ownership. Thus, it does not matter exactly whose property was taken so long as it was taken from a person or the immediate presence of another.” (Citations and punctuation omitted.) Ward v. State, 304 Ga. App. 517, 522 (1) (a) (696 SE2d 471) (2010). Accordingly, we find no error.

3. Thomas argues that the trial court erred in failing to strike for cause potential juror Muhammed Rizwan due to a language barrier, and potential jurors Amanda Puckett and Paul Whitehouse because they indicated that they thought the defendant had to prove his innocence. As to potential juror Rizwan, the argument is misplaced because the record reveals that the trial court did in fact strike him for cause.

With regard to jurors Puckett and Whitehouse, it is true that they initially indicated that they believed the defendant had to prove his innocence. But upon further questioning, both stated that they would follow the judge’s instructions that the defendant does not have to prove his innocence and that the burden of proof is on the state. Both Puckett and Whitehouse also testified that they would be fair and impartial jurors.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Before a juror is excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

(Citations omitted.) Somchith v. State, 272 Ga. 261, 262 (2) (527 SE2d 546) (2000). “An appellate court should not substitute its own finding for that of the trial court, since it must pay deference to the trial court’s determination. This deference encompasses the trial court’s resolution of any equivocations and conflicts in the prospective jurors’ responses on voir dire.” (Citations omitted.) Greene v. State, 268 Ga. 47, 49 (485 SE2d 741) (1997). In the instant case, the prospective jurors’ responses did not show that their opinions were so fixed that they could not decide the case based on the evidence and the court’s charge. “Though [their] responses were admittedly equivocal regarding the burden of proof, we cannot find that the trial court abused its discretion in finding [the prospective jurors] qualified. [Cit.]” Thorpe v. State, 285 Ga. 604, 607 (3) (b) (678 SE2d 913) (2009).

4. Thomas waived appellate consideration of his claim that testimony from two victims constituted impermissible victim impact evidence because he failed to object to the testimony at trial. See Colon v. State, 275 Ga. App. 73, 75 (2) (619 SE2d 773) (2005).

5. Thomas complains that his trial counsel was ineffective in failing to object to the two victims’ improper victim impact testimony. To establish ineffective assistance of counsel, Thomas must show both that his counsel’s performance was deficient and that the defense was prejudiced to the extent that, but for that deficient performance, a reasonable probability exists that the outcome of the trial would have been different. Lacey v. State, 288 Ga. 341, 343 (4) (703 SE2d 617) (2010). Pretermitting whether counsel’s performance was deficient, Thomas cannot show prejudice.

Thomas contends trial counsel should have objected when Kyle Puttkammer testified that it has been difficult for him to move on from having been confronted by a masked gunman. However, Thomas was charged with four offenses for which Puttkammer was the alleged victim, and the jury found him not guilty of all four offenses. Thus, Thomas clearly was not prejudiced by the lack of an objection to Puttkammer’s testimony.

Thomas also claims that his attorney deficiently failed to object when a former employee of Advance Auto Parts testified that he no longer worked there because what had happened was traumatic. But given the overwhelming evidence of Thomas’ guilt, including the testimony of his accomplice and other victims, “we cannot conclude that the victim’s testimony as to [no longer working at the store] contributed to the jury’s verdict.” Taylor v. State, 264 Ga. App. 665, 670 (5) (592 SE2d 148) (2003). Since he was not prejudiced, Thomas has failed to establish ineffective assistance of counsel.

Decided January 26, 2012

Reconsideration denied February 16, 2012

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Dillard, Judge.

text:
    A11A1632.
    WOOD v. B&S ENTERPRISES, INC.
    (723 SE2d 443)
   Dillard, Judge.

In this wrongful-death action, Janet Wood, on behalf of the estate of her deceased husband, sued B&S Enterprises, Inc., alleging that the company was vicariously liable for the negligence of its employee, who fatally injured Daniel Wood in a motor-vehicle accident. Following a jury verdict and judgment in favor of B&S Enterprises, Wood appeals, arguing that the trial court erred in (1) charging the jury on the “special mission” doctrine, (2) refusing to charge the jury that use of a cell phone may constitute acting within the scope of one’s employment, (3) denying the jury’s request that certain testimony be repeated, (4) failing to excuse a potential juror for cause, and (5) finding that sufficient evidence supported the jury’s verdict. For the reasons set forth infra, we affirm.

Construed in favor of the verdict, the evidence shows that B&S Enterprises is a small construction company, which is solely owned and operated by George Barker. Other than Barker, B&S does not have any full-time employees. Instead, B&S hires independent contractors to assist Barker with various residential construction projects, usually involving the framing of houses. B&S pays those contractors for hours worked at the end of each week and does not withhold any taxes from their paychecks.

In the early morning hours on August 11, 2008, Francisco Esquibel — who had worked as an independent contractor for B&S on numerous occasions — was driving northbound on Georgia Highway 59, along with several co-workers, and was heading toward B&S’s workshop, which is located across the street from Barker’s home. As Esquibel approached Industrial Park Drive, he failed to notice that motorcyclist Daniel Wood had stopped to turn left at the intersection but was waiting for an oncoming motorist to turn right before he could do so. Consequently, Esquibel’s vehicle never slowed and instead collided into the back of Wood’s motorcycle. And as a result of the impact, Wood was thrown nearly 100 feet down the road and instantly killed.

Thereafter, Janet Wood, on behalf of her husband’s estate, sued B&S, alleging that her husband’s death was a result of Esquibel’s negligence and that B&S was liable for Esquibel’s negligence on the grounds of respondeat superior. B&S filed a motion for summary judgment, arguing that it could not be held liable for Esquibel’s negligence because Esquibel was an independent contractor and because, even if he was deemed an employee, he was not acting within the scope of his employment at the time of the accident. Finding that questions of fact existed as to both arguments, the trial court denied B&S’s motion, and the case proceeded to trial.

During the trial, the motorist who witnessed the accident testified regarding her observations, and several police officers testified regarding their investigation. In addition, Barker testified that although Esquibel was on his way to work on the morning of the accident, he was working as an independent contractor and not as an employee of B&S. Barker further testified that he (and not B&S) personally owned the vehicle that Esquibel was driving the morning of the accident; that he had loaned the vehicle to Esquibel for his unlimited use; and that he had not directed Esquibel to perform any particular task on his way to B&S’s workshop that morning.

At the conclusion of the trial, the jury rendered a verdict in favor of B&S, and one month later, the trial court issued a judgment affirming that verdict. Wood subsequently filed a motion for new trial, which the trial court denied after holding a hearing on the matter. This appeal follows.

1. Wood contends that the trial court erred in charging the jury on the “special mission” doctrine as it applies to the theory of respondeat superior. We disagree.

At the outset, we note that “a jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.” Additionally, “the review of allegedly erroneous jury instructions is a legal question, and we therefore owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” With these guiding principles in mind, we will now address Wood’s claim of error by first explaining what the “special mission” doctrine entails.

Under Georgia law, to hold a master liable for a tort committed by his servant, “it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment.” Indeed, “[t]he test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.” Furthermore, “[a]s a general rule, a servant in going to and from his work acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work.” However, this general rule does not apply “when an employee undertakes a ‘special mission’ at the specific direction or request of the employer.”

And here, B&S included an instruction regarding the “special mission” doctrine in its charge requests. Over Wood’s objection, the trial court agreed that the charge was appropriate and thus instructed the jury as follows:

Even when the employee is driving the employer’s vehicle, the employee’s travel to and from work is not within the scope of employment unless the employee undertakes a special mission at the specific direction of his employer or that special circumstances exist.

The application of the special mission exception requires that the errand or mission itself be a special or uncustomary one, made at the employer’s request or direction. An employee cannot unilaterally determine to undertake a special mission. The directive must come from the employer and contrary to Wood’s argument, there was no evidence to support a conclusion that Esquibel had undertaken a special mission at B&S’s request at the time of the accident. Indeed, although there was evidence that Esquibel was driving several co-workers to work that morning, Barker testified that he had not requested that Esquibel do so, and therefore, there was no evidence that Esquibel was doing so at B&S’s direction. Accordingly, this charge was apt, tailored to the evidence, and a correct statement of the applicable law, and the trial court did not err in giving it.

2. Wood also contends that the trial court erred in refusing to give the jury several instructions regarding how an employee’s use of a cell phone relates to determining whether the employee was acting within the scope of his employment at a particular time. However, at the conclusion of the trial court’s instructions to the jury, Wood objected only to the court’s charge on the “special mission” doctrine. And in order to preserve appellate review of a charging error, “an objection must clearly direct the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the specific ground upon which the charge is challenged.” Thus, Wood has waived this claim of error.

Moreover, even if Wood had objected, the trial court’s refusal to give the jury Wood’s instructions regarding the use of cell phones was not in error. Citing Hunter v. Modern Continental Construction Co., Inc. and Clo White Co. v. Lattimore, Wood requested several nonpattern jury instructions that essentially stated that an employer-provided cell phone and the employee’s use of that cell phone while commuting to work may provide evidence that the employee was acting within the scope of his employment. But contrary to Wood’s assertion, both Hunter and Clo White Co. hold that an employee might be acting within the scope of his employment when there is evidence that the employee “may have actually been on the phone regarding matters of company business at the time of the accident.” And here, while there was evidence that Barker had purchased a cell phone for Esquibel’s personal use, for which Esquibel was repaying Barker, there was no evidence that Esquibel was using the phone to call anyone, much less Barker, at the time of the accident. Given the foregoing, Wood’s requested cell phone jury instructions were not tailored to the evidence, and the trial court did not err in refusing to give them.

3. Wood further contends that the trial court erred in denying the jury’s request that portions of Barker’s deposition, with which Wood attempted to impeach Barker during Barker’s trial testimony, be repeated after the jury had begun their deliberations. We disagree.

The trial court may, in its discretion, “permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations^ but t]he court may also, in its discretion, refuse such a request.” Indeed, it has long been the law in Georgia that “a judgment will not be reversed because the trial court declines to aid the jury in recalling the evidence and refuses a request to have certain testimony read back.”

And here, during its deliberations, the jury sent a note to the trial court, indicating that the jurors wanted to review a portion of Barker’s deposition testimony that Wood used in an attempt to impeach Barker on cross-examination. Specifically, the note stated, “We want to see or hear these references from the deposition: Page 149, Line 8; Page 54; and Page 45, Line 3; and Page 23.” And after consulting with the parties, the trial court stated that it typically did not replay only portions of an examination or cross-examination of a witness. Consequently, the trial court brought the jury into the courtroom and responded to the request as follows:

Ladies and gentlemen, the entirety of the deposition itself, of course, was not introduced into evidence. The Court is unable to permit you to see or hear those references from the deposition. You will have to recall from your collective memory what questions were asked and what responses were made by the various witnesses in the case.

On appeal, Wood claims that the trial court’s response to the jury’s request prejudiced her case because it prohibited the jury from considering evidence that impeached Barker’s testimony at trial. However, Wood’s argument is belied by the fact that the jury did hear this evidence during trial. In fact, before he was even called as a defense witness, Barker was first subjected to a lengthy cross-examination, during which Wood’s counsel pointed out numerous alleged inconsistencies between Barker’s earlier deposition and his trial testimony. Accordingly, the trial court’s refusal to repeat merely a portion of that cross-examination was not an abuse of discretion.

4. Wood also contends that the trial court committed reversible error in failing to excuse a potential juror for cause. We disagree.

Georgia law presumes that potential jurors are impartial, “and the burden of proving partiality lies with the party seeking to have the juror disqualified.” And a “prospective juror’s doubt about his or her own impartiality does not demand as a matter of law that he or she be excused for cause.” Nevertheless, a potential juror must be excused for cause “if he or she holds an opinion so fixed and definite that he or she will be unable to set it aside and decide the case based on the evidence and the court’s charge on the evidence.” Furthermore, “trial courts have broad discretion to evaluate and rule upon a potential juror’s impartiality, based upon ‘the ordinary general rules of human experience. . . .’ ” In fact, “a trial court may only be reversed upon a finding of ‘manifest abuse’ of that discretion.”

During jury selection in the case sub judice, Wood’s counsel asked the jurors collectively if any of them had a problem with holding an employer liable for its employee’s negligence. One of the jurors responded, “I think that if the employer does his job and interviews his people outright and his people make a mistake I don’t think he should be required to pay up.” When Wood’s counsel then asked if the juror would have trouble following the law, the juror replied: “Yeah, I would.”

Shortly thereafter, the trial court questioned the juror about his earlier statement, and the following colloquy ensued:

[Juror]: If they’ve done their — I guess if they’ve got a driver’s license it looks like the employer isn’t responsible, then. I don’t think he should have to pay for whatever that employee did because of their stupidity or whatever. I don’t think that the — I think the employers are having to pay for things that shouldn’t be their responsibility.
The Court: Well, an employer is responsible for the acts of an employee when that employee is in the — is employed by and is acting in the scope of his employment at the time. Are you saying you just can’t follow that?
[Juror]: I won’t like following it, but I would do it as the law says I’m supposed to.
[Plaintiff’s counsel]: But you’re against that principle of law?
[Juror]: I’m against that principle, period. I think that it’s been overdone and them making employers or owners of places pay for stuff, that the person who was responsible for doing it should be the one paying. Not the employers.

At that point, Wood’s counsel requested that the juror be struck for cause. However, the trial court continued its inquiry and asked, “But you’re saying — are you saying you can put aside that personal belief and follow the law if I tell you the law is different?” The juror then responded, “Yes. I wouldn’t go to jail for the difference.” And based on the juror’s responses, the trial court denied Wood’s request that the juror be struck for cause. Consequently, Wood used a peremptory strike to dismiss the juror.

On appeal, Wood argues that the trial court erred in refusing to strike this juror for cause and that the court’s refusal forced her to use her peremptory strikes that she otherwise would have used on a different juror. However, we disagree that the court erred. It is important to note that the juror in this instance indicated that he had an unfavorable opinion about holding employers responsible for an employee’s negligence, but the juror did not express a bias for or against either of the parties. And “[a] juror who indicates a willingness to try to be objective and whose reservations relate to an issue in the case rather than to a party may be eligible for service.” Given that the juror in this instance ultimately stated that he could put aside his personal beliefs and follow the law, the trial court’s refusal to grant Wood a strike for cause did not constitute a manifest abuse of discretion.

Decided February 16, 2012.

Troy R. Millikan, for appellant.

Hicks, Casey & Foster, Richard C. Foster, Andrea A. Guariglia, for appellee.

5. Finally, Wood contends that the jury’s verdict and the trial court’s judgment was contrary to the weight of the evidence. This contention lacks merit.

It is well established that “[w]here a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it, as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” In fact, the appellate court must construe the evidence “with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.”

Here, as we noted in Division 1, supra, there was ample evidence that Esquibel was merely commuting to work when the fatal accident occurred, and there was no evidence that Barker had directed him to undertake any sort of special mission on his way to work. Thus, there was sufficient evidence to support the jury’s finding that Esquibel was not acting within the scope of his employment with B&S at the time of the accident. Accordingly, we affirm the jury’s verdict and the trial court’s judgment in favor of B&S.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

         See Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).

       Because his own vehicle was having mechanical problems, Esquibel was driving a vehicle that Barker personally owned but had loaned to Esquibel for his unlimited use.

       Following the accident, Esquibel was charged with, inter alia, homicide by vehicle in the second degree. Barker posted his bond, and Esquibel continued to work as an independent contractor for B&S for several more months. However, sometime in December 2008, Esquibel ceased all communication with Barker and could not be located to testify at trial.

        Boston Men’s Health Ctr., Inc. v. Howard, 311 Ga. App. 217, 221 (1) (715 SE2d 704) (2011) (emphasis and punctuation omitted).

        Id. (punctuation omitted).

        Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 639 (710 SE2d 839) (2011) (emphasis and punctuation omitted).

        Id. (emphasis and punctuation omitted).

        Hankerson v. Hammett, 285 Ga. App. 610, 613-14 (2) (647 SE2d 319) (2007) (punctuation omitted).

        Id. at 614 (2).

        See Betsill v. Scale Sys., Inc., 269 Ga. App. 393, 396-97 (1) (604 SE2d 265) (2004) (holding that even when employee was driving employer’s vehicle, employee was not acting within the scope of his employment absent evidence that he had undertaken a special mission at his employer’s direction); Hankerson, 285 Ga. App. at 614 (2) (same).

        Thompson v. Princell, 304 Ga. App. 256, 261 (b) (696 SE2d 91) (2010) (punctuation omitted); see also OCGA § 5-5-24 (a) (“ [I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he [or she] objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (emphasis supplied)).

        See Thompson, 304 Ga. App. at 261 (b).

       287 Ga. App. 689 (652 SE2d 583) (2007).

       263 Ga. App. 839 (590 SE2d 381) (2003).

        Id. at 840; see Hunter, 287 Ga. App. at 691 (reversing summary judgment in favor of defendant because plaintiff “came forward with evidence showing that [defendant’s employee] may have been on his cell phone regarding company business when the accident occurred”).

        See Sellers v. Burrowes, 302 Ga. App. 667, 672 (3) (691 SE2d 607) (2010) (holding that trial court did not err in refusing to give charge because plaintiff failed to demonstrate that his requested charge was tailored to the evidence).

        Fowler Props., Inc. v. Dowland, 282 Ga. 76, 80 (4) (646 SE2d 197) (2007) (punctuation omitted).

        Id.

        See id. (holding that trial court did not err in refusing to parse witness’s testimony or to have it replayed in its entirety); Compton v. State, 179 Ga. 560, 567 (6) (176 SE 764) (1934) (same).

        Elliott v. Home Depot U.S.A., Inc., 275 Ga. App. 865, 867 (2) (622 SE2d 77) (2005) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

        Kim v. Walls, 275 Ga. 177, 178 (563 SE2d 847) (2002) (punctuation omitted).

        Id.

        Elliott, 275 Ga. App. at 868 (2) n.8.; see Reddick v. State, 264 Ga. App. 487, 496 (5) (a) (591 SE2d 392) (2003) (holding that “a juror who expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service”).

        See Elliott, 275 Ga. App. at 868 (2) (holding that in the absence of any evidence that jurors’ opinions about preexisting injuries were so fixed and definite that the jurors could not be fair and impartial, the court did not abuse its discretion in failing to excuse them for cause).

        Harris v. Tutt, 306 Ga. App. 377, 378 (1) (702 SE2d 707) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        Torres v. Tandy Carp., 264 Ga. App. 686, 688-89 (1) (592 SE2d 111) (2003) (affirming the jury’s verdict in favor of defendant in light of the fact that there was ample evidence indicating that defendant’s employee was merely commuting to work and had not undertaken a special mission at employer’s direction when the injury to plaintiff occurred).


author: Ellington, Chief Judge.

text:
    A11A1696.
    LADNER v. NORTHSIDE HOSPITAL, INC.
    (723 SE2d 450)
   Ellington, Chief Judge.

In this medical malpractice case, Barbara Ladner, individually and as executrix of her deceased husband’s estate, appeals from the trial court’s grant of summary judgment to Northside Hospital, Inc. Ladner contends that the trial court erred in granting summary judgment based upon its ruling that she had failed to offer expert witness testimony on the specialized medical question of whether the hospital’s allegedly negligent credentialing of her husband’s surgeon to perform prostatic cryosurgery was the proximate cause of her husband’s postoperative complications and death. As explained below, it is unnecessary for this Court to reach the issue of whether Ladner was required to present expert witness testimony to show causation, however, because the undisputed evidence shows that the surgeon did not perform the cryosurgery negligently. Consequently, Ladner has failed to show that there is a jury question on the issue of whether the hospital’s alleged negligent credentialing caused her husband’s postoperative complications and death, and we affirm the trial court’s grant of summary judgment.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law.

(Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). Under OCGA § 9-11-56 (e), when a party moves for summary judgment and supports the motion by submitting affidavits, depositions, or answers to interrogatories, the opposing party

may not rest upon the mere allegations or denials of his [or her] pleading, but his [or her] response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he [or she] does not so respond, summary judgment, if appropriate, shall be entered against him [or her].

Further, “[although the nonmoving party on a motion for summary judgment is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative.” (Citation and punctuation omitted.) Whiteside v. Decker, Hallman, Barber & Briggs, 310 Ga. App. 16, 19 (712 SE2d 87) (2011). Ultimately,

on appeal from the denial or grant of summary judgment[,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. at 470. So viewed, the record shows the following facts.

Dr. Vahan Kassabian is a board-certified urologist who has been employed by Georgia Urology, EA., since 1994, the same year he began practicing at Northside Hospital. In May 2001, the hospital added prostatic cryosurgery to his list of privileges, and he performed eight such procedures prior to May 2002. On May 9, 2002, Dr. Kassabian performed prostatic cryosurgery on Ladner’s husband, Clyde Ladner, at the hospital to treat Mr. Ladner’s prostate cancer. No significant or unusual complications were observed during or immediately after surgery, and Mr. Ladner was released from the hospital the next day. During follow-up visits with Mr. Ladner on May 17 and June 7, Dr. Kassabian recorded that Mr. Ladner was experiencing bleeding, bruising, constipation, and discomfort, which are common postsurgical complications of prostatic cryosurgery; in addition, during the latter visit, Mr. Ladner exhibited symptoms of a bladder infection and was prescribed antibiotics.

Then, on June 12, five weeks after the cryosurgery, Mr. Ladner started experiencing problems with voiding his bladder and had blood clots in his urine. Dr. Kassabian provided some treatment and performed tests in his office the next day, and Mr. Ladner went home. That night, however, Mr. Ladner went to the hospital’s emergency room and was hospitalized due to unusual and excessive bleeding and abnormal results from blood tests. Over the next two weeks, Mr. Ladner’s condition worsened, and he required additional treatment and surgeries, including the removal of part of his intestines and colon. At some point during such treatment, it was determined that Mr. Ladner had sustained a rectal injury during the May 9 prostatic cryosurgery. Mr. Ladner remained hospitalized for three months (hereinafter, the “hospitalization”) and, despite treatment for the rectal injury and the other complications, he died on September 22, 2002.

Ladner sued Dr. Kassabian and his employer, Georgia Urology, alleging that Dr. Kassabian negligently performed the prostatic cryosurgery, that he breached the applicable standard of care by failing to timely diagnose and treat her husband’s postoperative complications, and that such negligence caused her husband’s injuries and death. The complaint also named the hospital as a defendant and alleged that it had negligently credentialed Dr. Kassabian to independently perform prostatic cryosurgery by failing to fully comply with its bylaws, its rules and regulations, and other applicable standards for the credentialing process.

The hospital answered and filed a motion for summary judgment, arguing, inter alia, that there was no evidence that its credentialing of Dr. Kassabian to perform prostatic cryosurgery — regardless whether such credentialing failed to comply with applicable standards — was the proximate cause of the postoperative complications Mr. Ladner experienced during his hospitalization or his eventual death.

Following a hearing on the hospital’s motion, the trial court ruled that, even if it were to assume that the hospital was negligent in credentialing Dr. Kassabian to perform the prostatic cryosurgery, the issue of whether such negligent credentialing was the proximate cause of Mr. Ladner’s postoperative complications and death constituted a specialized medical question for which Ladner was required to come forward with expert witness testimony, citing Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010). The trial court also determined that Ladner had not come forward with such evidence and, therefore, granted the hospital’s motion for summary judgment.

On appeal from that order, Ladner contends that the trial court erred in ruling that she was required to present expert witness testimony on the issue of proximate causation. She argues that the issue of whether the hospital’s negligent credentialing of Dr. Kassa-bian to perform prostatic cryosurgery was the proximate cause of her husband’s postoperative complications and death is the sort of medical question that lay jurors are qualified to answer using their experience and common knowledge. According to Ladner, it follows that the trial court erred in granting the hospital’s motion for summary judgment.

As explained below, however, it is unnecessary for this Court to decide whether the trial court erred in ruling that Ladner was required to present expert witness testimony to show that the alleged gaps in the credentialing process were the proximate cause of her husband’s postoperative complications and death, because Lad-ner presented no evidence of any kind from which a jury could find such causation. Thus, pretermitting whether the trial court’s conclusion was correct as to the need for expert witness testimony in this case, we conclude that its judgment granting the hospital’s motion for summary judgment was proper.

“[I]t is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citation, punctuation and footnote omitted.) Hardnett v. Silvey, 285 Ga. App. 424, 426 (646 SE2d 514) (2007). Further,

[bjefore any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Citations and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 121-122 (1) (643 SE2d 253) (2007). See Hardnett v. Silvey, 285 Ga. App. at 426 (“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof.”) (citation, punctuation and footnote omitted).

The record shows that Ladner presented the deposition testimony of two expert witnesses: Dr. John Hyde, an expert in the area of hospital credentialing of medical personnel, and Dr. Jeffrey Cohen, who testified about the standard of care for performing prostatic cryosurgery and treating complications resulting therefrom, as well as his opinions on the issue of Dr. Kassabian’s alleged negligence in treating Mr. Ladner.

According to Dr. Hyde, the hospital failed to fully comply with the applicable minimum standards when credentialing Dr. Kassabian to independently perform prostatic cryosurgery. For example, Dr. Hyde testified that, in his opinion, the hospital failed to require Dr. Kassa-bian to perform enough “proctored” surgeries (with the assistance, and/or under the supervision, of an experienced and properly credentialed surgeon) to ensure that he was sufficiently competent to independently perform the cryosurgery before authorizing him to do so. Dr. Hyde emphasized, however, that his criticism of the hospital extended only to its credentialing to perform the cryosurgery and did not apply to the hospital’s general grant of privileges to Dr. Kassabian that allowed him to admit patients and to perform other procedures. Moreover, it is undisputed that Dr. Hyde is not a physician and had never observed a complete cryosurgery of the prostate at the time of his deposition. Consequently, he had no opinion as to Dr. Kassabian’s clinical competence or on the issue of whether the physician violated the standard of care when performing Mr. Ladner’s cryosurgery or while providing postoperative care. In fact, he specifically testified that he was not implying that there was any causal connection between the hospital’s negligent credentialing of Dr. Kassabian for the prostatic cryosurgery and Mr. Ladner’s death.

As for Dr. Cohen, he testified that, in his opinion, prostatic cryosurgery was an appropriate treatment for Mr. Ladner’s prostate cancer, and Dr. Kassabian did not violate the standard of care when performing the cryosurgery, According to Dr. Cohen, the injury to Mr. Ladner’s rectum that resulted from the cryosurgery is a recognized complication of the surgery and was not the result of any negligence on Dr. Kassabian’s part. In fact, Dr. Cohen testified that any prostate surgery, not just cryosurgery, could result in a complication such as a rectal injury. In addition, Dr. Cohen testified that he had no criticism of the hospital’s care of Mr. Ladner during his cryosurgery or his overnight hospitalization at that time. Dr. Cohen also found no negligence on the part of Dr. Kassabian during the follow-up visits with Mr. Ladner on May 17 and June 7 in the physician’s office, testifying that, at that time, the symptoms that Mr. Ladner was experiencing gave no reason for Dr. Kassabian to suspect that a rectal injury had occurred during the cryosurgery.

Dr. Cohen opined, however, that Dr. Kassabian was negligent when he failed to promptly diagnose and treat Mr. Ladner’s rectal injury after he was hospitalized on June 13, five weeks after the cryosurgery. According to Dr. Cohen, given Mr. Ladner’s symptoms on June 13, Dr. Kassabian should have conducted a CT scan, a rectal exam, a cystoscopy, a sigmoidoscopy, and other tests as necessary to discover the source of the symptoms within 48 hours of the patient’s admission. If such tests had been conducted in a timely manner, Dr. Kassabian would have discovered the rectal injury and would have been able to immediately begin appropriate treatment. In Dr. Cohen’s opinion, if Mr. Ladner had been properly diagnosed and treated in a timely manner, “he probably would have survived.” Dr. Cohen concluded, therefore, that it was the unnecessary delay in the diagnosis and treatment of the rectal injury during the hospitalization that began on June 13 not the rectal injury itself— that was the proximate cause of Mr. Ladner’s postoperative complications and ultimate death.

Thus, even if the hospital failed to follow the requisite procedures when credentialing Dr. Kassabian to perform prostatic cryosurgery, there is no evidence that Dr. Kassabian performed Mr. Ladner’s cryosurgery negligently. It follows that, absent any proof of Dr. Kassabian’s negligence during the cryosurgery, Ladner is unable to establish any causal connection between the credentialing and Mr. Ladner’s postoperative complications and death.

Ladner contends, however, that a jury issue remains as to the hospital’s negligent credentialing simply because the rectal injury that eventually resulted in her husband’s postoperative complications and death occurred during the May 9, 2002 cryosurgery, regardless whether that rectal injury was caused by Dr. Kassabian’s negligence during the cryosurgery or was an unfortunate, but recognized, complication of a properly performed procedure. Ladner relies primarily on the January 2004 affidavit of Dr. Gerald Gowitt, offered pursuant to OCGA § 9-11-9.1, who was the medical examiner who conducted the autopsy on Mr. Ladner and who concluded that his death was the result of “multiple sequelae[] of the prostatic cryosurgery performed by Dr. Kassabian on May 9, 2002.” However, pretermitting whether Dr. Gowitt was qualified to give an expert opinion on whether Dr. Kassabian negligently performed the cryosurgery or whether Mr. Ladner’s postoperative complications and death were caused by such negligence, he offered no such opinion.

Decided February 16, 2012.

Steel & Moss, John D. Steel, Orr & Edwards, James G. Edwards II, Susan M. Cremer, for appellant.

Allen, McCain & OMahoney, Hunter S. Allen, Jr., Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Henry E. Scrudder, Jr., R. Keith Whitesides, Tawana B. Johnson, for appellee.

Moreover, as shown above, Dr. Cohen, Ladner’s own expert witness, affirmatively stated that the rectal injury was not the result of Dr. Kassabian’s negligence during the cryosurgery, but was a complication that could have occurred during any prostate cancer surgery and in the absence of any negligence, and that Dr. Kassa-bian’s negligence did not occur until five weeks later, during his treatment of Mr. Ladner following the June 13 emergency hospitalization. Ladner has failed to present any evidence — expert or otherwise — that the hospital erred in credentialing Dr. Kassabian to provide such postsurgical treatment. In fact, Ladner’s credentialing expert, Dr. Hyde, specifically testified that he was not criticizing the hospital’s grant of general privileges to Dr. Kassabian to perform any procedure other than the cryosurgery.

Accordingly, given the absence of any evidence from which a jury could reasonably conclude that the hospital’s allegedly negligent credentialing of Dr. Kassabian to perform prostatic cryosurgery was the proximate cause of Mr. Ladner’s postoperative complications and death, the trial court did not err in granting summary judgment to the hospital.

Judgment affirmed.

Phipps, P. J., and Doyle, P J., concur.

       Ladner’s complaint also asserted a medical malpractice claim against another physician who treated Mr. Ladner during the hospitalization. That claim is not at issue in this appeal.

       According to Ladner’s appellate brief, the
      gravamen of the medical negligence claim against Dr. Kassabian [is] negligent postoperative management; more specifically, negligent failure to timely diagnose the cause of and effectively treat the postoperative hematuria and a rectal injury, resulting in a cascade of other complications . . . and causing the untimely death of Mr. Ladner.

       The complaint did not assert a claim that the hospital was vicariously liable for Dr. Kassabian’s negligence or that it had negligently supervised him. Further, Ladner later withdrew a medical malpractice claim against the hospital based upon negligence allegedly committed by its nursing staff.

       “[A] hospital has a direct and independent responsibility to its patients to take reasonable steps to ensure that staff physicians using hospital facilities are qualified for privileges granted.” (Punctuation and footnote omitted.) McCall v. Henry Med. Center, 250 Ga. App. 679, 681 (1) (551 SE2d 739) (2001). See also Madonna v. Satilla Health Svcs., 290 Ga. App. 148, 151 (658 SE2d 858) (2008) (A hospital has a duty to follow its bylaws when granting privileges.). It follows that a cause of action for negligent credentialing of staff physicians and other medical care providers is an independent cause of action that arises out of that responsibility. Wellstar Health Systems v. Green, 258 Ga. App. 86, 88 (1) (572 SE2d 731) (2002).

       [E]ven in simple negligence cases, plaintiffs must come forward with expert evidence to survive a defense motion for summary judgment, where “medical questions” relating to causation are involved. . . . [T]he term “medical question” has been used to describe situations where the existence of a causal link between the defendant’s conduct and the plaintiffs injury cannot be determined from common knowledge and experience and instead requires the assistance of experts with specialized medical knowledge. . . . [I]n deciding whether [a] plaintiff is required to come forward with expert testimony to withstand a defense motion for summary judgment, the critical question is not whether the causation element involves a “medical question” in the generic sense of the term. Rather, it is whether, in order to decide that the defendant’s conduct proximately caused the plaintiffs injury, a lay jury would have to know the answers to one or more “medical questions” that, as the case law has defined that term, can be answered accurately only by witnesses with specialized expert knowledge. To make the term more clearly reflect its use in deciding cases, we will now refer to “specialized medical questions.”
      Id. at 627-629 (2) (a), (b).

       The trial court designated the order as a final judgment in favor of the hospital, pursuant to OCGA § 9-11-54 (b). Ladner’s medical malpractice claims remain pending against Dr. Kassabian and the other named defendants.

       See Cowart v. Widener, 287 Ga. at 626-628 (2) (a), (b) (Generally, “there is no requirement that expert testimony must be produced by a plaintiff to a negligence action in order to prevail at trial. . . . [This is because] most ‘medical questions’ relating to causation are perfectly capable of resolution by ordinary people using their common knowledge and experience, without the need for expert testimony. . . . [Thus, where] the causal link between the defendant’s conduct and the decedent’s injury can be determined by a lay jury without expert guidance, no expert evidence need be produced to defeat a defense motion for summary judgment.”) (citations and punctuation omitted).

       This conclusion also applies to and resolves Ladner’s related argument that, even if the trial court was correct in ruling that she was required to provide expert witness testimony on the issue of proximate causation, it erred in finding that she had failed to do so.

       This Court must affirm a judgment that is right for any reason. Craigo v. Azizi, 301 Ga. App. 181, 187 (3) (687 SE2d 198) (2009).

       Dr. Hyde specifically testified that he had no criticism of the substance or integrity of the hospital’s medical staff bylaws and other rules that regulated its credentialing process.

       Notably, on a separate issue regarding the equipment used during Mr. Ladner’s cryosurgery, Dr. Hyde testified as follows: “I’m not going to go into medical causation. I’m not a clinician, I’m not a physician or form of clinician, so I’m not going to make a medical causation opinion or render one at all.”

       Dr. Cohen testified that he was never asked to form an opinion or comment on whether Dr. Kassabian had sufficient training and experience to perform the procedure.

       Although Dr. Cohen also commented on the treatment provided by other physicians during Mr. Ladner’s hospitalization, only Dr. Kassabian’s treatment, and the hospital’s responsibility therefor pursuant to its credentialing of Dr. Kassabian to perform cryosurgery, is at issue in this case.

       “Sequelae” is defined as a “condition following as a consequence of a disease.” Stedman’s Medical Dictionary, 27th ed., p. 1622 (2000). See also Merriam-Webster.com (defining “sequelae” as “an aftereffect of disease, condition, or injury” or “a secondary result”).

       Notably, in contrast to this conclusory statement in his affidavit, Dr. Gowitt’s statements in his April 2003 autopsy report demonstrate that his opinion of the exact cause of Mr. Ladner’s death was far less certain.
      This 75-year-old white male underwent cryotherapy for prostatic cancer in May, 2002. Complications of blood clot retention within the urinary bladder developed and were treated with Foley catheter irrigations. He was admitted to Northside Hospital on June 14th. [Dr. Gowitt then summarized the numerous complications Mr. Ladner experienced and treatments he received during that hospitalization, noting that,] [u]nfortunately, the diagnostic and/or therapeutic events of May and June, 2002, had been so obscured by the over three-month interval until death that a satisfactory reconstruction [of what transpired] could not be accomplished. It is [my] opinion . . . that the performance of cryosurgery resulted in bleeding, which probably led to ischemic bowel necessitating colostomy. Probably because of his age and underlying natural diseases such as diabetes, cardiac fibrosis, and high blood pressuret,] [Mr. Ladner] did not tolerate the surgery well and developed a number of serious and physically stressful postoperative complications. Further complicating his course was additional surgery in late August, which once again placed severe stress on his overall body systems, which ultimately [led] to multiple organ system failure and his death.
      (Emphasis supplied.)


text:
    A11A1715.
    CONGRESS STREET PROPERTIES, LLC v. GARIBALDI’S, INC.
    (723 SE2d 463)
   Dillard, Judge.

This is an appeal from an order granting summary judgment to Garibaldi’s, Inc. on its complaint for declaratory judgment. The trial court concluded that Garibaldi’s acquired through adverse possession the right to use certain airspace occupied by a ventilation system encroaching onto neighboring property owned by Congress Street Properties, LLC. Congress Street argues that (1) Garibaldi’s failed to present evidence sufficient to establish a claim of adverse possession, and (2) the trial court improperly shifted to Congress Street the burden of proving that Garibaldi’s use of the property was permissive. For the reasons discussed infra, we affirm.

The pertinent facts before us are undisputed. Garibaldi’s and Congress Street own adjacent property lots in Savannah, Georgia. Garibaldi’s acquired its property in 1979 and undertook a major renovation of the existing building in order to make it suitable for restaurant use. This extensive renovation included the construction of a ventilation system on the outside of the west wall of the building, which encroaches onto the airspace above the adjoining property, then owned by Lorraine Lumbar and Baldwin Kahn. In March 1980, the renovation was complete, and Garibaldi’s began operating as Garibaldi’s Café. The ventilation system has been in place and Garibaldi’s Café has been in operation since that time.

Congress Street purchased the property adjacent to Garibaldi’s from Lumbar and Kahn in August 2002. Prior to the closing, the chief financial officer (“CFO”) of Garibaldi’s received a request through an attorney for Lumbar and Kahn that Garibaldi’s sign a document acknowledging that the ventilation system encroached onto the neighboring property and agreeing to remove it if requested to do so. Garbaldi’s declined this request.

In July 2009, Congress Street demanded for the first time that Garibaldi’s remove the ventilation system. Garibaldi’s filed a motion for declaratory judgment and interlocutory relief, asserting that it had adversely possessed the space occupied by the ventilation system through its open and continuous use of same for more than 29 years. The parties then filed cross-motions for summary judgment.

In support of its summary-judgment motion, Garibaldi’s filed two affidavits. The first affidavit was from its CFO, who averred that her father incorporated Garibaldi’s and was the sole shareholder until his death in 1998, at which time she and her siblings became the sole owners of the stock. She also asserted that her father was the individual responsible for acquiring the property and overseeing the renovation, and that she was unaware of any agreement reached between her father and Lumbar and Kahn regarding the encroachment of the ventilation system onto the latter’s property, nor could she locate in Garibaldi’s records or files evidence of any such agreement. The second affidavit was from Garibaldi’s director of operations, who averred that the removal of the existing ventilation system and construction of a new system, in conjunction with lost revenues during the construction, would cost Garibaldi’s between $50,000 and $100,000.

The trial court granted summary judgment to Garibaldi’s and denied same to Congress Street, holding that Garibaldi’s use of the airspace occupied by its ventilation system since 1980 has been public, continuous, exclusive, uninterrupted, peaceable, and did not originate in fraud. The trial court further held that “there is no evidence in the record that demonstrates [Garibaldi’s] had permission from the adjoining landowner when the ventilator was originally built.” This appeal follows.

At the outset, we note that this Court reviews the grant of a motion for summary judgment de novo, construing all facts and inferences from those facts in the light most favorable to the non-movant. Summary judgment is proper if the record evidence, including affidavits, “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” With these guiding principles in mind, we will now consider Congress Street’s enumeration of error.

Our analysis begins with OCGA § 44-5-161 (a), which outlines the essential elements of a claim for adverse possession — i.e., possession that is public, continuous, exclusive, uninterrupted, peaceable, accompanied by a claim of right, and not originating in fraud. A claim of right is synonymous with a claim of ownership, and “will be presumed from the assertion of dominion, particularly where the assertion of dominion is made by the erection of valuable improvements.” Conversely, we will not presume in the absence of evidence to the contrary that possession originated in fraud. The party claiming prescriptive title has the burden of proving, by a preponderance of the evidence, possession in conformance with the above elements for a period of 20 years and, once that burden is met, title of the occupied property is conferred to the adverse possessor.

In the case sub judice, there is no dispute that, for a period of more than 20 years, Garibaldi’s possession of the airspace occupied by its ventilation system has been public, continuous, exclusive, uninterrupted and peaceable. Furthermore, we will presume from its assertion of dominion that the possession has been under a claim of right, and there is no allegation or evidence that the possession originated in fraud. Accordingly, Garibaldi’s has established by a preponderance of the evidence each of the essential elements of adverse possession required under Georgia law.

Nevertheless, Congress Street argues that Garibaldi’s was also required to prove that its use of the airspace lacked the permission of the previous landowners, Lumbar and Kahn, relying on the following statutory language from OCGA § 44-5-161 (b): “[plermissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.”

We cannot agree with Congress Street’s interpretation that OCGA § 44-5-161 (b) places the burden on Garibaldi’s to prove that its use of the airspace was not permissive as part of its prima facie case. Rather, in accordance with the plain language of the statute and applicable Georgia law, Garibaldi’s satisfied its burden once it established by a preponderance of the evidence each of the elements explicitly set forth within OCGA § 44-5-161 (a). Once it did so, the burden then shifted to Congress Street to rebut the presumption of adverse possession with evidence of permissive use. To hold otherwise would not only inject into OCGA § 44-5-161 (a) an additional essential element of the claim that was not included by the legislature, but also would place upon an adverse possessor the burden of proving a negative fact. And because Congress Street was unable to present any evidence of permissive use sufficient to rebut Garibaldi’s evidence of adverse possession, the trial court did not err in granting Garibaldi’s motion for summary judgment and in turn denying Congress Street’s motion for the same.

Decided February 16, 2012

Bart & Meyer, Roy E. Paul, for appellant.

Callaway, Braun, Riddle & Hughes, Dana F. Braun, T. Daniel Tucker, for appellee.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

       It is undisputed that at the time of the filing of this action, Lumbar was incapacitated and Kahn was deceased.

        See Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011).

        Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011) (punctuation omitted).

       OCGA § 44-5-161 (a) provides as follows:
      In order for possession to be the foundation of prescriptive title, it: (1) [m]ust be in the right of the possessor and not of another; (2) [m]ust not have originated in fraud except as provided in Code Section 44-5-162; (3) [m]ust be public, continuous, exclusive, uninterrupted, and peaceable; and (4) [m]ust be accompanied by a claim of right.

        Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365) (1977); see also Walker v. Sapelo Island Heritage Auth., 285 Ga. 194, 196 (2) (674 SE2d 925) (2009); Cooley v. McRae, 275 Ga. 435, 436 (569 SE2d 845) (2002); Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000).

        Walker, 285 Ga. at 196 (2).

        Chancey, 238 Ga. at 398 (1) (“Even on motion for summary judgment, [an adverse possession claimant] is entitled to rely upon two presumptions in the absence of evidence to the contrary: A claim of right will be presumed from the assertion of dominion, particularly where the assertion of dominion is made by the erection of valuable improvements; possession originating in fraud will not be presumed.” (citations omitted)); accord Childs, 272 Ga. at 739 (2); Roylston v. Conway, 251 Ga. App. 648, 653 (2) (555 SE2d 28) (2001).

        See Chancey, 238 Ga. at 398 (1).

        Dyal v. Sanders, 194 Ga. 228, 233 (21 SE2d 596) (1942) (noting that “the burden was on the [adverse possession claimant] to prove his prescriptive title by a preponderance of the evidence”).

       OCGA § 44-5-163 (“Possession of real property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170.”).

       OCGA § 44-5-161 (b).

        See Chancey, 238 Ga. at 398 (1); see also Cooley, 275 Ga. at 436; Childs, 272 Ga. at 739 (2).

        See generally Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (“[W]e apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (punctuation omitted)); Davis v. Wallace, 310 Ga. App. 340, 345 (2) (713 SE2d 446) (2011) (“A well-established canon of statutory construction, inclusio unius, exclusio alteráis, provides that the inclusion of one implies the exclusion of the others.” (punctuation omitted)).

        Cf. Woods v. State, 233 Ga. 347, 348 (1) (211 SE2d 300) (1974) (“[I]n certain types of [criminal] offenses, where proof of the offense involves proof of a negative, and where the State has proven all of the other elements of the offense by positive evidence and has shown by evidence of circumstances consistent therewith that the negative is in truth the fact, and especially where the negative relates to a matter peculiarly within the knowledge of the defendant, then the burden may shift to the defendant to prove that the negative does not exist.”).

        See, e.g., Chancey, 238 Ga. at 398 (1); see also Cooley, 275 Ga. at 436. Compare Walker, 285 Ga. at 196-98 (2) (reversing grant of summary judgment after concluding that the evidence presented a genuine issue of material fact as to whether property in question had been obtained by prescriptive title).