text:
    A11A2117.
    VAUGHAN et al. v. ACCC INSURANCE COMPANY.
    (725 SE2d 855)
   BARNES, Presiding Judge.

Johnny and Betty Vaughan sued ACCC Insurance Company, alleging that the company acted in bad faith by failing to pay a judgment they obtained in a personal injury suit against ACCC’s insured. ACCC responded that it was not liable for the judgment because it had withdrawn coverage after its insured failed to cooperate in the investigation and defense of the underlying claim. The trial court denied the parties’ cross-motions for summary judgment, and the case went to trial. After three-and-a-half days of testimony and argument, the jury returned a defense verdict.

The Vaughans appeal, contending the trial court erred in denying their motion for summary judgment. They also allege that the evidence at trial was insufficient and that the trial court made errors involving the admission or exclusion of evidence and the denial of two requests to charge. Because the trial court did not err and some evidence supports the jury’s determination that ACCC was entitled to withdraw coverage, we affirm.

1. The Vaughans enumerate as error the trial court’s denial of their motion for summary judgment, arguing that as a matter of law ACCC could not have been prejudiced by its insured’s failure to cooperate during magistrate court proceedings, because the appeal in superior court was de novo and by then the insured had promised to cooperate. However, when, as here, “a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.” (Citations and punctuation omitted; emphasis omitted.) Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994).

2. The Vaughans contend that ACCC’s evidence was insufficient to sustain the verdict and that the trial court erred in its evidentiary rulings during trial. Because those issues are related, we will address them together.

A party suing an insurer to collect on a judgment entered against its insured must first establish his right to recover pursuant to an insurance contract between the insurer and the insured. “The rights of a third person to sue on a contract made for his benefit depend on the terms of the agreement and are no greater than those granted by the contract as intended by the parties thereto.” (Citation and punctuation omitted.) Deal v. Chemical Constr. Co., 99 Ga. App. 413, 417 (108 SE2d 746) (1959).

Once a plaintiff establishes his right to payment of a judgment against the insured tortfeasor, the insurer may defend against the claim by showing that it properly withdrew its Coverage of the underlying incident because its insured failed to cooperate in her defense. The insurer must show: (a) that it reasonably requested its insured’s cooperation in defending against the plaintiffs claim, (b) that its insured wilfully and intentionally failed to cooperate, and (c) that the insured’s failure to cooperate prejudiced the insurer’s defense of the claim. OCGA § 33-7-15 (b); Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 525 (3) (200 SE2d 146) (1973); H. Y. Akers & Sons v. St. Louis Fire &c. Ins. Co., 120 Ga. App. 800, 804-805 (3) (172 SE2d 355) (1969). Once the insurer presents evidence that it was entitled to withdraw coverage, the burden shifts to the plaintiff to establish that the insured’s failure to cooperate was justified. Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 557 (1) (a) (177 SE2d 819) (1970).

Further, in an appeal from a judgment entered on a jury verdict, this court will affirm the judgment “if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict.” (Citation and footnote omitted.) Freese II, Inc. v. Moses, 301 Ga. App. 793, 794 (689 SE2d 98) (2009).

With this framework in mind, the record shows that the underlying judgment in this case arose from litigation over an automobile collision on June 25, 2006. Shakretius Watson was driving her grandfather’s car when she ran into the back of a car in which Mr. Vaughan was the driver and Mrs. Vaughan was a passenger. The grandfather had insurance with ACCC, which determined that the collision was covered by the policy. After ACCC’s adjuster made several unsuccessful attempts to contact Watson by letter or telephone, Watson called the adjuster on July 20, 2006, and confirmed her address. ACCC investigated the collision, and photographed the damages to the Vaughans’ car.

On January 4, 2007, the Vaughans sued Watson in magistrate court, and ACCC hired an attorney to represent Watson. The defense attorney testified about the difficulty he had contacting Watson. After he tried to reach her by telephone, he sent her a letter and she called him, again confirming her address. The attorney sent Watson additional correspondence telling her when the magistrate court hearing was scheduled and tried to call Watson numerous times but was unable to contact her, and she did not come to court on May 8, 2007. The attorney moved for a continuance, but upon objection the magistrate court denied the motion and entered a default judgment against Watson as to liability. After a hearing the court awarded the Vaughans $8,664 in damages.

The defense attorney continued his attempts to contact Watson, and he filed an appeal to superior court to preserve her rights. On May 16, 2007, ACCC sent Watson a reservation of rights letter asking her to contact her lawyer by May 24, 2007. ACCC’s deadline passed with no contact from Watson. A supervisor went to Watson’s house and asked her grandfather to have Watson call ACCC. Finally, on June 18, 2007, ACCC sent Watson a letter notifying her that it was withdrawing its coverage because she had failed to cooperate in her defense. The attorney wrote Watson, then filed a motion to withdraw as attorney of record and served Watson with a copy, but she did not respond. The superior court granted the motion to withdraw on August 6, 2007, and Watson did not appear at the superior court trial on October 30, 2007, when the Vaughans obtained a judgment against her for $9,007.

ACCC refused to pay the judgment, and the Vaughans filed an action seeking satisfaction of the judgment and other expenses. After a trial, the jury returned a defense verdict, which the Vaughans appeal.

While the Vaughans argue that ACCC never proved that Watson actually received any of the letters sent to her, it proved that the letters were sent and not returned. Further, Watson admitted that she had received letters from her defense attorney, that she had talked to him, that she moved in May or June 2007 but did not update her contact information, and that she did not have a “stable phone number for [her lawyer] to contact [her].” She also remembered her attorney saying that ACCC did not want to pay the judgment, but by then the car she had been driving had been wrecked and taken, “and the insurance didn’t really matter anymore to me and my grandfather.”

The Vaughans argue that ACCC did not establish that Watson’s failure to cooperate prejudiced ACCC’s ability to defend the claim, because Watson agreed to cooperate four months before the superior court trial. The superior court action was de novo, they contend, and therefore nothing that had happened up to the date Watson promised to cooperate would have prejudiced ACCC’s ability to defend the claim. However, based on Watson’s prior conduct, the jury was entitled to find that her promise to cooperate was not credible and that she would not have assisted ACCC in the superior court proceeding. Thus, her mere promise did not overcome the actual prejudice to ACCC in this case.

The evidence outlined above would support a finding that ACCC reasonably requested Watson’s cooperation, that Watson wilfully and intentionally failed to cooperate, that her failure to cooperate was prejudicial to ACCC, and that her justification for failing to respond was insufficient. See Liberty Mut. Ins. Co., 129 Ga. App. at 525 (3); H. Y. Akers & Sons, 120 Ga. App. at 804-805 (3).

3. The Vaughans assert that the trial court made numerous errors in the admission or exclusion of evidence during the trial and in denying two requests to charge.

(a) Before and during the trial, the parties disputed how much evidence the jury should hear about the underlying car crash. The Vaughans filed a motion in limine asking the trial court to exclude any evidence about the underlying automobile collision, such as the amount of property damage, presence of a “phantom vehicle,” and the absence of injury reports at the scene. They argued that this evidence was irrelevant, and even if it was relevant “on the issue of the insurer’s need for Ms. Watson to be present at trial,” its probative value was outweighed by the risk of prejudice and confusion to the jurors.

During the pre-trial hearing on the motion, the Vaughans clarified that they were not objecting to testimony by ACCC’s litigation manager that he believed there were particular defenses to liability, only to the admission of evidence about the particular facts of the underlying collision. ACCC responded that, under OCGA § 33-7-15 (b), it was required to show that Watson’s failure to cooperate materially prejudiced its defense, and the only way to do that was to introduce evidence about the underlying collision to prove that it would have been able to raise reasonable defenses if Watson had cooperated. After extended colloquy, the trial court denied the motion in limine.

“We review a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Punctuation and footnote omitted.) Shiver v. Ga. & Fla. Railnet, 287 Ga. App. 828, 828-829 (1) (652 SE2d 819) (2007).

A trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Dept. of Transp. v. Mendel, 237 Ga. App. 900, 902-903 (2) (517 SE2d 365) (1999).

In response to the Vaughans’ objections during the three-and-a-half day trial, the trial court had to determine how much evidence about the underlying collision to admit, balancing the interests of the parties. For example, the trial court allowed Watson and her defense lawyer in the underlying case to describe some particulars about the collision, but did not allow ACCC to introduce enlarged pictures of the damaged car. The court sustained objections when ACCC asked Watson to describe the damage or whether she was surprised there was an injury claim. It also sustained objections when ACCC asked its manager if an ambulance responded or whether anything about the property damages would have contributed to ACCC’s defense. When ACCC asked if the court was changing its earlier ruling and granting the Vaughans’ motion in limine, the court responded that it was revising its response to the motion and ruling on the evidence as the trial proceeded and the evidentiary context became apparent. Finally, the court restricted ACCC’s closing argument and directed it not to discuss any of the testimony related to the particular facts of the collision.

As the Vaughans note in their appellate brief, “The record is rife with examples of the trial judge’s struggle throughout the proceedings to rule fairly on the admissibility of details concerning the underlying auto case,” and they admit the issue is a “thorny one.” ACCC had to present some evidence that Watson’s failure to cooperate prejudiced its ability to defend against the Vaughans’ claim, but the trial court excluded evidence about the details of the underlying collision that would have allowed the jury to second-guess the judgment awarded by the superior court. After reviewing the trial transcript in detail, we do not find that the trial court abused its discretion in its ruling admitting or excluding evidence.

(b) The Vaughans also argue that the trial court erred in declining to give their requested charge instructing the jury to limit its consideration of evidence about the collision to “whether Defendant was prejudiced by Ms. Watson’s absence from trial of the underlying case, ’ ’ and directing it not to relitigate that case. The trial court explained during the charge conference that it was not going to give the charge because it would be confusing to the jury, which had not heard evidence about liability or causation in the collision case.

The refusal to give a requested charge is error if the charge is adjusted to the pleadings, the law, and the evidence, and the charge as a whole or the general charge does not substantially cover the principles embodied in the requested charge. Ga. Dept. of Corrections v. Couch, 312 Ga. App. 544, 551-552 (4) (718 SE2d 875) (2011). When reviewing the charge, this court applies the plain legal error standard of review. Thompson v. Princell, 304 Ga. App. 256 (696 SE2d 91) (2010).

Here, the trial court covered the principles embodied in the charge to the extent they applied to the evidence admitted. First, the trial court explained to the jury before any of the witnesses testified that it would not be “trying an accident,” or determining whether someone was injured, only deciding whether the insurance company was relieved of its obligation to pay the judgment because the insured violated the contractual relationship. As previously discussed, throughout the trial the court balanced the admission of evidence about the underlying collision to allow ACCC to prove its defense but not unduly prejudice the Vaughans. Finally, its final charge to the jury covered all of the relevant legal issues, instructing the jury that this dispute involved the Vaughans’ attempt to collect a judgment against ACCC and that ACCC contended that its insured violated her insurance contract by not cooperating, which prevented ACCC from defending the case. It charged the jury on the definition of a contract; on the insured’s contractual obligation to cooperate; on the insurance company’s requirement to show that it reasonably requested cooperation and that the insured intentionally failed to cooperate in a way that prejudiced the insurer; and that if the insurer established those elements, the burden then shifted to the insured to justify her failure to cooperate. Accordingly, we find no error in the trial court’s denial of this request to charge the jury to consider evidence about the underlying collision only as it related to whether Watson’s lack of cooperation prejudiced ACCC in its ability to present a defense.

DeCided March 12, 2012.

Joyce W. Bergman, for appellant.

Cruser & Mitchell, Craig E Terrett, for appellee.

(c) Finally, the Vaughans contend that the trial court erred in declining to give their requested charge that an insurer that elects to participate in a trial by defending the action without giving the insured a “reservation of rights” notice is estopped from later denying coverage. An insurer avoids estoppel by giving timely notice of its reservation of rights fairly informing the insured of the insurer’s position. World Harvest Church v. GuideOne Mut. Ins. Co., 287 Ga. 149, 152 (1) (695 SE2d 6) (2010). In this case, ACCC gave timely notice to Watson, after the magistrate court action was filed and after the Vaughans received a default judgment because Watson did not appear for trial. When it hired defense counsel, ACCC had no reason to think it would be unable to contact Watson in the future, and no reason to reserve its rights at that time. The charge was not adjusted to the evidence, and the trial court did not err in refusing to give it.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A11A2119.
    ROWE v. THE STATE.
    (725 SE2d 861)
   Miller, Judge.

After Steven Rowe was charged with trafficking in cocaine (OCGA § 16-13-31 (a) (1)), he moved to suppress evidence obtained as a result of a police traffic stop of his vehicle. The trial court denied Rowe’s motion, and this Court granted Rowe’s application for interlocutory appeal. On appeal, Rowe contends that the officer lacked a reasonable articulable suspicion to conduct the traffic stop and expanded improperly the scope of the stop beyond its original purpose. After a thorough review, we conclude that the stop did not violate the Fourth Amendment. Accordingly, we affirm.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. When the trial court’s findings are based upon conflicting evidence, we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept that court’s credibility assessments unless clearly erroneous. The trial court’s application of law to undisputed facts, however, is subject to de novo review.

(Citation and punctuation omitted.) Sommese v. State, 299 Ga. App. 664, 665 (683 SE2d 642) (2009).

So construed, the evidence shows that an officer with the Greene County Sheriffs Office was patrolling a section of Interstate 20 on May 11, 2010. The officer observed Rowe’s vehicle in the left lane traveling slower than every other motorist on the interstate and slower than the posted maximum speed limit of 70 miles per hour. The officer observed that other motorists did not appear to be speeding and were attempting to pass Rowe’s vehicle by moving into the right-hand lane, creating the potential for an accident. Based on his observations, the officer initiated a traffic stop of Rowe’s vehicle.

Upon stopping the vehicle, the officer made contact with Rowe and requested that Rowe exit the vehicle and supply his driver’s license. The officer detected “an odor of burnt marijuana” coming from inside the vehicle. The officer explained to Rowe the dangers of traveling in the left-hand lane at a slow speed and informed Rowe that he would receive only a warning. As he was speaking with Rowe, however, the officer noticed that Rowe was extremely nervous, “his voice kept pitching and cracking,” he would not make eye contact, and his hands and body were trembling. The officer learned that the vehicle was a rental car, and approached the vehicle to obtain the rental agreement. The officer noticed that the passenger was also exhibiting extremely nervous behavior.

The rental agreement reflected that the vehicle was rented by a third individual, who was not present. Neither Rowe nor the passenger was listed as an authorized driver on the rental agreement, which permitted the vehicle to be operated only in the states of South Carolina and North Carolina. The rental agreement further reflected that the vehicle had been due back two weeks earlier.

The officer returned Rowe’s documentation and told him that he was free to go. In response, Rowe appeared to be relieved and his voice became steady. As Rowe was returning to his vehicle, however, the officer asked Rowe if he would answer a few more questions. Rowe agreed and became very nervous again. The officer asked Rowe if there were any drugs or contraband in the vehicle, and Rowe answered in the negative. The officer also asked Rowe for consent to search the vehicle, which Rowe ultimately refused to provide. The officer informed Rowe that he had a K-9 unit in the patrol car and was going to use it to conduct a free-air sniff of the vehicle.

The officer instructed Rowe and the passenger to step aside the vehicle. The passenger refused the officer’s request to exit the vehicle. The passenger then began sliding back and reaching under his seat, causing the officer to believe the passenger was either reaching for a gun or trying to conceal something. The officer drew his weapon and arrested the passenger. Thereafter, the officer searched under the passenger seat and recovered a bag containing approximately one kilogram of cocaine. Rowe and the passenger were jointly charged with trafficking in cocaine.

Rowe moved to suppress the drug evidence seized from the traffic stop, arguing that the initial stop and prolonged detention violated his Fourth Amendment rights. Following a hearing, the trial court denied Rowe’s motion.

1. Rowe contends that the trial court erred in denying his motion to suppress, because the officer lacked a reasonable suspicion to conduct the traffic stop. We disagree.

The stop of a vehicle is authorized if the officer observes a traffic offense. Taylor v. State, 230 Ga. App. 749, 750 (1) (a) (498 SE2d 113) (1998). Additionally,

[t]he primary purpose of traffic enforcement is the protection of the traveling public. So long as the stop was based upon conduct the officer observed, not on a mere “hunch,” and it was not pretextual, arbitrary, or harassing, an officer may act on a legitimate concern for public safety in stopping a driver.

(Citation and punctuation omitted.) State v. Calhoun, 255 Ga. App. 753, 755 (566 SE2d 447) (2002).

Here, the officer testified that he initiated the traffic stop because Rowe was traveling in the left-most lane at a speed less than the maximum speed limit, impeding the flow of traffic, and creating the risk of an accident. Notwithstanding Rowe’s challenges to the officer’s estimate of his speed, the trial court was authorized to find that the officer’s speed assessment was credible, and that the officer had a reasonable basis to investigate a traffic violation. See OCGA § 40-6-184 (a) (2) (prohibiting a vehicle from traveling in the left-most lane at less than the maximum speed limit when the driver knows or reasonably should know he is being overtaken by another vehicle); Gabbidon v. State, 184 Ga. App. 475, 476 (2) (361 SE2d 861) (1987) (holding that an officer’s testimony that the defendant’s vehicle was impeding the flow of traffic in violation of OCGA § 40-6-184 was sufficient evidence to justify an investigatory stop); see also Calhoun, supra, 255 Ga. App. at 755 (holding that an officer was authorized to stop the defendant’s vehicle out of concern for public safety).

2. Rowe next contends that, even if the initial stop was valid, the officer impermissibly expanded the scope of the stop. We disagree,

(a) The Investigative Traffic Stop

Rowe asserts that the officer fulfilled the purpose of the traffic stop when he first informed Rowe that he would not be issuing a citation, and that he would allow Rowe to get back on his way. His argument is without merit.

“[T]he investigative stop of a vehicle cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop.” (Citations and punctuation omitted.) Sommese, supra, 299 Ga. App. at 668 (1).

It does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration.

(Citation and punctuation omitted.) Langston v. State, 302 Ga. App. 541, 544 (691 SE2d 349) (2010). “Upon receiving [his] license and warning ticket, a reasonable person would have concluded that the traffic stop had ended.” (Punctuation omitted.) Davis v. State, 306 Ga. App. 185, 187 (1) (702 SE2d 14) (2010).

Here, the record shows that when the officer first informed Rowe that he would not be issuing a citation, the officer had requested only Rowe’s driver’s license, and had not yet checked its status or otherwise requested registration and insurance documentation. As part of the stop, the officer was permitted to question Rowe about his driver’s license, origination, and itinerary, so that he could investigate and determine whether Rowe was entitled to continue operating the vehicle and whether he was in lawful possession of the vehicle. See Davis, supra, 306 Ga. App. at 187 (1); Sommese, supra, 299 Ga. App. at 670 (1) (b). The traffic stop ended when the officer returned Rowe’s documents and told him he was free to go. See Davis, supra, 306 Ga. App. at 187 (1).

(b) Post-Traffic Stop

Rowe next asserts that he was unlawfully detained after the officer told him he was free to go. We disagree since the evidence shows that Rowe consented to remain on the scene and, thereafter, the officer had a reasonable suspicion of other illegal activity for further detention.

Once [an officer’s purpose for conducting a traffic stop] has been fulfilled, the continued detention of the vehicle and its occupants is constitutional only if the officer has a reasonable articulable suspicion of other illegal activity or when the valid traffic stop has de-escalated into a consensual encounter.

(Citation and punctuation omitted.) Sommese, supra, 299 Ga. App. at 668 (1).

(i) Consensual First-Tier Encounter

The evidence shows that after the officer informed Rowe that he was free to go, Rowe agreed to answer more of the officer’s questions and remained on the scene. During this subsequent exchange, there was no evidence that Rowe was mandated to wait, that the officer had drawn his weapon, or that Rowe was otherwise impeded from leaving. See Hughes v. State, 293 Ga. App. 404, 407 (2) (667 SE2d 163) (2008).

Under these circumstances, merely asking [Rowe] if he minded speaking further with the officer did not extend the initial traffic stop detention, because mere police questioning does not constitute seizure. . . . [A]s the traffic stop had ceased and [Rowe] was no longer detained, the encounter had de-escalated to a consensual first-tier encounter.

(Citation, punctuation and footnote omitted.) Id.

(ii) Second Detention

During the first-tier consensual encounter, the officer sought Rowe’s consent to search the vehicle, which Rowe ultimately refused to provide. Rowe’s refusal to provide consent and the officer’s order that Rowe step behind the patrol car re-escalated the encounter into a second detention. See Groves v. State, 306 Ga. App. 779, 781 (703 SE2d 371) (2010) (the officer’s actions evidenced intent to keep motorist from leaving, thereby escalating a casual encounter to second detention).

Decided March 12, 2012.

James W. Smith, for appellant.

This second detention was nevertheless reasonable, because “the officer ha[d] a reasonable articulable suspicion of other illegal activity[.]” (Citation and punctuation omitted.) Sommese, supra, 299 Ga. App. at 668 (1); State v. Whitt, 277 Ga. App. 49, 51-53 (625 SE2d 418) (2005) (holding that the officer was authorized to detain a driver after telling him he was free to go, because the officer previously observed that the driver appeared to be nervous, the authorized driver under the rental agreement was absent, and the driver exhibited a lack of knowledge regarding his destination and the passenger’s identity). Significantly, the officer had previously smelled an order of burnt marijuana; observed extremely nervous behavior from both Rowe and the passenger; and learned that neither Rowe nor the passenger was authorized to drive the rental vehicle, which was not permitted to be driven in Georgia and should have been returned two weeks earlier. Additionally, the officer heard conflicting stories from Rowe and the passenger about their trip, and neither Rowe nor the passenger appeared to know or was otherwise able to identify the individual authorized to drive the rental car. Based on the totality of the circumstances, the officer was authorized to detain Rowe for further investigation, including a free-air search. See Whitt, supra, 277 Ga. App. at 53; Wilson v. State, 306 Ga. App. 286, 289 (2) (b) (702 SE2d 2) (2010) (officer was authorized to detain the defendant and passenger for a free-air search where the defendant and passenger gave the officer conflicting stories, and the officer detected the smell of air freshener that could have been used to mask the smell of drugs, observed increasingly nervous behavior, and knew that the area of the stop was a major drug thoroughfare). Moreover, the continued detention to perform the free-air search was minimal given that the drug dog was already present at the scene. Jones v. State, 259 Ga. App. 849, 851 (578 SE2d 562) (2003).

Accordingly, the officer did not impermissibly expand the scope of the stop, and the trial court properly denied Rowe’s motion to suppress.

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

Fredric D. Bright, District Attorney, Michael B. Fulcher, Assistant District Attorney, for appellee.

       Rowe also argues that no traffic violation occurred because the other vehicles were traveling faster than the posted speed limit. However, Rowe has failed to provide any record support for his assertion that the other vehicles were speeding. See State v. Parke, 304 Ga. App. 124, 127-128 (695 SE2d 413) (2010) (OCGA § 40-6-184 (a) (2) does not apply where the driver is being overtaken by a vehicle exceeding the maximum speed limit).


author: BARNES, Presiding Judge.

text:
    A11A2337.
    MURPHY v. THE STATE.
    (725 SE2d 866)
   BARNES, Presiding Judge.

Vern Lamar Murphy was convicted of possession of cocaine, and following the denial of his motion for new trial, he appeals. Murphy contends that the trial court erred in denying his motion for a directed verdict and in failing to charge the jury on equal access, and that his trial counsel was ineffective. Upon our review, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Murphy] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

(Citations and footnotes omitted.) Eady v. State, 256 Ga. App. 696 (569 SE2d 603) (2002).

So viewed, the evidence shows that a police officer with the Griffin Police Department’s Tactical Response Unit was involved in a neighborhood revitalization initiative in a Griffin neighborhood because of suspected drug activity. On May 16, 2007, an officer was surveilling a house because the owner had complained that trespassers would sometimes sit on his front porch, and he was afraid to confront them because of possible retaliation. The officer observed Murphy sitting on the front porch of the house. Murphy walked to the side of the house, removed an item from the top of the electrical meter box, and gave the item to another individual who was standing near the rear of the house. The officer observed the individual shake the object and walk off. Murphy walked back to the side of the house, placed an object back on the electrical meter, and returned to the front porch.

The officer testified that based on his belief that he had witnessed a “hand to hand drug transaction,” he contacted his lieutenant who was stationed about a block away. The lieutenant approached Murphy, who was sitting on the porch of the house, and an accompanying officer secured the object, a plastic bag containing three rock-like substances, that was on top of the electrical meter box. The contents of the bag were later tested and confirmed to be three rocks of crack cocaine. Police searched Murphy and recovered a cell phone and $20.

1. Murphy first contends that the trial court erred by failing to charge the jury on equal access. In declining to give the charge, the trial court relied on Wiggins v. State, 258 Ga. App. 703, 705 (2) (574 SE2d 896) (2002), which held that the equal access principle is applicable when the State relies on the presumption that the owner of premises is in possession of all its contents. We find no error.

The equal access rule entitles a defendant to acquittal where the only evidence of possession is the defendant’s ownership or control over the premises, and the defendant can show that others recently had equal access to the premises. It is simply a defense available to the accused to whom a presumption of possession flows. Here, the state was not relying upon [Murphy’s] ownership or control of the residence to prove that the cocaine found [on the electric meter] belonged to him .... Therefore, no presumption of ownership arose and the equal access defense was not available. Thus, the trial court did not err by failing to charge the jury on equal access.

(Footnotes omitted.) Thomas v. State, 291 Ga. App. 795, 798 (2) (662 SE2d 849) (2008).

2. Murphy also asserts on appeal that the court erred in denying his directed verdict motions because there is insufficient evidence that he possessed any cocaine. He contends that the evidence did not establish that he exercised sole or joint control over the drugs found on top of the electric meter. He maintains that the officer acknowledged that, since the area was “drug-ridden,” it was possible that the drugs were on top of the meter before the officer observed Murphy.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation and footnotes omitted.) Thomas, 291 Ga. App. at 797 (1).

Here, the evidence revealed that Murphy was the only person observed making contact with the electric meter box, both before the contraband was discovered and afterward. The officer testified that the meter was under his surveillance the entire time, and that no other person came in contact with it. There was also no evidence that any other object was found on top of the electric meter other than the cocaine.

Although Murphy argues that no cocaine was found on his person, “[ajctual possession requires only direct physical control over a substance; it does not require that the substance be on the defendant’s person.” (Citation omitted.) Johnson v. State, 194 Ga. App. 743, 745 (3) (391 SE2d 716) (1990). “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Citation omitted.) Ibekilo v. State, 277 Ga. App. 384, 387 (3) (626 SE2d 592) (2006).

[W]here, as in this case, the conviction is based on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, than is a court of law. It is only where the evidence or a lack of evidence, tested by all human experience, establishes a reasonable hypothesis of innocence, that this Court may declare it so as a matter of law.

(Citations and punctuation omitted.) Swanger v. State, 251 Ga. App. 182, 183-184 (1) (554 SE2d 207) (2001).

In these circumstances, the jury was authorized to reject Murphy’s hypothesis that someone else put the drugs on the meter, and thus, the evidence was sufficient to support a rational trier of fact’s finding of guilt beyond a reasonable doubt. Accordingly, the trial court correctly denied Murphy’s motion for directed verdict of acquittal. See Reason v. State, 283 Ga. App. 608, 609-610 (1) (a) (642 SE2d 236) (2007).

3. Murphy last contends that his trial counsel was ineffective on multiple grounds. In so doing, the burden is on Murphy to establish that his attorney’s representation in specific respects fell below an objective standard of reasonableness, and that “a reasonable probability [exists] that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984). We “need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order.” (Citations and punctuation omitted.) Nelson v. State, 255 Ga. App. 315, 322 (10) (565 SE2d 551) (2002).

(a) Murphy first contends that his trial counsel did not sufficiently confer with him before the trial and also failed to adequately investigate his case. Murphy maintains that the one-and-one-half to two hours that trial counsel spent conferring with him was inadequate to properly prepare for trial.

“There exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel. Each case must be judged upon its own circumstances and in light of its own degree of complexity.” (Citation and punctuation omitted.) Benefield v. State, 231 Ga. App. 80, 81 (497 SE2d 650) (1998). Trial counsel stated before the trial that he had spent a cumulative “one and one half to two hours” going over the case with Murphy. He testified at the motion for new trial hearing that although the case was not complicated, he met with Murphy “many, many” times before the trial to discuss the case. Morever, trial counsel was successful in obtaining a directed verdict in three of the five indicted charges — possession of cocaine with intent to distribute within 1,000 feet of public housing, possession of cocaine with intent to distribute within 1,000 feet of a park, possession of cocaine with intent to distribute within 1,000 feet of a school — and an acquittal on the possession with intent to distribute charge. Further, Murphy has not identified any evidence or defense theory that counsel failed to present at trial. Absent these showings, he has failed to sustain his burden of demonstrating that counsel’s preparation for trial was deficient.

(b) Murphy also contends that trial counsel was ineffective for failing to object to testimony from an officer who said that he did not witness Murphy “sell the narcotics” and another officer’s testimony that Murphy was involved in a “drug transaction.” He maintains that the testimony was unduly prejudicial.

Here, pretermitting the question of deficient performance, Murphy has not established the prejudice prong of his claim of ineffective assistance of counsel with regard to this testimony as he was convicted only of simple possession, rather than the more serious charges of distribution which would be associated with a sale or transaction. As noted earlier, this Court is not required to address both components if the showing on one is insufficient. Nelson v. State, 255 Ga. App. at 322 (10).

Decided March 12, 2012.

Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Jeremy M. Hayes, Robert W. Smith, Jr., Assistant District Attorneys, Samuel S. Olens, Attorney General, for appellee.

(c) Likewise, we find no merit to Murphy’s contention that trial counsel was ineffective for failing to cite legal authority in his request for a directed verdict on the possession and possession with attempt to distribute counts, or for failing to request a charge on constructive possession.

The facts show that trial counsel moved for a directed verdict and argued that “the facts do not indicate there was an actual possession of the cocaine to which we stipulated to. And there was not an actual distribution of that cocaine[.]” Trial counsel was not questioned at the motion for new trial hearing about his motion for directed verdict, and we cannot say that there is a reasonable probability that the outcome would have been different if trial counsel had included exhortative legal authority in his argument. Moreover, Murphy was acquitted of the possession with intent to distribute charge; thus, he cannot show harm as to that count.

Regarding Murphy’s claim that trial counsel was ineffective for failing to request a charge on constructive possession, in this case, the trial court did not instruct the jury as to any presumption of possession, as the State’s position was that Murphy had actually possessed the contraband on the electric meter. Further, the trial court charged the jury: that Murphy was presumed innocent until proven guilty; that there was no burden on Murphy to prove his innocence; that the jury had to acquit Murphy if the State failed to prove his guilt beyond a reasonable doubt; and also as to the standard for convicting on circumstantial evidence. Under these circumstances where the State did not maintain a theory of presumptive possession, but rather contended that Murphy had actually possessed the cocaine, it was not error for his trial counsel to fail to request a charge on constructive possession.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: PHIPPS, Presiding Judge. MCFADDEN, Judge, ANDREWS, Judge,

text:
    A11A1622.
    WILLIAMS v. GK MAHAVIR, INC.
    (726 SE2d 71)
   PHIPPS, Presiding Judge.

In this slip and fall case, Vanessa Williams appeals the grant of summary judgment in favor of GK Mahavir, Inc. d/b/a Best Western Dawson Village Inn (“Best Western”). Williams contends the trial court erred by determining: that Best Western did not cause the slip and fall which resulted in her injury, that she failed to show that Best Western had actual or constructive knowledge of a substance on the floor, and that Best Western discharged its burden on the issue of actual or constructive knowledge of a substance on the floor. For the reasons that follow, we reverse.

On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is 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.

The record shows that on the day of the incident, Williams and her two sons walked from their hotel room to the hotel lobby, in search of the swimming pool. They walked through the lobby area until they reached a door through which Williams looked to determine whether they could get to the pool. Williams then turned to go another route, and she slipped and fell on a substance that appeared to be water. Williams deposed that she did not know the source of the water on which she had slipped, but that after her fall she saw water underneath a nearby table in the kitchen and dining area and thought the water came from there. Williams deposed that she was watching where she was walking, but did not see the substance on the floor before she fell.

A front-desk employee on duty that day from 2:00 p.m. to 10:00 p.m. deposed that the incident occurred around 7:00 p.m. She stated that the maintenance man usually left for the day by 4:00 p.m.; and that the housekeeping staff usually left for the day by 3:00 p.m. After they left, she held the sole responsibility for maintenance issues as well as for checking in guests. The employee deposed that spills in the kitchen and dining area of the lobby usually occurred in the mornings during breakfast; but even after breakfast, there were times when guests dined in the kitchen and dining area of the lobby. The employee deposed that on the day of the incident, she was stationed at the front desk, but did not see Williams fall because she could not see “around [a] little corner,” from where she was positioned. The employee stated that at “no time prior to [Williams]’s fall did [she] observe any water on the lobby floor.” The employee deposed that “no more than five seconds” before Williams fell, a family had come through the lobby with a cooler.

The manager deposed that hotel guests could access the swimming pool by walking through the lobby, and that guests walking through the lobby from the pool would sometimes track water on the floor. When asked whether the hotel had a schedule or policy in place to direct staff persons as to how often to inspect the lobby area of the hotel, the manager replied that it was an “everyday job.” When asked whether there were any special instructions related to the pool area, the manager replied that the staff needed no special instructions and that they were “quite aware of their responsibilities,” but he did not specify those responsibilities. The manager was then asked how often the lobby area was inspected to see whether it was clean, and he replied that his staff cleaned the lobby area “only if it needed to be cleaned,” and that there was no time frame in which a staff person was required to walk through to see whether the floors of the lobby area needed cleaning. The manager stated that immediately prior to Williams’s fall, he had been monitoring a security camera from his office and did not see any substance on the floor in the area where Williams fell.

In granting Best Western’s motion for summary judgment, the trial court found that Best Western “discharged its burden by showing a lack of evidence regarding the issue of any knowledge it might have had, actual or constructive, of any foreign substance on the floor of [Best Western]’s hotel lobby that might have caused [Williams] to slip and fall.” The court further found that Williams failed to “meet her burden by not pointing to any specific evidence in the record giving rise to a triable issue of fact regarding [Best Western]’s knowledge.” We disagree and find a jury question exists concerning whether Best Western had constructive knowledge.

A defendant may prevail at summary judgment by showing the court that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

In order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance. . . . Thus, in order for a defendant to successfully move for summary judgment in a foreign substance slip and fall case, it must come forward with evidence tending to show that (1) it had neither actual nor constructive knowledge of the foreign substance or that (2) plaintiff had knowledge of the substance.

The owner or occupier’s constructive knowledge of the hazard can arise from the failure to exercise reasonable care in inspecting the premises to keep them safe. “As to the duty to keep the premises safe, the owner has a duty to exercise ordinary care in keeping the premises safe.”

When undertaking the duty to keep the premises safe by the exercise of ordinary care, this includes inspecting the premises to discover anticipated dangerous conditions about which the owner does not have actual knowledge and taking reasonable precautions to protect invitees from dangers foreseeable from the use of the premises.

As a guest at Best Western, Williams was an invitee on the property, and Best Western may be liable to her for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe. There was no evidence that the employee on duty at the time of the incident was in Williams’s immediate vicinity when she slipped and fell; Williams testified that she did not see any substance on the floor before she fell; and the employee and manager swore that they did not see any water on the floor of the lobby area that day, prior to Williams’s fall. Therefore, the evidence shows that neither Williams nor Best Western had actual knowledge of any foreign substance on the floor of the hotel lobby. Thus, the case turns on whether Best Western had constructive knowledge.

Constructive knowledge may be shown in two ways: by showing that an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall; or by showing that the substance had been on the (ground) for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

But in order to withstand a motion for summary judgment, a plaintiff need not show how long the hazard had been present unless the owner has demonstrated that reasonable inspection procedures were in place and followed at the time of the incident. “Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure[.]”

Here, there was evidence that hotel employees cleaned the lobby area only if it needed to be cleaned, but there was no time frame in which an employee was required to walk through to determine whether the floors of the lobby needed cleaning. Thus, there was no evidence of a schedule within which the lobby area was inspected to discover dangerous conditions such as water tracks from guests leaving the swimming pool, food and beverage spills from the kitchen and dining area of the lobby, or spills otherwise caused by hotel guests walking through the lobby area. “[W]hen the nature of a business is likely to produce a spill or other hazard, frequent inspections may be necessary, and the reasonableness of an inspection program is a question to be decided by the jury.”

There was no evidence in the record of any particular time that a Best Western employee inspected or cleaned the lobby area on the day in question, or that there was any inspection program in place. The evidence showed that from approximately 4:00 p.m. until the incident occurred, hours later, one employee had been responsible for maintenance of the lobby area, in addition to her duties of checking in guests.

In the absence of evidence that [Best Western employees] conducted (any) reasonable inspection of the premises that would have discovered the foreign substance that caused the slickness on the floor, [Williams] was not required to present evidence establishing the length of time that the substance had been allowed to remain on the floor.

Under the evidence, we cannot say as a matter of law that Best Western’s inspection procedures, if any, were reasonable. Instead, the evidence presents a jury question, and the trial court erred in granting summary judgment as a matter of law to Best Western.

[I]ssues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property’s condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.

Judgment reversed.

McFadden, J., concurs fully and specially. Andrews, J., concurs dubitante.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to suggest that the concurrence dubitante is better addressed to our General Assembly than to our Supreme Court.

The duty at issue here is founded not only on general principles of tort law, but primarily on a statute that dates back to the Code of 1895.

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

OCGA § 51-3-1. The duty created by that statute “includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” (Citations omitted.) Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

Here the evidence would authorize a factfinder to conclude that the hotel neglected its duty to perform reasonable inspections. And a factfinder would be authorized to find that it is because of that neglect that there is no evidence about how long the substance on which the plaintiff fell had been on the floor. The concurrence dubitante would hold that the plaintiffs claim is defeated as a matter of law by that lack of evidence, overturning the line of cases holding that constructive knowledge may be inferred from a land owner or occupier’s failure to follow a reasonable inspection procedure. See Gibson v. Halpern Enterprises, 288 Ga. App. 790, 791-792 (655 SE2d 624) (2007). While defensible under general principles of law, such a holding would frustrate the legislative intent expressed in OCGA § 51-3-1. Such a holding would encourage land owners and occupiers to neglect the duties imposed upon them by the statute and thereby increase the danger to the public which the statute seeks to reduce.

ANDREWS, Judge,

concurring dubitante.

This Court is again confronted with a slip and fall premises liability claim where: (1) an essential element of the claim is that the foreign substance which caused the plaintiff to slip and fall had been on the floor of the premises for a length of time sufficient for constructive knowledge of the substance to be imputed to the premises owner; and (2) there is no evidence in the record as to how long the foreign substance had been on the floor. Again, in contravention of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), this Court refuses to consider the premises owner’s right to summary judgment on the basis that there is an absence of evidence in the record to establish an essential element of the plaintiffs claim. Instead, in contravention of Lau’s Corp., this Court again imposes on the premises owner a duty on summary judgment to produce evidence of adherence to reasonable inspection procedures before this Court will recognize the absence of evidence to support the plaintiffs claim. It continues to escape this Court’s attention that, even if the premises owner failed to inspect the premises, in the absence of any evidence that the substance had been on the floor long enough to have been discovered by a reasonable inspection, no jury can find that the owner had constructive knowledge, and no jury can find that the owner’s failure to inspect was a proximate cause of the slip and fall.

Decided February 24, 2012

Reconsideration denied March 13, 2012

Fred J. Rushing, Jr., for appellant.

Skedsvold & White, Craig R. White, Bryce W. Mowbray III, for appellee.

Nevertheless, because this Court has previously refused to even address these arguments (see Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998) (Andrews, C. J., dissenting) and J. H. Harvey Co. v. Reddick, 240 Ga. App. 466 (522 SE2d 749) (1999) (Andrews, E J., dissenting)), I conclude that another dissent at this time would be futile. In the hope that our Supreme Court may soon grant certiorari to address the application of Lau’s Corp. in this kind of premises liability claim, I concur dubitante. See Benefield v. Tominich, 308 Ga. App. 605 (708 SE2d 563) (2011) (Blackwell, J., joined by Dillard, J., concurring dubitante in a similar premises liability claim).

        Jones v. Kirk, 290 Ga. 220, 221 (719 SE2d 428) (2011) (citation omitted).

       OCGA§ 9-11-56 (c).

       OCGA § 51-3-1.

        Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (1) (408 SE2d 443) (1991) (citations and punctuation omitted); see Gibson v. Halpern Enterprises, 288 Ga. App. 790, 791 (655 SE2d 624) (2007).

        Jones v. Krystal Co., 231 Ga. App. 102, 104 (d) (498 SE2d 565) (1998).

       Id. (citations and punctuation omitted).

        Roberts v. Wal-Mart Stores, 287 Ga. App. 316, 317 (651 SE2d 464) (2007) (citations omitted).

       OCGA § 51-3-1; Rasnick v. Krishna Hospitality, 289 Ga. 565, 567 (1) (713 SE2d 835) (2011) (innkeepers have the duty to exercise ordinary care to provide their guests with premises that are reasonably safe for the guests’ use and occupancy).

        Mallory, supra at 429 (1); Gibson, supra.

        Gibson, supra.

       Id. at 791-792; Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999).

        Gibson, supra (punctuation and footnotes omitted).

        Crook v. Racetrac Petroleum, 257 Ga. App. 179, 181 (570 SE2d 584) (2002) (citation omitted).

        Jones v. Krystal Co., supra at 106 (e) (citations and punctuation omitted).

        Barge v. Melvin Carmichael Enterprises, 252 Ga. App. 725, 727-728 (556 SE2d 906) (2001) (grant of summary judgment to grocery store reversed where there were “almost no” inspection procedures in place at the time of the incident; store aisles were checked in the morning, but there was no set interval for inspection thereafter).

        American Multi-Cinema v. Brown, 285 Ga. 442, 445 (2) (679 SE2d 25) (2009).


text:
    A11A2099.
    PERRY v. GILOTRA-MALLIK et al.
    (726 SE2d 81)
   BARNES, Presiding Judge.

Ronald Perry sued emergency room pediatrician Shalini Gilotra-Mallik and her practice, Pediatric Emergency Associates, EC. (“Mal-lik”), for the wrongful death of his seven-month-old daughter. After hearing the evidence, the jury returned a defense verdict, and Perry appeals, contending that the trial court erred in denying his request to treat some of his witnesses as hostile, in restricting his re-cross-examination of Mallik, in denying a request to charge, and in denying his motion in limine seeking to exclude the testimony of two expert defense witnesses. For the reasons that follow, we affirm.

The parties do not dispute the underlying facts. The Perrys took their daughter Gabrielle to the emergency room because she had a high fever and their pediatrician’s office was about to close. The child was triaged, and her condition was assessed as urgent because of her elevated temperature, respirations, and pulse rate. Dr. Mallik examined the child, ordered the administration of tests and medicine, and after three hours, discharged her under the mistaken impression that the child’s temperature had fallen. In fact, the child’s temperature had remained elevated, a fact that a nurse had entered into the hospital’s electronic records system. At home less than an hour later, the child stopped breathing and subsequently died at the hospital.

Perry initially sued the hospital and Mallik in DeKalb County, but the case was transferred to Fulton County. Perry dismissed his case against the hospital without prejudice. Mallik was thus the only defendant in this case. The parties agreed in their pretrial order that the jury issues were whether Mallik breached the applicable standard of care in her treatment of the child; if so, whether that breach proximately caused her death; and if it did, how much would the jury award in damages. Perry contended specifically that Mallik violated the standard of care by discharging the child while she was in an unstable condition, “under the erroneous impression that both her temperature and her respiratory rate were significantly lower than they actually were.” At trial, in addition to a number of fact witnesses, an expert witness testified for Perry that Mallik had violated the standard of care, and two expert witnesses testified for Mallik that she had not. After five days of trial, the jury returned a defense verdict.

1. Perry argues that the trial court erred by “refusing” to characterize as adverse the nurses Perry called to testify, which would have made them subject to his cross-examination. The record shows, however, that Perry waived any objection to the trial court’s ruling on this issue. Before the presentation of evidence began, Perry asked for permission to call for cross-examination three nurses who had been hospital employees when the child died. Mallik responded that Perry could not call the former employees of a non-party for cross-examination, and when the trial court asked if Perry had any case law to the contrary, he responded, “We had frankly decided that was entirely in [the court’s] discretion to do it the right way.” The court responded that if the witnesses became hostile during direct examination, Perry could then seek permission to cross-examine them. Perry made no objection to the trial court’s response, and during his direct examination of the nurses, did not ask the court to find them hostile.

“A party cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal. Acquiescence deprives him of the right to complain further; thus the issue is waived for purposes of appeal.” (Citation, punctuation and footnote omitted.) Ahmed v. Clark, 301 Ga. App. 426, 428 (688 SE2d 361) (2009). Because Perry specifically stated he was leaving to the court’s discretion the determination of whether he could call these witnesses for cross-examination, and did not ask the court to declare them hostile while they testified, this issue is waived.

2. Perry contends that the trial court erred in several rulings regarding the admissibility of evidence. We review a trial court’s evidentiary rulings for abuse of discretion. Dept. of Transp. v. Mendel, 237 Ga. App. 900, 902-903 (2) (517 SE2d 365) (1999). “This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding.” Cooper Tire & Rubber Co. v. Crosby, 273 Ga. 454, 457 (2) (543 SE2d 21) (2001).

A trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(Citation omitted.) Dept. of Transp., 237 Ga. App. at 902-903 (2).

Here, Perry contends that the trial court erred by allowing Mallik to present evidence that hospital nurses had violated the standard of care applicable to them while denying him the same opportunity. Perry’s expert in emergency pediatric medicine testified on direct that the child had been in respiratory distress and unstable when Mallik discharged her, which violated the standard of care applicable to the doctor. On cross-examination Mallik questioned the expert about the information Mallik considered before discharging the child, and began to ask, “If the nurse . . . took the temperature of 103.6 degrees at the time of discharge and did not communicate that to Dr. Mallik and told her instead the fever resolved[,] or simply didn’t give that information to Dr. Mallik, that would be below the standard of care for . . . ,” and Perry objected on the ground that the question assumed facts not in evidence, and because the nurse was not a defendant whose standard of care was an issue in the case. The court overruled the objection, and the expert responded, somewhat elliptically, that the elevated temperature would have been “a strikingly abnormal vital sign and . . . should have been reported directly to the doctor.”

On redirect, Perry reminded his expert that he had been asked whether a nurse violated the standard of care by not calling to the doctor’s attention a final temperature of 103.6, and asked whether the doctor should have determined the child’s temperature herself before discharging her. Perry’s expert responded, “Sure,” but went on to say that the critical issue upon discharge was not the child’s temperature but her respiratory rate, which had remained abnormal.

Perry also called Mallik for cross-examination, and after Perry rested, Mallik testified on direct. The trial court limited Perry’s subsequent re-cross-examination of Mallik to issues which he had not previously covered or which were a surprise. The court denied Perry’s request to ask Mallik whether she thought the nurses had violated their standard of care, which he argued was relevant to Mallik’s credibility because she did not review the nurse’s notes and form an opinion critical of them until after she was sued. Mallik noted that the issue of whether the nurses told Mallik about the child’s elevated temperature before the discharge had been rendered largely irrelevant by the testimony of Perry’s expert, who said the important sign was the child’s respiratory rate, not her temperature.

Finally, Perry wanted to ask one of the nurses whether she had complied with hospital policy about reassessing patients and about the definition of stable and unstable. The trial court sustained Mallik’s objection to questions about the hospital’s policies because the level of nursing care was not an issue for the jury in this case, and such questions would inject prejudice regarding the collateral issue of whether hospital policies had been violated.

The record shows that the trial court did not abuse its discretion in making these evidentiary rulings. In its order denying Perry’s motion for a new trial, the trial court concluded that Mallik’s standard-of-care question to the expert regarding the nurse’s actions was asked in the context of questions about the information upon which Mallik based her assessment while the child was in the E.R. and upon discharge. Because the hospital was not a defendant, whether its employees were negligent was not a jury issue. The tried court therefore sustained objections to questions that would have injected issues related to the nurses’ negligence. Absent a showing that the trial court’s rulings were unfair and prejudicial, this court will not second-guess the trial court’s evidentiary decisions, and we find no such showing here. Dept. of Transp., 237 Ga. App. at 902-903

3. Perry argues that the trial court erred in declining to give his request to charge regarding the liability of joint tortfeasors. As the trial court noted in its order denying Perry’s motion for new trial, the parties’ pretrial order did not identify joint liability as a jury issue. Further, Perry did not seek to amend the joint pretrial order to argue that the hospital was negligent or that the negligence of the hospital and Mallik jointly caused his child’s death. As discussed in Division 1, whether the nurses were negligent was not an issue in this trial.

A trial court commits no error in declining to give a request to charge that is not adjusted to the pleadings, law, and evidence, Gates v. Navy, 274 Ga. App. 180, 182-183 (3) (617 SE2d 163) (2005), and Pony’s charge about joint tortfeasor liability was not so adjusted. Accordingly, we find no merit in this enumeration.

4. Finally, Perry contends that the trial court erred in denying his Daubert motion in limine seeking to exclude the causation testimony of two of Mallik’s three experts, arguing that Mallik failed to meet her burden of showing that the testimony was reliable and relevant.

OCGA § 24-9-67.1 (b) provides that a witness qualified as an expert may give opinion testimony 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.

Factors to consider in determining the reliability of the principles and methods upon which the opinion testimony is based include whether they can be tested; whether they have been subjected to peer review; their known or potential rate of error; and whether they have attained general acceptance within the scientific community. Webster v. Desai, 305 Ga. App. 234, 235 (1) (699 SE2d 419) (2010). “[WJhether a witness is qualified to render an opinion as an expert is a legal determination for the trial court, which will not be disturbed absent a manifest abuse of discretion.” (Citation omitted.) Moran v. Kia Motors America, 276 Ga. App. 96, 97 (1) (622 SE2d 439) (2005).

Perry does not contend that Mallik’s witnesses were unqualified, but rather that their methodology was unreliable and that one expert’s conclusion was also irrelevant. After a pretrial hearing, the trial court determined that the testimony of Mallik’s experts regarding the cause of death was relevant, reliable, and based on sufficient facts and data, and that their opinions about the cause of death were based on reliable principles and methods, appropriately applied to the facts of this case.

Perry argues that the trial court erred because Mallik’s expert Dr. Beckwith could not determine the child’s cause of death to a reasonable medical probability, but merely labeled the cause as a type of Sudden Infant Death Syndrome (“SIDS”) that did not fall into previously-recognized categories and which was not generally recognized by the scientific community. Perry also argues that the opinion of Mallik’s expert Dr. Radetsky that the child died of infectious heart disease was “mere educated speculation, not a scientifically supported opinion,” because the expert reached this conclusion merely by eliminating other possible causes and not through reliable methods.

Decided March 13, 2012

Jack F. Witcher, Daniel B. Greenfield, for appellant.

Huff, Powell & Bailey, Daniel J. Huff, Julye M. Johns, Greer Jackson, Thomas E. Greer, for appellees.

The applicable standard of care often requires employment of a “differential diagnosis” methodology, whereby the physician considers all relevant potential causes of the patient’s symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and a thorough case history.

(Citations and punctuation omitted.) Smith v. Finch, 285 Ga. 709, 711 (1) (681 SE2d 147) (2009). Here, Beckwith and Radetsky employed a differential diagnosis methodology and reached their conclusions after reviewing all of the records regarding Ml of the child’s medical care from birth to death, as well as the autopsy report and slides, which were admitted into evidence at trial. Beckwith’s opinion that the child died of SIDS was based on his own research and collaboration with other physicians, based on theories he had published in peer-reviewed journals. Radetsky’s opinion that the child died from a heart problem was based on his experience, and he lectures to physicians about how to ascertain the cause of death when one was not obvious. Finally, both experts testified about the reliable principles and methods they applied to the facts of this case.

A review of the evidence presented during the Daubert hearing and the trial establishes that the trial court did not err in denying Perry’s motion to exclude these experts’ testimony regarding causation. See Hankla v. Jackson, 305 Ga. App. 391, 395 (1) (b) (iii) (699 SE2d 610) (2010).

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in Divisions 1, 3, and 4 and in the judgment.

       The child’s mother, Theresa Perry, was initially a plaintiff also, but she died before trial, leaving Ronald Perry as the only plaintiff.

       Perry later refiled against the hospital in Gwinnett County, but that case was dismissed with prejudice because the statute of repose had expired.

        Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).


text:
    A11A2282.
    In re ESTATE OF HARING.
    (726 SE2d 86)
   BARNES, Presiding Judge.

The executor of Clorina Haring’s will petitioned the probate court for a final accounting and settlement from James McQuien, who served as Haring’s guardian and conservator for five and a half years before her death. Following a two-day bench trial, the probate court issued a detailed order denying the relief sought in the petition, discharging McQuien and his surety from any further estate obligations, and awarding attorney fees to McQuien and the surety. The executor appeals, challenging five specific findings of fact and conclusions of law, the discharge of the surety, and the attorney fees award. For the reasons that follow, we affirm.

1. OCGA § 29-5-81 (a) provides that the personal representative of a deceased ward may petition the court for an order requiring a conservator to submit to a final settlement of the conservator’s accounts from the commencement of the conservatorship. After notice, the court must examine the conservator’s returns and accounts during the settlement period and hear any objection to discharging the conservator. OCGA § 29-5-81 (c). Finally, “[i]f the court is satisfied that the conservator has faithfully and honestly discharged the office, an order shall be entered releasing and discharging the conservator from all liability.” OCGA § 29-5-81 (d).

Because the [probate] court sits as the trier of fact when settling a conservator’s accounts, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When the evidence is uncontro-verted and no question of witness credibility is presented, however, the [probate] court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and footnote omitted.) In the Interest of Hudson, 300 Ga. App. 340 (685 SE2d 323) (2009). See Fletcher v. Ellenburg, 279 Ga. 52, 56 (1) (609 SE2d 337) (2005); OCGA § 9-11-52 (a).

The evidence presented to the court established that Haring and McQuien began living together in 1974. In March 2001, McQuien and Haring’s son Walter petitioned the probate court to have McQuien appointed as Haring’s guardian because she had developed Alzheimer’s and was no longer competent to take care other affairs. In May 2001, the court appointed McQuien as the guardian of Haring’s person and property, and McQuien obtained a $310,000 bond from Western Surety Company. McQuien filed annual account returns and reports on Haring’s condition with the probate court until Haring died on December 26, 2006. Walter Haring was the executor of Haring’s will, which was admitted to probate court in March 2007.

In April 2007, the executor petitioned the probate court for an accounting from McQuien, asserting that McQuien had failed to deliver Haring’s money and property, and “may have breached his legal duties as conservator.” In May 2007, McQuien filed revised returns and submitted a response to the petition, denying he had breached his conservatorship duties and asserting that the executor had already received Haring’s house, jewelry, car, and $70,000.

After the parties conducted discovery, the probate court held a two-day bench trial on the executor’s petition for a final settlement of McQuien’s accounts as the conservator of Haring’s property. The evidence showed that when McQuien became Haring’s guardian and conservator, Haring had approximately $250,000 in cash and certificates of deposit (CDs), and when she died, she had $70,000 left. The executor asserted that McQuien had failed to properly account for the money he spent, spent more than necessary for Haring’s care, and spent some of the money improperly. Fifteen people testified, including experts in assisted living and home health care as well as fact witnesses.

The evidence established that Haring was diagnosed with Alzheimer’s in 1997, and became progressively disabled. When McQuien applied for the guardianship, Haring could not take care of herself. Her son wanted to put Haring in a nursing home, but McQuien said that as long as he was alive and able to care for her, he would not do that. McQuien paid a sitter $8.50 an hour to stay with Haring while he was at work. During his 67-month conservatorship, McQuien wrote checks to the sitter totaling $140,282, and paid her additional sums in cash. The sitter testified that McQuien kept track of her hours and paid her at least weekly. Haring testified that he paid the sitter more often than weekly when she needed it. She took Haring for rides in Haring’s car, which two experts testified was therapeutic for Alzheimer patients. McQuien also wrote checks to himself and for cash during this period that totaled $82,888, and testified that he used some of that to pay the sitter in cash and the rest for food and other household expenses. He also testified that the source of Haring’s certificates of deposit was the $725 monthly rent payments he made to Haring from 1974 to 1998, which Haring never spent. In 2005, he asked Haring’s sons to cash in some certificates because the money in Haring’s checking account was “getting low,” but they refused, so he cashed in other CDs for $43,000.

McQuien’s experts testified that the cost of institutional care for Haring, who was non-ambulatory, non-verbal, and could not feed, bathe, or dress herself, would have been $40,000 to $70,000 a year, plus clothing and medical expenses. The hourly wage for a sitter hired through an agency would have been $14.50 to $15.00 per hour in 2008, and Alzheimer patients did better “mentally and cognitively” when they were kept at home instead of in an institution.

A social worker who visited Haring for an hour two to three times a month to monitor her care testified that McQuien took “wonderful” care of Haring. He declined the assistance of a certified nursing assistant and bathed her, changed her diapers, pureed her food, gave her nutritional supplements, and did her laundry daily. While the house was sometimes in disarray, Haring was always clean, dressed, and sitting on her sofa instead of left in her bed as many such patients were. She became “very vibrant” and animated when McQuien came into the room, and without his care probably would have passed away many years earlier. A registered nurse who visited once a week for an hour testified that, although Haring had advanced Alzheimer’s and was non-verbal, “you could see her face light up” when McQuien entered the room.

During McQuien’s conservatorship, Haring’s sons did not contribute to her care, physically or monetarily, nor did they review McQuien’s annual reports to the probate court. George Haring testified that he had no need to talk to his mother’s sitter about her qualifications because he intuited that, she was not qualified. He thought her appearance was unprofessional, although when asked in what way, he responded that he could not explain it. Walter Haring, the executor, testified that Haring left a television set to McQuien and everything else to him and his brother. Her will was written in 1976. After Haring died, the sons came to the house and accused McQuien of neglecting their mother and stealing her money. They “ransacked the house,” “looking for things that. . . belonged to [them].” They told McQuien to separate his things from their mother’s and took her jewelry, car, and almost all of the furniture, which was sold at a yard sale for “a couple of dollars.” They made McQuien leave the house, and sold it a year later for $43,000.

In its 14-page order, the probate court found that McQuien spent less money than it would have cost to care for Haring in a licensed facility, and that money paid from the estate account to the sitter and to McQuien was reasonable. The court noted that Haring’s sons did not review or object to McQuien’s conservatorship returns, and found that, to the extent the returns were imperfect, “they reflect [McQuien’s] level of sophistication rather than any willful or intentional dishonesty.” The court accepted his amended returns, found no evidence that McQuien converted any of Haring’s money to his own personal use, and that McQuien did not breach any of his fiduciary duties to Haring. The court denied the relief sought by the executor, discharged McQuien and his surety from further obligation to the estate, and found it appropriate to award reasonable attorney fees and expenses to McQuien from the estate or heirs.

After reviewing the evidence, we conclude that the probate court’s findings of fact and conclusions of law are not clearly erroneous, and therefore the appellant’s first six enumerations of error are without merit.

2. The executor contends that the probate court erred in awarding attorney fees to McQuien and the surety from the estate and heirs. The court found that the executor’s claims against McQuien lacked merit, that the executor was not entitled to attorney fees from McQuien or the surety, and that McQuien and the surety were entitled to reasonable attorney fees and expenses to be paid from the estate. The probate court ordered that the fee award be paid from estate assets, but “[t]o the extent that the assets of the estate have been distributed, the claim for attorney[ ] fees shall stand as an obligation of each of Ms. Haring’s heirs, jointly and severally,” citing OCGA §§ 53-7-43; 53-7-54 (a), (b).

The executor contends that the probate court erred in awarding any fees, and that even if a fee award was appropriate, it should not have been made against the heirs individually. We disagree.

The probate court “may apply equitable principles in making settlements and accounting for the assets of estates. . . . The question of allowing . . . counsel fees comprises a part of the distribution and disposition of the assets of a deceased person’s estate.” (Citation and punctuation omitted.) Estes v. Collurn, 91 Ga. App. 186, 190-191 (1) (a) (85 SE2d 561) (1954). The probate court’s award of attorney fees to McQuien and the surety is also supported by OCGA § 29-5-51, which provides:

Decided March 13, 2012.

Philip J. Johnson, for appellant.

Posey, Moye & Cartledge, John D. Cartledge, Bovis, Kyle & Burch, Timothy J. Burson, for appellee.

Conservators shall be allowed reasonable expenses incurred in the administration of the estate, including without limitation expenses for travel, employing counsel and other agents, and the expenses and premiums incurred in securing a bond. Such reasonable expenses shall be determined after notice, if any, as the court shall direct. The conservator’s commissions are part of the expense of administering the estate and may be charged against the corpus of the estate as well as the income of the estate.

The executor withdrew everything from Haring’s checking account before outstanding checks for Haring’s bills cleared, causing some of those checks to be dishonored. McQuien then paid those bills from his own funds. Further, the executor filed this action against the conservator for a final accounting before the accounting was due, while the conservator still had an outstanding claim for commissions. Thus, the executor distributed funds from the estate knowing that the estate had outstanding debts. Under OCGA § 53-7-43, the heirs may be liable for debts of the estate even if they took without notice of the debt.

We review for abuse of discretion a probate court’s determination regarding the reimbursement of attorney fees. In re Estate of Arnsdorff, 273 Ga. App. 612, 616 (3) (b) (615 SE2d 758) (2005). The probate court determined that McQuien and the surety were entitled to be reimbursed from the estate or heirs for the attorney fees and expenses they incurred in making a final accounting, and after reviewing all of the evidence of record, we cannot find that the probate court abused its discretion in making this award.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Effective July 1, 2005, the Genera! Assembly adopted a comprehensive revision of Title 29, “Guardian and Ward,” under which the term “guardian” replaced “guardian of the person” and the term “conservator” replaced “guardian of the property.” Ga. L. 2004, p. 161, § 1. We will use the current terminology in this opinion, even though the events at issue began before 2005.

       “If the estate shall have been distributed to the heirs or beneficiaries without notice of an existing debt, a creditor may compel them to contribute pro rata to the payment of the debt.”

       If a personal representative . . . commits a breach of fiduciary duty , a beneficiary of a testate estate . . . shall have a cause of action:
      (1) To recover damages;
      (4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise!.]
      (b) When estate assets are misapplied and can be traced in the hands of persons affected with notice of misapplication, a trust shall attach to the assets.