text:
    A15A0581.
    AMERICAN COLLEGE CONNECTION, INC. v. BERKOWITZ.
    (775 SE2d 226)
   Dillard, Judge.

In this civil action, Jessica Berkowitz, a Georgia resident, filed suit against American College Connection, Inc. (“ACC”), a company based primarily in Nebraska, seeking, inter alia, a declaratory judgment and damages for breach of contract. On interlocutory appeal, ACC contends that the trial court erred in denying its motion to dismiss Berkowitz’s complaint for lack of personal jurisdiction. For the reasons set forth infra, we affirm.

At the outset, we note that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. Furthermore, when the motion is decided without an evidentiary hearing and based solely upon the written submissions of the parties, as it was here, “any disputes of fact must be resolved in the light most favorable to the party asserting the existence of personal jurisdiction, and we review the decision of the trial court de novo.”

Viewed in the light most favorable to Berkowitz, the record shows that ACC is a company incorporated in Nebraska that was created and is solely owned by former University of Nebraska swimming coach Richard Paine. Relying on Paine’s extensive experience and contacts with swimming coaches across the country, ACC engages in the business of assisting student-athletes in gaining entrance to college and university athletic programs and in obtaining financial aid to support their educational goals. Generally, ACC obtains clients from referrals by parents of student-athletes, who have previously used the company’s services. Prospective student-athlete clients can then use ACC’s website to create a profile of their athletic and academic achievements. Thereafter, Paine and his staff use this information to create an admissions package that is then submitted on behalf of the student-athlete client to colleges and universities throughout the country. Additionally, during the entirety of the recruitment process, ACC continues advocating on their clients’ behalf.

In 2007, Berkowitz, a resident of Georgia, was coaching swimming in the Atlanta area and operating a business that was similar to ACC’s business, assisting student-athletes. That summer, Berkowitz and ACC began discussing collaboration and later began negotiating an agreement, under which Berkowitz would receive commissions for successfully referring student-athletes to ACC. Ultimately, on August 9, 2007, Berkowitz and ACC entered into an independent consultant/contractor agreement, which provided that Berkowitz would procure referrals of prospective student-athlete clients exclusively for ACC and that she would be compensated for such referrals. On that same day, Berkowitz also signed an agreement pledging that she would not compete with ACC or provide services for any of its competitors for a period of three years in the event her contractor agreement was terminated.

Over the course of the next six years, Berkowitz worked with ACC, recruiting student-athletes in Georgia and assisting in the development of clients’ admission packages. However, in late 2013, Berkowitz, while still under contract with ACC, allegedly created a competing business. Consequently, on December 22, 2013, ACC disabled Berkowitz’s access to her ACC e-mail account as well as the company’s website. Shortly thereafter, on December 31, 2013, ACC contacted Berkowitz, via e-mail, informed her that she was in violation of the noncompete agreement, and demanded that she cease all contact with ACC clients and all work in direct competition with ACC.

On January 6, 2014, Berkowitz filed suit against ACC in the Superior Court of Fulton County. In her complaint, she sought a declaratory judgment that the noncompete agreement was unenforceable under Georgia law and damages (in the form of unpaid commissions) for ACC’s alleged breach of the independent consultant/contractor agreement. Subsequently, ACC filed an answer and a motion to dismiss, arguing that the trial court lacked personal jurisdiction because ACC had not transacted business in the State as contemplated by Georgia’s Long Arm Statute. Berkowitz filed a response, and the trial court held a nonevidentiary hearing on the issue, after which it denied ACC’s motion but granted a certificate of immediate review. We then granted ACC’s interlocutory application, and this appeal follows.

In its sole enumeration of error, ACC contends that the trial court erred in denying its motion to dismiss Berkowitz’s complaint for lack of personal jurisdiction. Specifically, it argues that jurisdiction is lacking because it did not transact business in the State as contemplated by Georgia’s Long Arm Statute. We disagree.

Georgia’s Long Arm Statute allows the courts of this State to exercise personal jurisdiction over a nonresident defendant “if in person or through an agent, he or she . . . [transacts any business with this [S]tate.” And nearly ten years ago, in Innovative Clinical & Consulting Servs. v. First National Bank of Ames, the Supreme Court of Georgia explained that “OCGA § 9-10-91 (1) grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State ... to the maximum extent permitted by procedural due process.” In doing so, the Supreme Court overruled all prior cases that failed to “accord the appropriate breadth to the construction of the ‘transacting any business’ language of OCGA § 9-10-91 (l).”

In determining the limits of procedural due process, this Court applies a three-part test:

Jurisdiction exists on the basis of transacting business in this State if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this State, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this State does not offend traditional notions of fairness and substantial justice.

We analyze the first two prongs of this test to determine whether “a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction.” And if such minimum contacts are found, we then analyze the third prong of the test to consider whether “the exercise of jurisdiction is ‘reasonable’ — that is, to ensure that it does not result solely from ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.” Importantly, the application of the minimum-contacts rule will “vary with the quality and nature of the defendant’s activity^]” Nevertheless, it is essential in each case that there be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

In the case sub judice, through the affidavits of its owner Richard Paine, ACC avers that it is not registered to do business in Georgia and does not own property or maintain a bank account within the State. But this by no means ends our inquiry. Indeed, as our Supreme Court has explained, “nothing in subsection (1) [of OCGA § 9-10-91] requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.” To the contrary, Georgia allows the assertion of long-arm jurisdiction over nonresident defendants based on “business conducted through postal, telephonic, and Internet contacts” And a “single event” may be a sufficient basis if “its effects within the forum are substantial enough.”

As previously noted, ACC operates a website through which student-athletes across the country (including those residing in Georgia) can and do register to become clients. And in Aero Toy Store, LLC v. Grieves, this Court noted that decisions in other jurisdictions have “developed recognizing the technological revolution ushered in by the Internet and utilizing a sliding scale for determining whether a nonresident has submitted to a state’s long arm jurisdiction by establishing the requisite minimum contacts through Internet-based activity.” Adopting that sliding-scale mode of analysis, we explained that

[a]t one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

Here, ACC’s website is, at the very least, certainly interactive in that it allows prospective, as well as current, student-athlete clients to set up an online account and input their academic, athletic, and financial information, so that ACC can, in turn, create admissions packages to be submitted to universities and colleges across the country. Indeed, as ACC acknowledges, some of its student-athlete clients are, in fact, residents of Georgia. Furthermore, ACC hired Berkowitz, a Georgia resident, to assist the company in obtaining additional clients from Georgia, which she did, and, importantly, Berkowitz’s cause of action stems from a dispute regarding the procurement of those very clients.

Nevertheless, ACC argues at great length that Berkowitz was an independent contractor, rather than its agent, and therefore, her work in Georgia cannot be imputed to ACC so as to support the contention that the company had sufficient minimum contacts with the State. However, with regard to the term “agent” in the minimum-contacts context under OCGA § 9-10-91, we are “not dealing with the traditional ‘principal-agency’theory of respondeat superior.” Rather we are concerned with whether a forum state may “exercise personal jurisdiction over a nonresident defendant based upon the ‘minimum contact’ theory[.]” And with the relaxation of the due-process criteria, the “jurisdictional distinction between agents and independent contractors has begun to fade.” But even more importantly, here, regardless of whether Berkowitz acted as an agent or merely an independent contractor, as noted supra, ACC, via its website, had several clients in Georgia even before Berkowitz was hired. Given these circumstances, and applying our Supreme Court’s more expansive interpretation of the “transacting any business” provision of our Long Arm Statute, we conclude that the trial court did not err in determining that ACC has sufficient minimum contacts with the State of Georgia to warrant the exercise of personal jurisdiction over it in this case. Accordingly, we affirm the trial court’s denial of ACC’s motion to dismiss.

Decided July 8, 2015.

Deming, Parker, Hoffman, Campbell & Daly, Frank F. Pape, Jr., for appellant.

Chaiken Klorfein, Fredric Chaiken, for appellee.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        See Easterling v. Easterling, 231 Ga. 90, 90 (1) (200 SE2d 267) (1973); Catholic Stewardship Consultants, Inc. v. Ruotolo Assocs., Inc., 270 Ga. App. 751, 752 (608 SE2d 1) (2004) (punctuation omitted); Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 539 (428 SE2d 435) (1993).

        Paxton v. Citizens Bank & Trust of W. Ga., 307 Ga. App. 112, 113 (704 SE2d 215) (2010); accord Home Depot Supply v. Hunter Mgmt., 289 Ga. App. 286, 286 (656 SE2d 898) (2008).

        See OCGA § 9-10-90 et seq.

       OCGA § 9-10-91 (1).

       279 Ga. 672 (620 SE2d 352) (2005).

        Id. at 675 (punctuation omitted).

        Id. at 676.

        Paxton, 307 Ga. App. at 115-16 (punctuation omitted); accord Aero Toy Store v. Grieves, 279 Ga. App. 515, 517-18 (1) (631 SE2d 734) (2006).

        Paxton, 307 Ga. App. at 116 (punctuation omitted); accord ATCO Sign & Lighting Co., LLC v. Stamm Mfg., Inc., 298 Ga. App. 528, 534 (1) (680 SE2d 571) (2009).

        Paxton, 307 Ga. App. at 116 (punctuation omitted); accord ATCO Sign & Lighting, 298 Ga. App. at 534 (1).

        Aero Toy Store, 279 Ga. App. at 518 (1) (punctuation omitted); accord Stuart v. Peykan, Inc., 261 Ga. App. 46, 49 (1) (581 SE2d 609) (2003).

        Aero Toy Store, 279 Ga. App. at 518 (1) (punctuation omitted); accord Stuart, 261 Ga. App. at 49 (1).

        Innovative Clinical, 279 Ga. at 675; accord Amerireach.com, LLC v. Walker, 290 Ga. 261, 270 (2) (719 SE2d 489) (2011); Paxton, 307 Ga. App. at 116 (1).

        Paxton, 307 Ga. App. at 116 (1) (punctuation omitted; emphasis supplied); accord ATCO Sign & Lighting, 298 Ga. App. at 534 (1); see also Home Depot Supply, 289 Ga. App. at 289 (holding that “even where a nonresident has no physical presence in Georgia, intangible contacts, such as telephone communications, can he sufficient to establish ‘minimum contacts’ which meet the constitutional standard for the exercise of personal jurisdiction”).

        Crossing Park Props., LLC v. JDI Fort Lauderdale, LLC, 316 Ga. App. 471, 476 (729 SE2d 605) (2012) (punctuation omitted); accord Robertson v. CRI, Inc., 267 Ga. App. 757, 760 (601 SE2d 163) (2004).

       279 Ga. App. 515.

        Id. at 522 (1).

        Id. (punctuation omitted); accord Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 FSupp. 1119, 1124 (III) (A) (2) (W.D. Pa. 1997).

        See Paxton, 307 Ga. App. at 115-16 (noting that the plaintiff’s cause of action must arise from or be connected with the defendant’s acts or transactions in Georgia).

        Cont’l Research Corp. v. Reeves, 204 Ga. App. 120, 123 (1) (419 SE2d 48) (1992) (punctuation omitted).

        Cont’l Research Corp., 204 Ga. App. at 123 (1) (citation and punctuation omitted); see Intl. Shoe Co. v. State of Wash., 326 U. S. 310, 316 (66 SCt 154, 90 LE 95) (1945) (holding that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’ ” (punctuation omitted)).

        Cont’l Research Corp., 204 Ga. App. at 123-24 (1) (citation and punctuation omitted; emphasis supplied); accord Hollingsworth v. Cunard Line Ltd., 152 Ga. App. 509, 513 (263 SE2d 190) (1979).

        See Innovative Clinical, 279 Ga. at 675-76.

        See Aero Toy Store, LLC, 279 Ga. App. at 523-24 (1) (holding that nonresident automobile seller, who regularly solicited business in Georgia via an interactive website and, in fact, sold plaintiff the car at issue in the lawsuit, had sufficient minimum contacts with Georgia to warrant the exercise of personal jurisdiction in plaintiff’s breach of contract action, even though seller did not have offices in Georgia and did not derive substantial revenue from sales in Georgia).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A15A0668.
    SCULLY v. THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (775 SE2d 230)
   Miller, Judge.

Following a night of drinking, David Clark Scully suffered serious injuries on the University of Georgia campus after he tripped on an irrigation pipe set in a landscaped area and fell into a window well. Scully sued the Board of Regents of the University System of Georgia (“the Board”) for premises liability and negligent maintenance. The trial court granted summary judgment to the Board, and Scully appeals. Scully contends, inter alia, that the trial court erred in finding that (1) he was a licensee and not an invitee, and (2) the Board met the standard of care due to licensees. For the reasons that follow, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Home Builders Assn. of Savannah, Inc. v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). On appeal from a grant of a motion for summary judgment, we conduct a de novo review of the evidence. See id. While issues of negligence are not generally susceptible to summary adjudication, “[t]he trial court can conclude as a matter of law that the facts ... do not show negligence on the part of the defendant . . . where the evidence is plain, palpable and undisputable.” (Citation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997).

Viewed in the light most favorable to Scully, the evidence shows that on Friday, October 2, 2009, Scully and five friends drove to Athens to visit Matthew Christopher. Christopher was a freshman attending the University of Georgia and living in Creswell Hall, a university dormitory. Scully was an 18-year-old freshman at the Georgia Institute of Technology and this was his first visit to the University of Georgia campus.

Around 10:30 p.m., Scully and his friends arrived in Athens and went to Creswell Hall to drop off their things. There, Scully consumed rum shots. Scully then went to several fraternity parties before taking a taxi to downtown Athens and going to a few bars. Scully drank a couple of beers at the fraternity parties and then had two beers and some pizza in downtown Athens.

After the bars closed at approximately 2:00 a.m., Scully, Christopher and their friends began walking back through the university campus to Creswell Hall. They reached Park Hall, and Christopher led the group down the sidewalk behind Park Hall, on the north side of the building. Creswell Hall could also have been reached by crossing in front of Park Hall, which fronted Baldwin Street. Scully and Christopher both observed that the front of Park Hall was well-lit. They also noticed that one of the street lamps next to the sidewalk behind Park Hall was not working and the area behind Park Hall was dark.

Along the north side of Park Hall, the sidewalk is approximately nine feet wide and straight, with a concrete retaining wall on one side and an approximately six-foot-wide landscaped area between the sidewalk and the window wells adjacent to Park Hall. The landscaped area, which included pine straw and shrubbery, was not intended to be a walkway. In the landscaped area, there was a flexible irrigation pipe, which was stapled in place and covered with mulch.

As he walked behind Park Hall, Scully lagged behind his friends and began jogging to catch up with them. Scully stepped off the sidewalk and tripped on something “like a rope,” which he believed was part of the irrigation system. Scully fell into a window well, which was approximately eight feet deep. Scully was knocked unconscious and was unresponsive. He was transported to the hospital, where he remained for the next six days. Scully suffered a skull fracture and damage to his right frontal lobe.

Shortly after the fall, at around 5:00 a.m., Scully’s blood alcohol level was measured at 0.243. Scully deposed that he had “a buzz” at the time he fell and did not intend to stray from the sidewalk; however, he was looking ahead to see where his friends were and was not really paying attention to where the sidewalk ended. He also stated that it was too dark for him to see where the sidewalk ended and the landscaped area began.

1. Scully contends that at the time of the accident, he was an invitee on the University of Georgia campus because he was a guest of Christopher, who was a tenant of the Board. We disagree.

Scully’s status as either an invitee or a licensee determines the duty of care that the Board owed to him. See Ga. Dept. of Corrections v. Couch, 312 Ga. App. 544, 546 (1) (a) (718 SE2d 875) (2011).

An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose. A licensee, on the other hand, is a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for [his] own interests, convenience, or gratification.

(Footnote omitted.) Id. See also OCGA § 51-3-1.

The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or was for business with one other than the owner or occupier.

(Punctuation and footnote omitted.) Couch, supra, 312 Ga. App. at 546 (1) (a).

Here, Scully offers no evidence that the Board induced him to come upon the campus for the Board’s benefit. It is undisputed that Scully had no present business relationship with the University of Georgia and that he went to the campus to visit a friend. Therefore, his presence on the campus in the middle of the night was of no mutual benefit to him and the Board.

Scully, however, relies on this Court’s holding in Paul v. Sharpe, 181 Ga. App. 443, 444 (1) (352 SE2d 626) (1987), and argues that he enjoyed the status of an invitee because he was visiting Christopher, a tenant of Creswell Hall. A guest of a tenant is an invitee as to the tenant’s landlord. See Silman v. Associates Bellemeade, 294 Ga. App. 764 (2) (669 SE2d 663) (2008); Paul, supra, 181 Ga. App. at 444 (1) (tenant’s guests “stand in his shoes” as to the right of recovery in premises liability cases).

Christopher, however, was a resident of Creswell Hall, not Park Hall, where Scully was injured. The trial court noted that, under Paul, if Scully had been injured while visiting Creswell Hall, he would be entitled to invitee status. Park Hall, however, was several blocks from Creswell Hall, and Scully did not have to walk behind Park Hall to get to Creswell Hall; there was a well-lit public street in front of Park Hall that also led to Creswell Hall. Accordingly, the tenant exception applicable in Paul does not apply in this case. Compare Paul, supra, 181 Ga. App. at 444-445 (1) (child visiting an apartment complex was an invitee when injured on a bridge that was one of two means of ingress to the apartment complex).

As this Court noted in Paul, under the tenant exception,

[t]he invitee may not wander at will without further invitation to out-of-the-way and dangerous places on the premises; neither may he use parts of the premises for purposes wholly disconnected from and in no way pertaining to the business in hand or the objects of the invitation.

(Citation and punctuation omitted.) Paul, supra, 181 Ga. App. at 445 (1). Here, the area behind Park Hall was wholly disconnected from Scully’s visit to Creswell Hall.

Scully argues, in the alternative, that guests of university residents should be deemed invitees of the entire university premises. As a student of the University of Georgia, Christopher was an invitee of the Board throughout the campus. See Clark Atlanta Univ., Inc. v. Williams, 288 Ga. App. 180, 181(1) (654 SE2d 402) (2007). As a person with no contractual relationship with the University of Georgia, however, Scully was on the campus generally as a licensee of the Board. See OCGA § 51-3-2. To accept Scully’s arguments would transform anyone who visits a university student into an invitee for the entirety of their stay on campus, no matter where they venture and for what reason, which is inconsistent with the statutory distinction between invitees and licensees. Accordingly, the trial court correctly concluded that, as a matter of law, Scully was a licensee of the Board when he was injured outside of Park Hall.

2. Scully contends that even if he was a licensee, the trial court erred in finding that the Board did not violate its duty of care to him. Specifically, he argues that the combination of the streetlight being out and the irrigation pipe next to the window well with no surrounding barrier constituted a hazard, for which the Board was liable. We disagree.

“The standard for determining what duty an owner has to a licensee varies depending on the type of condition [that exists] on the land.” Aldredge v. Symbas, 248 Ga. App. 578, 580 (547 SE2d 295) (2001). The irrigation pipe placed in the landscaped area near the window well was not a mantrap or pitfall, but a static condition, and a landowner’s only duty as to a licensee regarding static conditions is to avoid wilful or wanton injury. See id. at 581; see also Jones v. Murphy, 306 Ga. App. 539, 540 (703 SE2d 26) (2010); OCGA § 51-3-2. “Wanton conduct has been described as that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent to do harm or inflict injury.” (Citation and punctuation omitted.) Trulove v. Jones, 271 Ga. App. 681 (1) (610 SE2d 649) (2005).

Decided July 8, 2015

Steven K. Leibel, Paul D. Menair, for appellant.

Samuel S. Olens, Attorney General, Robert L. Bunner, Senior Assistant Attorney General, for appellees.

Here, there is simply no evidence that the Board acted wilfully or wantonly to injure Scully or anyone else. There was a six-foot landscaped area between the sidewalk and the window well, and the irrigation pipe was placed in the landscaped area, which was not intended to be a walkway. See Aldredge, supra, 248 Ga. App. at 581 (finding no wilfulness or wantonness even though drainage ditch was obscured by shrubbery because area was not intended to be walked upon).

Moreover, the undisputed facts, even viewed in the light most favorable to Scully, show that the Board was diligent in maintaining the lighting in the area behind Park Hall. Specifically, although a street light was out at the time of Scully’s fall, the evidence in the record shows that the light had likely only been out for a short time. The maintenance department conducted regular lighting surveys on campus, every four to six weeks, and typically repaired or replaced lights that were out within one to two weeks. The maintenance department conducted a lighting survey on September 17, 2009, a little over two weeks before Scully fell.

Absent any evidence that the Board wilfully or wantonly injured Scully, the Board was entitled to summary judgment as a matter of law.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       Scully filed suit against both the Board and the University of Georgia. The Board “is a state agency that governs and manages the University System of Georgia and its member institutions []” Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878 (630 SE2d 85) (2006). State universities are not separate and distinct legal entities from the Board and, therefore, the University of Georgia cannot sue or be sued in its own capacity. See id.

       University of Georgia students are not restricted from having guests on the campus.

       Christopher deposed that he could not remember if the group was heading to Creswell Hall or to his fraternity house, but stated that there would not have been room for everyone to stay in his dorm room.

       A board-certified psychiatric pharmacist deposed that a blood alcohol level of 0.243 is consistent with consuming an estimated 16 to 17 alcoholic drinks and can cause poor judgment, poor coordination, poor eyesight, disinhibition and slowed cognition. Such a high blood alcohol level can also affect a person’s ability to walk.

       Compare Brown v. Clay, 166 Ga. App. 694, 695-696 (305 SE2d 367) (1983) (finding that guest of tenant visiting for the guest’s benefit is a licensee).

       The trial court correctly rejected Scully’s argument below that the window well constituted a hazard or a mantrap. Mantraps are deliberately set traps or perils hidden by the owner with the intent to cause injury. See Aldredge, supra, 248 Ga. App. at 580. Here, there is no evidence that the window well was intended to cause injury. Moreover, the window well was six feet away from the sidewalk and, thus, was not close enough to the traveled path to pose a danger to those who accidentally stepped off the path. See Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 800 (1) (a) (522 SE2d 739) (1999) (hole nine-and-a-half feet from paved path was not a mantrap).

       Maintenance workers tagged any lights that were out and the lights would remain tagged until repaired.

       Since we affirm the trial court’s ruling that the Board breached no duty to Scully, we need not consider Scully’s remaining contentions regarding causation and assumption of the risk.


author: Branch, Judge.

text:
    A15A0673.
    MARK et al. v. AGERTER.
    (775 SE2d 235)
   Branch, Judge.

This medical malpractice case arises out of Dr. Edward Mark’s alleged negligent placement of a halo device on Austin Agerter. Dr. Mark and his medical practice, Neurology, Neurosurgery & Spine Clinic of South Georgia, LLC (collectively, “Mark”), appeal from an order of the Superior Court of Lowndes County, which denied in part Mark’s motion in limine to exclude evidence of Mark’s alleged remedial measure. Specifically, the trial court found that evidence of the alleged remedial measure could be introduced to impeach the testimony of one of Mark’s witnesses. Mark contends that this ruling is in error, because no conflict exists between the testimony of his witness and Mark’s decision to change his practice as to the placement of halo devices on his patients. For reasons explained more fully below, we agree with Mark and reverse that part of the trial court’s order which holds that evidence of Mark’s alleged remedial measure is admissible for impeachment purposes.

A denial of a motion in limine is reviewed for an abuse of discretion, and an abuse of discretion occurs when the trial court “misapplies the law.” Thomas v. State, 330 Ga. App. 67, 70 (766 SE2d 527) (2014); One Bluff Drive v. K. A. P., Inc., 330 Ga. App. 45, 51-52 (766 SE2d 508) (2014). Because a motion in limine is a pretrial determination of the admissibility of evidence, “the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005). Irrelevant evidence that “does not bear directly or indirectly on the question being tried” should be excluded. CNL APF Partners v. Dept. of Transp., 307 Ga. App. 511, 515 (705 SE2d 862) (2010); Housing Auth. of Macon v. Younis, 279 Ga. App. 599 (631 SE2d 802) (2006). Atrial court errs in denying a motion in limine when there is “no circumstance under which the evidence at issue [is] likely to be admissible” at trial. Younis, 279 Ga. App. at 601. Here, the trial court abused its discretion when it misapplied the relevant law.

The record shows that on or about June 12, 2007, Agerter was injured in a motor vehicle accident and was transported to South Georgia Medical Center where Mark, a neurosurgeon, diagnosed Agerter’s injury as a fractured C2 vertebra. Mark treated Agerter by placing him in a halo device designed to stabilize his spine. The horseshoe-shaped device was placed with the opening in the front, rather than the back, and was anchored either in the frontal bone of Agerter’s skull or in his temples. Agerter was later treated by Dr. Daniel H. Silcox III, an orthopedic surgeon and a cousin of Agerter’s mother, who advised Agerter that the halo device was on backward. Silcox reversed the halo device so that the opening was in the back. Agerter subsequently sued Mark for malpractice, claiming that Mark’s negligent placement of the halo opening in the front, with screws in Agerter’s temples, caused muscle and other tissue damage.

Mark contends that Agerter’s halo ring was properly installed with the opening in the front. At trial, Mark plans to introduce the testimony of Alfred Iverson, president of the company that manufactures the halo device. During his deposition, Iverson testified that from a structural engineering standpoint, nothing restricts the placement of the halo with the opening in the front, and the decision of where to position the halo is within the discretion of the treating surgeon.

Prior to Agerter’s lawsuit against him, Mark’s “routine custom and practice” was to place the halos on his patients with the opening in the front, as Mark did with Agerter. However, Mark testified as to his belief that Agerter sued because the manufacturer’s pamphlet depicted the halo device installed with the opening in the back. Thus, Mark further testified that after Agerter filed his suit, he positions all halo devices on his patients with the opening in the back. Mark explained his decision to change his usual practice, stating that the lawsuit meant that “my [previous] practices and what I had been doing had obviously come into question... and if there’s a chance that the standard would be changed, I didn’t want to be [sued] again.”

To support his negligence claims, Agerter wishes to introduce evidence of Mark’s change in procedure at trial. Mark filed a motion in limine to exclude this change as inadmissible evidence of a subsequent remedial measure.

The trial court granted Mark’s motion in limine in part and ruled that Mark’s testimony about the change in position was indeed evidence of a subsequent remedial measure and therefore was generally inadmissible. The court concluded, however, that if Agerter presented evidence that would be contradicted by Mark’s actions, then the evidence of a change in procedure would be admissible. The court further ruled that Iverson’s proposed testimony would “conflict with . . . Dr. Mark’s actions” and therefore would “open the door” for the evidence of Mark’s change in practices. Accordingly, if Mark presented Iverson’s testimony, then Agerter could “go into Dr. Mark’s change in his procedures following his care and treatment of the Plaintiff in this case.”

Mark applied for a certificate of immediate review of the trial court’s ruling as to the admissibility of Mark’s subsequent remedial measure for impeachment purposes. The trial court issued the requested certificate, and this Court subsequently granted Mark’s application for an interlocutory appeal.

OCGA § 24-4-407 restricts evidence of subsequent remedial measures as follows:

In civil proceedings, when, after an injury or harm, remedial measures are taken to make such injury or harm less likely to recur, evidence of the remedial measures shall not be admissible to prove negligence or culpable conduct____

This rule exists because persons “should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.” Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657) (1983) (citation and punctuation omitted). When subsequent remedial measures are introduced, it is “generally presumed” that the purpose is to show “that the defendant recognizes and admits his negligence.” McCorkle v. Dept. of Transp., 257 Ga. App. 397, 398-399 (1) (571 SE2d 160) (2002) (citation and punctuation omitted). Therefore, “[e]vidence of subsequent remedial measures generally is inadmissible in negligence actions.” Id. at 398 (1). Otherwise, “the instituting of remedial safety measures might be discouraged if such conduct is admissible as evidence of negligence.” Id.

Evidence of subsequent remedial measures may, however, be used for impeachment: “The provisions of this Code section shall not require the exclusion of evidence of remedial measures when offered for impeachment[.]” OCGA § 24-4-407. We have cautioned that the impeachment exception

“must be applied with care, since any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach a party’s testimony that he was using due care at the time of the accident. If this counted as impeachment the exception would swallow the rule.”

McCorkle, 257 Ga. App. at 400 (1), quoting Studard v. Dept. of Transp., 219 Ga. App. 643, 645 (2) (466 SE2d 236) (1995); see also Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 82 (1) (508 SE2d 454) (1998) (cautioning that exceptions to the ban on evidence of subsequent remedial measures must be applied “most judiciously’) (punctuation omitted).

Brooks, supra, illustrates the proper use of the impeachment exception in a negligence action. There, the plaintiffs sued the installers of insulation in their apartment complex after their building burned down. 251 Ga. at 395-396. The plaintiffs’ theory was that the installers had negligently covered recessed lights and vents two days before the fire, allowing heat to build up until the insulation ignited. Id. at 396. The defendants sought to refute the causation element of the plaintiffs’ case by offering testimony that no other buildings in the complex had caught fire. Id. The plaintiffs sought to impeach this testimony by introducing evidence that the installers had quickly corrected the problem in the other buildings by installing metal shields to keep the insulation out of the recessed areas. Id. at 396-397. The trial court excluded the evidence, but the Supreme Court held that the defendant had opened the door to rebuttal testimony of remedial measures. Id. Therefore, the subsequent remedial measures should have been admitted under the impeachment exception. Id. at 397-398. Otherwise, the jury was left with the erroneous impression that the other recessed areas had remained covered, yet had not caught fire. Id. at 398; see also APAC-Georgia v. Padgett, 193 Ga. App. 706, 707-709 (1) (388 SE2d 900) (1989) (allowing evidence of subsequent remedial measures to correct false impression left by defendant’s testimony).

In this case, Mark wants to introduce Iverson’s testimony that there is nothing wrong, from a structural engineering standpoint, with placing the halo opening in the front and that such placement decisions are left to the surgeon. This testimony does not “contradict” Mark’s later decision to exercise his discretion to position halo openings in the rear. Indeed, Mark’s decision is consistent with Iverson’s testimony that the halos may be installed in either direction, at the discretion of the treating physician. Thus, unlike the evidence at issue in Brooks, Iverson’s testimony does not have the potential to mislead the jury on questions of negligence or causation.

Accordingly, there is currently no evidence which the subsequent remedial measure could impeach. We therefore reverse the trial court’s finding that the impeachment exception applies here, as this ruling misapplied the relevant law and thus constitutes an abuse of discretion. We affirm the remainder of the trial court’s order on Mark’s motion in limine.

Decided July 8, 2015.

Martin Snow, John C. Edwards, Joel A. Howe, for appellants.

Howell Law Firm, Robert D. Howell; Moore & Voy les, Gregory A. Voyles, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, P. J., concurs. Miller, J., concurs in judgment only.

       We affirm the remainder of the trial court’s order, which neither party has challenged on appeal.

       Agerter contends that the screws were placed into his temple muscles. Mark, however, claims that the screws were placed in the frontal bone.

       Agerter apparently received two pamphlets; one when he was released from the hospital and one that came in the box with the halo device.


text:
    A15A0696.
    ELLIS v. THE STATE.
    (775 SE2d 238)
   Miller, Judge.

Following a jury trial, Raymond Charles Ellis, Jr., was convicted of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (1)), theft by receiving stolen property (OCGA § 16-8-7 (a)), obstructing an officer (OCGA § 16-10-24 (a)), and driving on a suspended license (OCGA § 40-5-121 (a)). Ellis appeals from the denial of his motion for new trial, contending that the trial court erred in admitting his custodial statements into evidence because the statements were obtained after he clearly invoked his right to counsel. For the reasons that follow, we reverse.

Viewing the evidence in the light most favorable to the jury verdict, the evidence shows that the victim drove to the Southern Springs apartment complex in Morrow to purchase a dog. The victim had a friend follow him to the location. Upon arriving at the apartment complex, the victim was directed to go to the back of a building to find the dog. When the victim did not find the dog, he walked back to his car. Three individuals then approached the victim, and one of the individuals cocked a pistol and pointed it at the victim. The victim got on the ground, and the assailants took the victim’s wallet, which held approximately $1,160 in cash, and the victim’s cell phone. Ellis and some of the assailants then got into the victim’s car.

Ellis, who had a suspended license, drove the victim’s car. As Ellis drove off, the victim got into his friend’s car, and they followed Ellis. By this time, the victim’s friend had called the police. A short time later, police officers joined the pursuit and followed Ellis as he drove to another apartment complex. Once inside the apartment complex, Ellis and another individual exited the victim’s car and began to run.

The pursuing officer stopped and exited his vehicle and began chasing Ellis. During the chase, Ellis dropped a loaded gun that was later recovered by the police officer. The parties stipulated that the gun had previously been stolen. Ignoring the police officer’s commands to stop, EÍlis kept running after he dropped the gun, and he only stopped when he tripped and fell, at which point the police officer drew his service weapon and ordered Ellis to remain still. Ellis was then handcuffed, arrested, and transported to the police department for an interview.

Prior to commencing the police interview, which was recorded, the deteetiW began to advise Ellis of his rights as follows:

DETECTIVjS: Before we get started, I need to advise you of your rights. I’m going to hand you this Miranda form. And I want you to — I want you to read along with what I am saying. And if you understand, I want you to initial next to it. Do you u'nderstand?
ELLIS: Yes.
DETECTIVE: You have the right to remain silent. Do you understand that?
ELLIS: Yes.
DETECTIVE: Put your initials right there.
ELLIS: (Complies with request.)
DETECTIVE: Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney and have him present with you while you are being questioned.
ELLIS: So I can call him now?
DETECTIVE: Sir?
ELLIS: Are you saying I can call him now?
DETECTIVE: Do you have an attorney now?
ELLIS: Yes.
DETECTIVE: You have an attorney? Okay. Let’s go ahead and finish with this first. Do you understand that?
ELLIS: Yes.

The detective then advised Ellis of the rest of his Miranda rights, and Ellis signed a waiver of rights form. The detective then asked Ellis if he was willing to talk about the incident. Ellis responded that “[i]t don’t matter[,]” and agreed to talk to the detective. The detective never honored Ellis’s initial request to call his attorney.

During the interview, Ellis claimed that his friend arranged to lure the victim to the Southern Springs apartment complex, he decided to jump into the victim’s car when the victim was on the ground, and his friend got into the car with the victim’s money as Ellis began driving away. Ellis claimed that there were other people in the area at the time, but he did not know any of them, and that it was his friend who had the gun. Ellis later admitted during the interview that he was carrying a loaded gun, but denied ever pointing it at the victim or taking any money from him.

Prior to trial, Ellis moved to exclude his custodial statements arguing that he clearly invoked his right to counsel. The trial court denied Ellis’s motion, finding that he did not clearly request to have counsel present for the interview and that he otherwise validly waived his Miranda rights. The taped recording of Ellis’s custodial interview was played for the jury. At trial, the victim testified that Ellis did not point a gun at him and had no contact with him during the robbery.

1. On appeal, Ellis contends that the trial court erred in denying his motion to exclude his custodial statements because he made a clear request for counsel and he did not initiate communication with the detective after invoking his right to counsel. We agree.

A suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation. If the police persist in questioning a suspect who has requested that counsel be present, any resulting statements made by the suspect are inadmissible in the State’s case-in-chief. In order for a suspect to properly invoke his right to counsel during a custodial interrogation, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

(Citation omitted.) Manley v. State, 287 Ga. 338, 347 (7) (698 SE2d 301) (2010). Since Ellis’s statements to the detective were recorded “and there are no relevant additional facts, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review.” (Citation omitted.) Wheeler v. State, 289 Ga. 537, 538 (713 SE2d 393) (2011).

Here, after the detective advised Ellis that he had the right to talk to an attorney and have the attorney present during the police interview, Ellis asked whether he could call his attorney. First, Ellis asked, “So I can call him now?” While Ellis’s request was somewhat muffled, causing the detective to ask for clarification, Ellis then clarified “Are you saying I can call him now?” At this point, the detective asked whether Ellis had an attorney, and Ellis responded in the affirmative. In asking whether he could call his attorney, Ellis “did not use equivocal words such as ‘might’ or ‘maybe’ when referring to his desire for a lawyer. He was also not referring to a need for counsel sometime in the future[.]” (Citation omitted.) Robinson v. State, 286 Ga. 42, 44 (684 SE2d 863) (2009).

To the extent that the State argues that Ellis’s statements were ambiguous because the detective sought clarification by asking whether he had an attorney, this claim lacks merit. Out of context, Ellis’s questions about whether he could “call him now?” might seem ambiguous. However, Ellis asked these questions when the detective advised Ellis of his right to have an attorney present during his custodial interview. Consequently, it is readily apparent that Ellis was referring to his attorney when asking whether he could call him. See Manley, supra, 287 Ga. at 347 (7) (the measure of a defendant’s request for counsel is whether a reasonable police officer in the circumstances would understand the statement to be a request for an attorney).

The State further argues that the Supreme Court of Georgia has held that a defendant’s question about whether he could call an attorney is not a clear invocation of his right to counsel. See Ford v. State, 257 Ga. 461, 466 (6) (360 SE2d 258) (1987). Ford is distinguishable because unlike the circumstances here, the police officers in that case stopped questioning the defendant when he asked to call his counsel, and the defendant later initiated further conversation with the police officers. Id. Moreover, the Supreme Court has more recently held that a defendant’s request to call his wife so that she may call his attorney is a clear request for an attorney. See McDougal v. State, 277 Ga. 493, 495, 499 (1) (B) (591 SE2d 788) (2004). The Supreme Court has also held that a defendant’s request for counsel is not rendered ambiguous simply because it is articulated in the form of a question. See Taylor v. State, 274 Ga. 269, 272 (1) (553 SE2d 598) (2001) (statement “Can I have an attorney?” was a clear request for counsel), disapproved on other grounds in State v. Chulpayev, 296 Ga. 764, 783 (3) (b) (770 SE2d 808) (2015).

Given this more recent Supreme Court precedent, Ellis’s request to call his attorney was a clear invocation of his right to counsel, and the fact that Ellis agreed to talk to the detective after the detective finished reading the form did not vitiate his earlier request. See Allen v. State, 259 Ga. 63, 66-67 (1) (a), (b) (377 SE2d 150) (1989) (holding that once the accused invoked his right to counsel, the police must stop all questioning, including advising the accused of his Miranda rights, and any statements by the accused following his initial request may not be used to “cast retrospective doubt on the clarity of the initial request itself”) (citation and punctuation omitted). Therefore, Ellis’s custodial statement was taken in violation of his constitutional right to counsel, and the trial court erred in failing to exclude the statement. Id. at 67 (1) (b).

2. This does not end our inquiry, because having found constitutional error, we must determine if that error was harmless.

Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Reversal is required where there is “a reasonable possibility” that the improperly admitted evidence contributed to the verdict.

(Citation omitted.) Wingate v. State, 296 Ga. 21, 27 (2) (c) (764 SE2d 833) (2014). The State has the burden of proving that the constitutional error was harmless. Horne v. State, 281 Ga. 799, 808 (5) (642 SE2d 659) (2007). The State did not meet its burden in this case.

In his statement, Ellis provided contradictory explanations about whether he possessed the firearm, which was stipulated to be stolen. At first, Ellis denied carrying a gun, but he later admitted that he had the gun which he said he found by a trash can at a club. Ellis’s statement went to an essential element of theft by receiving stolen property because a jury could infer from his contradictory explanations that he knew or should have known that the handgun was stolen. See Miller v. State, 275 Ga. 32, 34 (1) (561 SE2d 810) (2002) (defendant’s contradictory statements about how he came to possess stolen property are circumstances from which a jury may infer knowledge); DeLong v. State, 270 Ga. App. 173, 174-175 (1) (606 SE2d 107) (2004) (whether defendant’s explanation of possession of stolen property was satisfactory and credible was a question for the jury to resolve). In light of these circumstances, we cannot say that the State proved beyond a reasonable doubt that the admission of Ellis’s statement in violation of his constitutional right to counsel did not contribute to the jury’s verdict. See Woodard v. State, 256 Ga. App. 464, 466 (1) (568 SE2d 528) (2002).

Decided July 8, 2015.

Rodney A. Williams, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Jay M. Jackson, Assistant District Attorneys, for appellee.

Excluding Ellis’s custodial statement, there was sufficient evidence to sustain his convictions for possession of a firearm at the time of the armed robbery, obstructing an officer, and driving on a suspended license. As a result, he may be retried on these charges. See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992). “The fact there was other evidence sufficient to convict does not, [however,] make the error harmless; rather, the test is whether the evidence may have influenced the jury’s verdict.” (Citation omitted; emphasis supplied.) Horne, supra, 281 Ga. at 808-809 (5). Since we conclude that the jury’s verdict may have been influenced by the improper admission of Ellis’s custodial statement, we reverse his convictions. See Gifford v. State, 287 Ga. App. 725, 726-727 (652 SE2d 610) (2007) (after reversing convictions based upon conclusion that the constitutional violation was not harmless error, this Court evaluated the sufficiency of the evidence to determine whether defendant may be retried on the charged counts).

Judgment reversed.

Branch, J., concurs. Andrews, P. J., concurs in judgment only.

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

       The Supreme Court of Georgia disapproved Taylor to the extent that it could he interpreted as providing that the fruits of statements obtained in violation of OCGA § 24-8-824 must be suppressed.


author: McFadden, Judge.

text:
    A15A0117.
    CITY OF ATLANTA v. HOTELS.COM, L.P. et al.
    (775 SE2d 276)
   McFadden, Judge.

This is the latest chapter in litigation between the City of Atlanta, Georgia (the City) and several online travel companies (OTCs) regarding occupancy taxes due on hotel rooms in the City that are booked by customers through the OTCs pursuant to contracts between the OTCs and hotels. In earlier proceedings, our Supreme Court affirmed the trial court’s summary judgment rulings on most of the claims brought by the City against the OTCs. City of Atlanta v. Hotels.com, 289 Ga. 323 (710 SE2d 766) (2011). This appeal challenges the trial court’s grant of summary judgment to the OTCs on the two remaining claims in the case: conversion and breach of trust. We affirm the grant of summary judgment because the undisputed evidence shows that the City seeks to recover property not subject to a conversion claim and because earlier proceedings in the case preclude the breach of trust claim. The City also appeals from the trial court’s denial of its motions seeking additional discovery. We affirm that ruling as well because the City has shown no abuse of discretion.

1. Facts and procedural posture.

Our Supreme Court set forth the facts of this case in City of Atlanta v. Hotels.com, supra, 289 Ga. 323. The OTCs “book hotel rooms and make other travel arrangements for customers who access their services over the internet.” Id. at 323. Under their business model, known as the “merchant model,”

the consumer pays the OTC a retail “room rate” and a line item for “taxes and fees” in order to reserve and later occupy one of the City’s hotel rooms. The consumer pays nothing to the hotel for occupancy or taxes and only provides a credit card at check-in. . . . [T]he OTCs calculate the hotel occupancy tax amount [required by the City pursuant to OCGA § 48-13-50 et seq.] based on the wholesale rate the OTC negotiates with hotels for the right to broker rooms and not on the retail room rate the OTC charges the customer for the right to occupy a room. The OTC retains whatever it has collected from the consumer over the amount of the remittance to the hotel. If the hotel fails to submit an invoice or charge to the OTC in the time period designated by contract, then the OTC retains all monies collected from the customer, including any money purportedly collected for the payment of hotel occupancy taxes.

City of Atlanta v. Hotels.com, 289 Ga. at 323-324.

“The City brought an action alleging that the retail room rate was the appropriate amount upon which to base the hotel occupancy tax and seeking injunctive relief, as well as back taxes from the OTCs.” City of Atlanta, 289 Ga. at 324. The trial court granted in part and denied in part the parties’ motions for summary judgment and the Supreme Court affirmed that judgment. Id. at 324-325. In pertinent part, the Supreme Court affirmed the trial court’s holdings: (1) that “the ‘rent’ for occupying a City hotel room is the room rate paid by the consumer rather than the negotiated wholesale rate between the OTC and the hotel,” id. at 325-326 (1); (2) that the City was entitled to an injunction ordering the OTCs, so long as they voluntarily collected taxes from customers seeking to occupy the City’s hotel rooms, to do so based on the room rate, to remit the taxes to the City, and to maintain certain data relevant to the collection and remittance of the taxes, id. at 326-327 (2); and (3) that “the City did not show it had a remedy [for the recovery of back taxes] under the claims asserted — unjust enrichment and money had and received (along with collateral issues of imposing a constructive trust and an equitable accounting),” id. at 328 (4) (footnote omitted). The Supreme Court also held that the trial court had not ruled upon the City’s claim for conversion. Id. at 328 (4), n. 5. Consequently, the “case remained open following the issuance of the remittitur.” Trip Network v. Dempsey, 293 Ga. 520, 522 (748 SE2d 432) (2013) (citation omitted) (addressing impact of Supreme Court’s holding regarding conversion claim in City of Atlanta v. Hotels.com, supra, 289 Ga. 323).

Once the case returned to the trial court, the City amended its complaint to add a new claim for breach of trust, citing a statement by the Supreme Court that “[t]he monies [voluntarily collected by the OTCs as taxes from consumers] do not belong to the OTCs or the hotels, but are held in trust for the City.” City of Atlanta v. Hotels.com, 289 Ga. at 326-327 (2) (citations omitted). The OTCs moved for summary judgment on the conversion claim that the Supreme Court said had not earlier been decided and on the new breach of trust claim. The City sought additional discovery. The trial court entered an order granting summary judgment on the conversion and breach of trust claims and denying additional discovery to the City.

2. Summary judgment.

The City argues that the trial court erred in granting summary judgment to the OTCs on the City’s claims for conversion and breach of trust. Summary judgment is properly granted when the pleadings and evidence “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.” OCGA § 9-11-56 (c). “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” Scrocca v. Ashwood Condominium Assn., 326 Ga. App. 226 (1) (756 SE2d 308) (2014) (citation and punctuation omitted).

(a) Conversion.

The trial court did not err in granting summary judgment on the City’s claim for conversion of “monies owed to the City in the way of taxes collected by [the OTCs] but not remitted,” because generally money is not subject to a civil action for conversion and the City has pointed to no evidence showing that the money in this case comprised a specific, separate, identifiable fund excepting it from that general rule. See Taylor v. Powertel, Inc., 250 Ga. App. 356, 359 (2) (551 SE2d 765) (2001).

“Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987) (citation and punctuation omitted). To establish a claim for conversion, a plaintiff must show “(1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property.” Trey Inman & Assoc. v. Bank of America, 306 Ga. App. 451, 457 (4) (702 SE2d 711) (2010) (citation and punctuation omitted).

The general rule is that money is not a type of property that is subject to an action for conversion. See Trey Inman & Assoc., 306 Ga. App. at 458 (4); Taylor, 250 Ga. App. at 359 (2). “While money constitutes personal property, money is intangible personalty that is fungible, because it belongs to a class of property which cannot be differentiated by specific identification unless there has been created a specific fund that has been set aside from other money.” Taylor, 250 Ga. App. at 359 (2) (citations omitted). Where a plaintiff “is not seeking to recover some specific money, . . . but instead seeks to recover a certain amount of money generally [,] . . . [it] is not such a case for which a cause of action for conversion was intended.” Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (1) (365 SE2d 494) (1988) (citation omitted). See generally Decatur Auto Center v. Wachovia Bank, 276 Ga. 817, 820-821 (583 SE2d 6) (2003) (discussing examples of conversion claims seeking to recover specific money in context of claim to recover face value of converted check). “[Conversion is not a viable claim where there is nothing more than a failure by the defendant to pay money owed to the plaintiff.” Internal Medicine Alliance v. Budell, 290 Ga. App. 231, 239 (5) (659 SE2d 668) (2008) (citations omitted).

Although the City attempts to characterize its claim as one for specific money rather than a certain amount of money generally, it has not pointed to evidence to support this characterization. To be excepted from the general rule that money is not subject to a conversion action, the City was required to show that the money it sought “comprise [d] a specific, separate, identifiable fund” that belonged to it. Taylor, 250 Ga. App. at 359 (2) (citations omitted). The evidence cited by the City does not satisfy this requirement. It points to evidence that customer bills reflected itemized “taxes and fees” that included amounts collected by the OTCs but not remitted to the City. In Taylor, supra, however, we rejected a similar argument involving itemized taxes on a telephone bill, finding instead that the plaintiff “failed to show that the portion of the total telephone bill specifically attributable to taxes comes within th[e] exception and that these sums constituted an identifiable fund belonging to him to which he had an immediate right of possession.” Id. at 359 (2) (citation omitted). The City also points to deposition testimony describing money being held in reserve against potential occupancy tax liability, but again it points to no evidence that the reserve comprised a “specific, separate, identifiable fund [as required] to support an action for conversion.” Id. (citations omitted).

Despite the City’s efforts, the undisputed evidence shows that its conversion claim concerns “nothing more than a failure by [the OTCs] to pay back money allegedly owed to the [City].” Internal Medicine Alliance, 290 Ga. App. at 239 (5) (citations omitted). Consequently, the trial court did not err in granting summary judgment to the OTCs on the claim.

(b) Breach of trust.

The trial court did not err in granting summary judgment to the OTCs on the claim for breach of trust that the City asserted in an amended complaint after the Supreme Court’s 2011 decision in the case, City of Atlanta v. Hotels.com, supra, 289 Ga. 323. That claim, as the City concedes in its appellate briefs, concerns the alleged breach of a constructive trust. It therefore fails because no constructive trust has been imposed in this case.

A constructive trust is an equitable remedy imposed by a court to prevent unjust enrichment. Ansley v. Raczka-Long, 293 Ga. 138, 141 (3) (744 SE2d 55) (2013); St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 138 (2) (508 SE2d 646) (1998). See OCGA § 53-12-132 (a) (constructive trust is “implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity”). It is not the basis for an independent cause of action. Morrison v. Morrison, 284 Ga. 112, 113 (1) (663 SE2d 714) (2008). Earlier proceedings in this case established that the City was not entitled to the remedy of a constructive trust. The trial court declined to impose a constructive trust on the back taxes, and the Supreme Court affirmed that decision. City of Atlanta v. Hotels.com, 289 Ga. at 328 (4). Because the Supreme Court expressly affirmed the trial court’s refusal to impose a constructive trust, we decline to construe that court’s reference — in another part of its opinion — to monies “held in trust for the City,” id. at 327 (2) (citations omitted), as a holding that the City had a constructive trust over the back taxes. Moreover, in a subsequent order declining equity jurisdiction over this appeal and transferring the appeal to this court, the Supreme Court plainly stated that “no constructive trust was actually imposed” in this case.

Decided July 9, 2015

Pope, McGlamry, Kilpatrick, Morrison & Norwood, C. Neal Pope, William U. Norwood, Wade H. Tomlinson, for appellant.

Accordingly, it is the law of this case that no constructive trust was imposed on the back taxes. See Security Life Ins. Co. of America v. Clark, 273 Ga. 44, 46 (1) (535 SE2d 234) (2000) (“Under the law of the case’ rule, any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals, as the case may be.”) (citations and punctuation omitted). See OCGA § 9-11-60 (h). Under these circumstances, the OTCs were entitled to summary judgment on the City’s claim for breach of a constructive trust.

3. Discovery.

The City argues that the trial court erred in denying its various discovery motions. At the time the City filed the motions, the case had already gone through summary judgment proceedings including appellate review of the trial court’s summary judgment ruling. In the subsequent motions, the City sought additional discovery to respond to the OTCs’ summary judgment motion on the new breach of trust claim and the conversion claim that the Supreme Court held the trial court had not addressed.

“[W] e will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion.” Ford Motor Co. v. Gibson, 283 Ga. 398, 401 (1) (659 SE2d 346) (2008) (citation and punctuation omitted). This standard of review includes motions seeking additional discovery pursuant to OCGA § 9-11-56 (f), the Code section upon which the City based one of its motions. Sims v. First Acceptance Ins. Co. of Ga., 322 Ga. App. 361, 366-367 (4) (745 SE2d 306) (2013). The City has not shown a clear abuse. No additional discovery would bear upon the OTCs’ entitlement to summary judgment on the breach of trust claim because, as discussed above, earlier proceedings in this case barred that claim. And as the City alleged the conversion claim in its original complaint, it had the opportunity to seek discovery and resolve any discovery disputes regarding that claim before the first round of summary judgment motions. We find no error in the trial court’s denial of the City’s motions seeking additional discovery at this point in the case.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Jones Day, E. Kendrick Smith, Lucas W. Andrews; Bondurant, Mixson & Elmore, Frank M. Lowrey TV; Rogers & Hardin, Brett A. Rogers, Richard H. Sinkfield, for appellees.