text:
    A12A0392.
    BARTLETT et al. v. McDONOUGH BEDDING COMPANY, INC.
    (722 SE2d 380)
   Ellington, Chief Judge.

Lynwood Bartlett, who was injured when he fell down stairs in a shop leased by McDonough Bedding Company, Inc. (“McDon-ough”), brought this premises liability action against McDonough in the Superior Court of Henry County. Following a hearing, the trial court granted McDonough’s motion for summary judgment, and Bartlett appeals. Because the evidence of record establishes that Bartlett failed to exercise ordinary care for his own safety, we affirm.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.]” (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). In moving for summary judgment,

a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.

(Citation and punctuation omitted.) Id.

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Id. at 624 (1) (a).

So viewed, the record shows the following undisputed facts. On the afternoon of May 5, 2007, a sunny day, the Bartletts visited the McDonough Bedding Company, a bedding and antiques shop. At the back of the shop, a stairwell connected the main level to a lower level where there was a bookshop. The stairwell was bounded on one side by the rear wall and on the other side by a half-height wall. The stairwell was illuminated by ceiling fixtures and by natural light through windows at the top and bottom of the stairs.

By agreement between McDonough and the proprietor of the bookshop, no one was permitted to use the stairs to travel between the two floors. Cecelia Lawrence, who worked in the shop, deposed that, on the day at issue, there was a chain across the top of the stairs, attached to the end of the half wall and to the rear wall. Merchandise, including a small table, a chair, and a fireplace screen, was displayed around the landing area at the top of the stairs.

In his deposition, Bartlett testified that, as he was looking at merchandise, he took a step, his left foot went down into the stairwell, and he fell backward. According to Bartlett, he was unaware of the stairwell’s presence, despite lighting that was “sufficient” for viewing the merchandise in the landing area. When asked how he could have failed to see the stairwell, Bartlett deposed that merchandise on the floor in the landing area prevented him from seeing the stairs going down and that “things shouldn’t have been covered up as well as they were[.]” In addition, he stated, “I was not looking for a stairway, so I didn’t see one.” Sandra Bartlett, who did not see her husband fall, deposed that, as she walked into the landing area to go to his aid, she had no trouble seeing the stairs because she was watching where she was going rather than looking at merchandise. In addition, she deposed that the fireplace screen was before the landing and that she had to walk around it to get to the stairs.

Under Georgia law,

[a]n owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for any invitees. OCGA § 51-3-1. However, an owner or occupier of land is not an insurer of an invitee’s safety. Rather, the basis of an owner/occupier’s liability to an invitee injured on the premises is the owner/occupier’s superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. On the other hand, an invitee must exercise ordinary care to avoid the consequences of any such negligence on the part of an owner/occupier, and the failure to do so bars an invitee’s recovery against the owner/occupier. OCGA § 51-ll-7[.] ... It is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to [himself or] herself. The reasonable selection of a route of travel is a part of the invitee’s duty to exercise ordinary care for [his or] her own safety. While an invitee need not necessarily choose the safest course [through or] across the owner/occupier’s property, where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience, the degree of caution required by the invitee’s duty to exercise ordinary care for [his or] her own safety is heightened by any increased risk resulting from that choice. Under such conditions, the invitee assumes the risk of those hazards existent in the selected route where the conditions do not constitute a hazard when the traversed property is used for its intended purpose, unless the hazard is common to both areas or the owner has notice that the unauthorized route is being regularly used improperly.

(Citations and punctuation omitted.) Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 812-813 (440 SE2d 545) (1994). See Chamblee v. Grayco, Inc., 266 Ga. App. 154, 156 (596 SE2d 683) (2004) (noting the continuing applicability of the voluntary departure rule following the Supreme Court of Georgia’s decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997)).

In this case, viewed in the light most favorable to Bartlett’s contentions, the record shows that the static hazard which led to his injuries lay just behind an array of merchandise arranged on the floor so tightly that it completely concealed an opening in the floor of the dimensions of the stairwell. Despite his inability to see beyond the merchandise, however, Bartlett continued to move in that direction. His attempt to walk between or over the thick clutter of merchandise, where there was not an aisle or clear area of floor visible, constituted a voluntary departure from the route designated and maintained by McDonough for customers’ safety and convenience and imposed a heightened duty of care for his own safety. Even if the opening to the stairwell was not visible from the direction

Decided January 24, 2012.

John H. Ridley, Jr., for appellants.

Smith, Welch, Webb & White, Marc A. Avidano, for appellee.

Bartlett approached it, as he contends,

[he] was aware of that lack of visibility and should have exercised greater caution for [his] own safety. [Bartlett’s] failure to react to the diminished visibility of the [floor] beyond the [merchandise], and conduct [himself] accordingly, itself constituted a failure to exercise ordinary care for [his] own safety. Consequently, [he] may not recover from [McDonough] for [his] injuries resulting from that static defect, and the trial court thus properly granted summary judgment for [McDonough],

(Emphasis in original.) Gaydos v. Grupe Real Estate Investors, 211 Ga. App. at 813-814. “Further, the sole distraction [Bartlett] asserts, looking [at merchandise], cannot be accepted under the distraction theory because that was the very activity that brought him to [McDonough].” Harper v. Kroger Co., 212 Ga. App. 570, 571 (443 SE2d 7) (1994).

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       In the same action, Bartlett’s wife, Sandra, asserted a claim for loss of consortium. The trial court’s order applied to her claim as well, and she joins in this appeal.

       See OCGA § 9-11-56 (c) (Summary judgment is proper “if 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.”).

       A static defect is one that is not inherently dangerous or likely to cause injury until one drives or falls into it or trips over it. Gaydos v. Grupe Real Estate Investors, 211 Ga. App. at 813; Hosp. Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500, 501 (402 SE2d 103) (1991); Charles R. Adams III, Ga. Law of Torts § 4:6 (c) (2) (2011-2012 ed.). A hazardous staircase is a static defect. Mechanical Equip. Co. v. Hoose, 241 Ga. App. 412, 413 (523 SE2d 575) (1999).

       See Chamblee v. Grayco, Inc., 266 Ga. App. at 155-157 (An apartment complex owner was entitled to summary judgment where the plaintiff slipped and fell after voluntarily stepping off the sidewalk and onto a partially exposed drainage pipe that was adjacent to the sidewalk.); Williams v. Park Walk Apartments, 253 Ga. App. 429, 431 (559 SE2d 169) (2002) (An apartment complex owner was entitled to summary judgment where the plaintiff stepped in a hole adjacent to a grass sprinkler after leaving the sidewalk to walk across the grass to get to her car.); Cheek v. Nat. Auto Sales, 253 Ga. App. 114, 115-116 (558 SE2d 451) (2001) (A car dealership was entitled to summary judgment where the rear of the car lot was fenced off from an access road that ran behind the lot and where the plaintiff fell as she tried to step under a chain stretched between two poles to reach the car lot from the access road.); see also Lowery’s Tavern v. Dudukovich, 234 Ga. App. 687, 691-692 (3) (507 SE2d 851) (1998) (A building owner was entitled to summary judgment where the plaintiff walked down an unfamiliar alley, opened a service door at the side of an unknown building, stepped into a pitch-black doorway, and fell down an elevator shaft.).

       As the Supreme Court of Georgia explained,
      when an invitee explains that he was not looking at the location of the hazard which caused injury because of something in the control of the owner/occupier, which purported distraction is of such a nature that the defendant might have anticipated that it would divert an invitee’s attention, e.g., the conduct of a store employee, the premises construction or configuration, or a merchandise display of such a nature that its presence would not have been anticipated by the invitee, the invitee has presented some evidence that the invitee exercised reasonable care for the invitee’s own safety. It will then be for the fact-finder to determine if the injury sustained was proximately caused by the defendant’s negligence and whether the plaintiff failed to exercise reasonable care for personal safety.

        Robinson v. Kroger Co., 268 Ga. 735, 746 (2) (a) (493 SE2d 403) (1997).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A1774.
    ELSASSER v. THE STATE.
    (722 SE2d 327)
   McFadden, Judge.

A jury found Brian Elsasser guilty of two counts of simple battery, as lesser included offenses of aggravated battery, criminal damage to property in the second degree and disorderly conduct. The trial court ruled that the two simple battery counts merged for purposes of sentencing and imposed a total sentence of twelve months to serve in a work-release program, followed by six years on probation. The trial court also ordered restitution as part of the sentence, requiring Elsasser to pay the victim’s medical expenses. Elsasser appeals, challenging the restitution order and the denial of a motion for directed verdict of acquittal on the criminal damage to property charge. Because the trial court did not clearly err in imposing restitution and there was sufficient evidence to support the criminal damage to property verdict, we affirm.

1. “On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and [the] appellant no longer enjoys the presumption of innocence.” (Citation omitted.) Jordan v. State, 281 Ga. App. 419 (636 SE2d 151) (2006). We do not weigh the evidence or judge the credibility of witnesses, but determine only if there is sufficient evidence from which a rational trier of fact could have found the appellant guilty of the charged offense beyond a reasonable doubt. Self v. State, 288 Ga. App. 77, 77-78 (653 SE2d 787) (2007). We review the denial of a motion for directed verdict of acquittal under the same standard. Id. at 78; Jordan, supra.

So viewed, the evidence shows that on the night of September 27, 2008, Elsasser, accompanied by three other men, went to the home of Brad Prater to confront Prater about his accusations that Elsasser had committed a rape. As Elsasser and Prater talked, a fight ensued between the two men, during which Prater was hit and wrestled to the ground. Prater was kicked multiple times on the head and face, suffering a broken jaw and other injuries. Prater believed that more than one person was kicking him, but he could not see who was actually kicking him. Before Elsasser and the others left the scene, a piece of lumber was used to smash in three windows of a truck owned by Prater’s uncle.

Elsasser argues that the trial court erred in denying his motion for a directed verdict of acquittal as to the charge of criminal damage to property in the second degree because the state failed to introduce sufficient evidence of the amount of damage to the truck. The argument is without merit.

In order to sustain a conviction for criminal damage to property in the second degree, the State was required to offer probative evidence which would sufficiently allow the factfinder to conclude [that Elsasser] intentionally caused in excess of $500 damage to the property of another person without that person’s consent. One proper method for proving the value of the damage is evidence of the cost to repair the property.

(Citations and punctuation omitted.) Polite v. State, 273 Ga. App. 235, 237 (2) (614 SE2d 849) (2005). In this case, the owner of the truck testified that he paid to have his broken windows repaired and that he paid the amount shown on the repair bill. The bill for $780.15 was introduced into evidence, as were photographs of the damaged vehicle. The owner’s testimony that he paid the full amount of the repair bill “was from his own personal knowledge. He was not stating his opinion as to value but was stating a fact.” (Citation and punctuation omitted.) Id. “From this fact and from the photographs [and the repair bill], the jury had sufficient evidence to determine that the damage was in excess of [$500].” (Citations and punctuation omitted.) Holbrook v. State, 168 Ga. App. 380, 381 (1) (308 SE2d 869) (1983). Because there was sufficient evidence to support the jury’s verdict, the trial court did not err in denying the motion for a directed verdict of acquittal. See Leeks v. State, 281 Ga. App. 274, 275 (1) (635 SE2d 878) (2006) (sufficient evidence that damage to car exceeded $500 where victim testified cost of repairs was $946.74). Compare Johnson v. State, 156 Ga. App. 411, 412-413 (2) (274 SE2d 778) (1980) (truck owner’s opinion of the cost to replace broken windows insufficient where he had not obtained an estimate of the actual repair cost).

2. Elsasser contends that the trial court erred in ordering him to pay restitution for medical costs associated with Prater’s injuries. We disagree.

OCGA § 17-14-9 provides that the amount of restitution ordered shall not exceed the victim’s damages. For purposes of restitution, OCGA § 17-14-2 (2) defines damages as all damages which a victim could recover against an offender in a civil action based on the same act or acts for which the offender is sentenced.

(Citations, punctuation and emphasis omitted.) Zipperer v. State, 299 Ga. App. 792, 794 (2) (683 SE2d 865) (2009). In the instant case, Elsasser was convicted of simple battery for the attack on Prater. As OCGA § 16-5-23 (a) provides, and as the trial court charged the jury, a person commits the offense of simple battery when he intentionally makes physical contact of an insulting or provoking nature with the person of another or intentionally causes physical harm to another. Thus, the trial court was authorized to order Elsasser to pay restitution for damages caused by his simple battery of the victim. “[Plroximate cause is a question of fact for the factfinder. [Cit.] The trial court found as fact that the victim was injured by and has incurred costs as the result of [Elsasser’s] criminal behavior toward [him], and this finding is not clearly erroneous.” Dorsey v. State, 206 Ga. App. 709, 715 (8) (426 SE2d 224) (1992).

Elsasser’s reliance on Rider v. State, 210 Ga. App. 802, 803 (2) (437 SE2d 493) (1993), to argue that he cannot be held liable for any restitution because he was acquitted of aggravated battery, is misplaced. In Rider, the only injuries suffered by the victim resulted from gunshots inflicted by Rider’s co-defendant, who was convicted of aggravated assault while Rider was acquitted of that offense. Because Rider was acquitted of the specific acts which caused the victim’s injuries, we held that he could not be held responsible for damages arising out of those acts.

Although Elsasser was acquitted of aggravated battery, as recounted above, he was convicted of the lesser included offense of simple battery for the attack on Prater. Thus, unlike the defendant in Rider, Elsasser was not acquitted of all acts that caused the victim’s injuries. Even if, as Elsasser suggests, others at the scene may have also kicked the victim, that does not negate Elsasser’s liability for damages caused by his role in the attack since “[t]here can be more than one proximate cause of an injury[.]” (Citation omitted.) Dorsey, supra. Indeed, “[i]t is clear that the victim would be able to recover the amount of all medical treatment related to [Elsasser’s simple battery].” Crozier v. State, 233 Ga. App. 831, 832 (2) (506 SE2d 139) (1998).

Elsasser’s further argument that the trial court erred in failing to sua sponte consider OCGA § 51-12-33, concerning the apportionment of an award in a civil action, was not raised in the trial court and is an improper attempt to expand his enumerated errors. See Felix v. State, 271 Ga. 534, 539, n. 6 (523 SE2d 1) (1999) (“[A]n appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors. [Cits.]”). Furthermore, we note that restitution is a penalty to be determined by the court in a criminal case and is not synonymous with civil damages. Crozier, supra at 832 (2). The statutory framework for restitution in criminal cases is not found in the tort statutes, but is set forth in OCGA § 17-14-1 et seq., and the factors that a court must consider in determining the amount of restitution are found in OCGA § 17-14-10. Because it is undisputed that the trial court’s order of restitution for medical costs did not exceed the amount of costs incurred by the victim, the order was not erroneous. See OCGA § 17-14-9 (amount of restitution ordered maybe equal to or less than, but not more than, the victim’s damages).

Decided December 8, 2011

Reconsideration denied January 25, 2012

Kristin I. Patten, Mark A. Begnaud, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Kathleen J. Devine, Assistant District Attorney, for appellee.

3. We also find no error in the trial court allowing Elsasser to pay the full amount of restitution over the course of his entire probated sentence. Indeed, if an offender is placed on probation, ordered restitution shall be a condition of that probation, sentence or order. OCGA § 17-14-3 (b). Moreover, “sentencing judges [have] broad discretion in fashioning appropriate conditions of probation, tailored to the individual defendant’s circumstances as well as the interests of society and the victim. [Cit.]” Staley v. State, 233 Ga. App. 597, 598 (505 SE2d 491) (1998). Here, the trial court did not abuse that discretion since allowing Elsasser to pay the significant amount of restitution over the course of his probation was “a commonsense approach ... in view of the [admittedly] limited resources of the defendant.” Biddy v. State, 138 Ga. App. 4, 7 (4) (225 SE2d 448) (1976).

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A11A1628.
    In the Interest of D. H., a child.
    (722 SE2d 388)
   Andrews, Judge.

After D. H., a minor child, was adjudicated deprived by the Fulton County Juvenile Court in April 2009, the Court awarded temporary custody of the child to the Fulton County Department of Family and Children Services (DFCS) and subsequently approved a DFCS case plan prepared pursuant to OCGA § 15-11-58 to reunify the child with her mother; a concurrent permanency plan for reunification with the mother or placement with a relative; and temporary placement of the child with the maternal grandmother. The child’s mother appeals from two juvenile court orders entered in March 2011 pursuant to a permanency hearing under OCGA § 15-11-58 by which the Court terminated efforts to reunify the mother with the child and awarded long-term custody of the child to the maternal grandmother until the child’s eighteenth birthday. For the following reasons, we reverse and remand.

At a review hearing conducted by the juvenile court in May 2010 pursuant to OCGA § 15-11-58, the Court entered an order finding that the deprived child would remain in the temporary custody of DFCS and placed with the maternal grandmother, and that the permanency plan remained reunification or placement with a relative. In the May 2010 order, the Court also denied two DFCS motions filed in February 2010 seeking (1) to terminate reunification services and (2) to grant long-term custody of the child to the maternal grandmother until the child’s eighteenth birthday. At another review hearing held in September 2010, the juvenile court found that the deprived child would remain in DFCS custody and placed with the maternal grandmother; that the mother was without adequate housing and employment; and that the permanency plan remained reunification or placement with a relative. The juvenile court also stated in the September 2010 order: “If the mother had not obtained housing and employment before the [next annual] permanency hearing in January 2011, [the Court] would consider a Petition to Modify Custody to the maternal grandmother.”

At the January 2011 permanency hearing, the mother was present and represented by counsel. The DFCS case manager testified at the hearing that the deprived child had been placed with the maternal grandmother since June 2009; that the mother visits daily with the child; that the mother had largely complied with reunification case plan requirements; and that goals on the case plan were “acquiring sufficient income and a place to live.” As to those goals, the case manager testified that the mother had income from SSI benefits for her other children and that the maternal grandmother had agreed to allow the mother to live with her in the grandmother’s house that was large enough to accommodate the grandmother, the mother, and all the children. Accordingly, the case manager testified that the mother had satisfied the DFCS case plan criteria for having income and a place to live; that the child was ready to be returned to the legal custody of the mother; and that the DFCS proposed permanency plan was to return legal custody of the child to the mother. In response to questions posed by the juvenile court, the case manager testified that the mother did not currently have her own housing and was not currently employed. The Child Advocate was present at the hearing and concurred in the DFCS recommendation.

In its ruling at the permanency hearing, the juvenile court referred to the order it entered after the September 2010 review hearing and stated that, in the prior order, the Court had found that “if the mother had not obtained housing and employment before the permanency hearing in January 2011, [the Court] would consider a petition to modify custody to [the] maternal grandmother.” Based on that statement, the Court announced that it was reconsidering the two prior DFCS motions filed in February 2010 that the Court denied in its May 2010 order: (1) a motion to terminate reunification services and (2) a motion to grant long-term custody of the child to the maternal grandmother until the child’s eighteenth birthday. At that point, the Child Advocate informed the Court that, based on her conversations with the maternal grandmother, the grandmother did not want to accept custody of the child. Nevertheless, the Court orally granted both previously denied motions. Pursuant to this ruling, the juvenile court subsequently entered two written orders in March 2011. In the first order, the Court stated that it was vacating the portion of its May 2010 order denying the DFCS motion to terminate reunification services and was now granting that motion. This order further found that, because the mother had not obtained sufficient housing for herself and the child, reunification services were terminated and the child would remain in the temporary custody of DFCS. In the second order, the Court found that reunification services had been terminated; that termination of parental rights was not in the best interest of the child because of placement with the maternal grandmother; and that the grandmother was an appropriate custodian and willing to care for the child. In this order, the Court stated that, upon reconsideration of the prior DFCS motion denied by the Court in May 2010 seeking the award of long-term custody of the child to the maternal grandmother, the Court was now granting the previously denied motion and pursuant to OCGA § 15-11-58 (i) was awarding the maternal grandmother long-term custody of the child until the child’s eighteenth birthday.

1. The mother contends that the juvenile court orders terminating reunification services and awarding long-term custody of the child to the maternal grandmother must be reversed because she did not receive proper notice. The mother, who was present and represented by counsel at the permanency hearing, does not claim that she was not notified of the hearing and the right to be heard at the hearing pursuant to OCGA § 15-11-58 (p), or that she did not receive a copy of the DFCS report including the proposed permanency plan prior to the hearing (OCGA § 15-11-58 (o)), or that she was not advised that the DFCS permanency plan recommending that the child be returned to her custody would be “submitted to the court for consideration to become an order of the court.” OCGA § 15-11-58 (o) (4). Rather, she contends that, because no DFCS report or new motion was submitted to the Court prior to the permanency hearing requesting termination of reunification services and the award of long-term custody to the maternal grandmother, she was not properly notified that these issues would be considered at the hearing, and that the Court’s orders terminating reunification services and awarding long-term custody must be reversed.

Prior to a permanency hearing, DFCS

shall submit for the court’s consideration a report recommending a permanency plan for the child which shall include whether and, if applicable, when the child shall be returned to the parent or parents; referred for termination of parental rights and adoption; referred for legal guardianship; placed permanently with a fit and willing relative; or, in the case where the division has provided a compelling reason that none of the foregoing options would be in the best interest of the child, placed in another planned permanent living arrangement.

OCGA § 15-11-58 (o) (2). After hearing evidence, the juvenile court shall “enter a supplemental order incorporating all elements of the proposed permanency plan required by paragraphs (5) and (6) of [subsection (o)] that the court finds essential in the proposed permanency plan.” OCGA § 15-11-58 (o) (3) (B). Although this language contemplates that the Court may approve and incorporate in its order essential elements of a DFCS proposed permanency plan, paragraphs (1) through (5) of OCGA § 15-11-58 (o) make clear that the Court may, based on the evidence, reject the proposed plan. Paragraphs (1) through (5) of OCGA § 15-11-58 (o) each state that “[t]he provisions of subsection (p) of [OCGA § 15-11-58] concerning notice, opportunity to be heard, authority of the court, and content of the court’s order are applicable to proceedings under this paragraph.” In relevant part, OCGA § 15-11-58 (p) provides:

... At each such review, hearing, or proceeding, the court in its discretion, based upon the evidence, may enter an order accepting or rejecting any report of the Division of Family and Children Services of the Department of Human Services, ordering an additional evaluation, appointing a guardian ad litem, or undertaking such other review as it deems necessary and appropriate to determine the disposition that is in the child’s best interest. ...

Moreover, OCGA § 15-11-58 (o) (5) provides with respect to the Court’s order after a permanency hearing:

... If the court finds that there is a compelling reason that it would not be in the child’s best interests to be returned to the parent or parents, referred for termination of parental rights and adoption, referred for legal guardianship, or placed permanently with a fit and willing relative, then the court’s order shall document the compelling reason and provide that the child should be placed in another planned permanent living arrangement. . . .

Under these provisions, the juvenile court may approve or reject a DFCS proposed permanency plan under consideration at a permanency hearing, and may enter an order based on sufficient evidence which includes termination of reunification services and custody of the child. We find no merit to the mother’s contention that, before the juvenile court could consider and rule on termination of reunification and custody issues at the permanency hearing, she was entitled to prior notice by report or motion that DFCS would seek termination of reunification services and the award of long-term custody at the hearing.

2. The mother contends that the evidence was not sufficient to support the juvenile court’s order terminating reunification services.

The basis for the juvenile court’s order terminating reunification services was that the mother did not have sufficient housing for herself and the child. The Court found that the mother had satisfied most requirements of the reunification plan and was receiving income from SSI benefits for her other two children. As to housing, the Court found that the mother had vacated her previous apartment because of mold and mildew issues, and that, while she was seeking appropriate housing for herself and her children, she was currently residing with family members where she may be able to continue to reside. The Court also found that the maternal grandmother, with whom the child is placed, was willing to allow the mother and her other children to reside with her. Moreover, the Court found that the mother visited with the child and that the child had bonded with the mother and the maternal grandmother. As set forth above, the DFCS case manager testified that the maternal grandmother’s house was large enough to accommodate the mother and all the children. The case manager also explained that, after the mother was forced to move from her own apartment by mold and mildew issues, she was put on a waiting list for government-assisted housing.

To terminate reunification services, the juvenile court was required to find by clear and convincing evidence that efforts to reunify the child with the mother will be detrimental to the child. OCGA § 15-11-58 (h); In the Interest of T. S., 310 Ga. App. 100, 103 (712 SE2d 121) (2011). In reviewing the Court’s ruling on appeal, we view the evidence in the light most favorable to the Court’s judgment “to determine whether any rational trier of fact could have found by clear and convincing evidence that reasonable efforts to reunify the [child] with [the mother] would be detrimental [to the child] and therefore reunification services should be terminated.” (Citation and punctuation omitted.) Id. There is a rebuttable presumption that reunification services should not be provided or should be terminated if the court finds by clear and convincing evidence that. . . “[t]he parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family.” OCGA § 15-11-58 (h) (1); In the Interest of T. L., 285 Ga. App. 526, 528 (646 SE2d 728) (2007).

The juvenile court’s order terminating reunification services as detrimental to the child was based solely on the Court’s finding that, at the time of the permanency hearing, the mother did not have her own housing for herself and the child and that adequate housing was a requirement of a previously ordered plan designed to reunite the family. Evidence showed that the mother lost her own housing due to mold and mildew issues, and that, while she was on a waiting list for government-assisted housing, she secured housing with relatives, and that the maternal grandmother, with whom the child was placed, offered adequate housing to the mother and the child. The DFCS case manager found this sufficient to show that the mother had secured viable housing for the child. Other evidence showed that the child was bonded with the mother, and the DFCS case manager testified that the mother visited and provided care for the child on a daily basis. Even though the mother did not have her own housing at the time of the permanency hearing, the evidence was not clear and convincing that she unjustifiably failed to comply with the housing requirements of the DFCS-prepared reunification plan, or that, under the circumstances, continued reunification efforts would be detrimental to the child.

Accordingly, we reverse the juvenile court’s order terminating reunification services and remand the case to the juvenile court to consider whether a reunification plan is appropriate in light of events occurring since the last permanency hearing. In the Interest of S. L. E., 280 Ga. App. 145, 151 (633 SE2d 454) (2006).

3. An order finding that reasonable efforts to reunify the child with the mother would be detrimental to the child and should be terminated was a prerequisite to the juvenile court’s custody order awarding long-term custody of the child pursuant to OCGA § 15-11-58 (i). In light of the holding in Division 2, supra, it follows that the Court’s order awarding custody of the child to the maternal grandmother until the child’s eighteenth birthday must also be reversed. We remand the case to the juvenile court to consider whether in light of events occurring since the last permanency hearing the child should remain in the temporary custody of the maternal grandmother or whether some other disposition is in the best interest of the child.

Decided January 25, 2012.

Stephanie V. Iacobucci, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Collins, Gordon & Henry, William F. Collins, Renia Clay, for appellee.

Judgment reversed and case remanded.

Phipps, P. J., and McFadden, J., concur.

       Although the juvenile court stated that it was ruling on a previously denied DFCS motion for termination of reunification services (by means of vacating the Court’s May 2010 denial order) we need not consider the mother’s claim that this procedural device was inappropriate. We find that, in substance, the Court’s ruling was based on its consideration and rejection of the DFCS proposed permanency plan and on the evidence presented at the permanency hearing.


author: Dillard, Judge.

text:
    A11A1674.
    HALL v. THE STATE.
    (722 SE2d 392)
   Dillard, Judge.

On January 27, 2010, Robert Hall pleaded guilty to one count of burglary. Nearly one month later, Hall filed a motion to withdraw his guilty plea, which the trial court denied. Hall now appeals the denial of his motion to withdraw his guilty plea, arguing that his plea counsel rendered ineffective assistance by failing to adequately advise him regarding the possible duration of his sentence in light of his ineligibility for parole. For the reasons set forth infra, we affirm.

The record shows that around 9:00 a.m. on January 8, 2009, Daniella and Rebecca Gutierrez were at their rural home alone—after their parents had gone to work—when they saw an unfamiliar man on their porch, knocking on the front door. Daniella immediately telephoned her mother and asked if anyone was supposed to be coming over to the house. Her mother responded “no,” but when Daniella saw the man get into a white truck and appear to leave, she told her mother that everything was fine. However, shortly thereafter, the truck backed into the driveway and up to the porch, and a few moments later, Daniella heard someone entering the home through a window. Rushing into her sister’s bedroom, Daniella locked the door and frantically called her mother back to tell her that someone was breaking into the house. Daniella’s mother then called the police, as well as Daniella’s grandmother, who lived just a few miles down the road.

Within a few minutes, Daniella’s grandmother arrived on the scene, entered the house armed with a gun, and yelled for the intruders to come out. Two men then walked out of the master bedroom, exited the house as Daniella’s grandmother ordered, and quickly escaped in the white truck that had been parked in the driveway. But before the truck could speed away, Daniella’s grandmother was able to get a partial license tag number, which she relayed to the police. Thereafter, Daniella’s grandmother identified Hall as one of the intruders she confronted in her daughter’s home, and she also identified Hall’s truck as the vehicle in which Hall and the unidentified second intruder fled.

Hall was thereafter indicted on one count of burglary, and he initially entered a plea of not guilty. Several months later, the State filed a notice of its intent to have Hall sentenced as a recidivist under OCGA § 17-10-7 based on numerous past convictions, including several past burglary convictions. On January 27, 2010, during a hearing on the day his trial was scheduled to begin, Hall indicated that he wanted to plead guilty. Subsequently, the trial court explained to Hall the rights that he was waiving by pleading guilty and that based on his past convictions, the court could impose a sentence of up to 20 years. Hall responded that he understood, entered a nonnegotiated guilty plea to the charge of burglary, and the trial court then imposed a sentence of 20 years with 15 to serve.

On February 26, 2010, however, Hall filed a pro se motion to withdraw his guilty plea. Thereafter, he was appointed new counsel, who filed an amended motion to withdraw Hall’s guilty plea on July 26, 2010, alleging, inter alia, that Hall’s plea counsel provided ineffective assistance. After conducting a hearing on the matter, the trial court denied Hall’s motion. This appeal follows.

1. Hall contends that the trial court erred in denying his motion to withdraw his guilty plea, arguing that his plea counsel rendered ineffective assistance by failing to adequately advise him regarding the possible duration of his sentence based on his ineligibility for parole. Nevertheless, we begin by noting that procedural grounds supported the trial court’s denial of Hall’s motion to withdraw.

As our Supreme Court has explained, “[i]t is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.” And here, Hall pleaded guilty and was sentenced on January 27, 2010, but he did not file his initial pro se motion to withdraw his guilty plea until February 26, 2010. This sequence of events matters because, pursuant to OCGA § 15-6-3 (39) (A), the terms for the Superior Court of Irwin County commence on the “[s]econd Monday in February and second Monday in August.” Thus, Hall filed his motion approximately three weeks beyond the term of court (which ended on February 5, 2010) in which he was sentenced. Accordingly, the trial court did not have jurisdiction to entertain Hall’s motion to withdraw his guilty plea, and therefore, did not err in denying it. At this point in time, Hall’s only available means to withdraw his guilty plea is through habeas corpus proceedings.

2. Moreover, Hall’s claim of error also fails on its merits. In considering this argument, we begin by noting that while a guilty plea may be withdrawn at any time before sentencing, “once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice, and the trial court’s refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion.” Moreover, a criminal defendant who seeks to withdraw his guilty plea due to ineffective assistance of counsel “must meet the now familiar two-part test of Strickland v. Washington—deficient performance and prejudice.” Specifically,

[a] defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

And in evaluating an attorney’s performance for the purpose of determining the first prong of the Strickland test, “there is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” With these guiding principles in mind, we will now address Hall’s contention.

Decided January 25, 2012.

Metis & Nugent, Marc G. Metis, for appellant.

Specifically, Hall claims that prior to a probation revocation hearing that was held following his arrest, the State offered to recommend a sentence of 12 to 18 months if he agreed to plead guilty to the current burglary charge. Hall argues that if his plea counsel had properly informed him that based on his past convictions he was possibly facing a lengthy sentence during which he would not be eligible for parole, he would have accepted the State’s initial plea offer instead of entering into the later nonnegotiated guilty plea.

The only evidence of the 12- to 18-month plea offer was Hall’s own testimony during his guilty plea hearing and the hearing on his motion to withdraw his guilty plea and a letter from the public defender initially appointed to defend him (which was read during the motion-to-withdraw hearing). And while it is difficult to discern from the record, it appears that such a plea offer may have been conveyed and then revoked when Hall opted to go forward with a hearing on his probation revocation. But regardless of whether such a plea offer was ever made, Hall’s argument still fails. Indeed, as our Supreme Court has emphasized,

eligibility or ineligibility for parole is not a consequence of a plea of guilty, but a matter of legislative grace or a consequence of the withholding of legislative grace [, and t]here is no constitutional requirement that a defendant be advised of such collateral consequences in order for his guilty plea to be valid.

Thus, Hall’s counsel was not required to inform Hall that he could face a sentence without parole if he rejected the initial plea offer. Accordingly, the trial court did not err in finding that Hall failed to show that his plea counsel rendered ineffective assistance.

Judgment affirmed.

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

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

       The truck was registered to Hall, who was subsequently arrested.

        See OCGA § 16-7-1 (a).

        Rice v. State, 277 Ga. 649, 649 (594 SE2d 335) (2004).

        See OCGA § 15-6-3 (39) (A).

        See Williams v. State, 301 Ga. App. 849, 851 (1) (689 SE2d 124) (2010) (holding that trial court lacked jurisdiction to consider defendant’s motion to withdraw guilty plea filed beyond term of court in which defendant was sentenced); Maples v. State, 293 Ga. App. 232, 233 (1) (666 SE2d 609) (2008) (same).

        See Rice, 277 Ga. 649; Williams, 301 Ga. App. at 850-51 (1).

        Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011) (citation and punctuation omitted).

        Murray v. State, 307 Ga. App. 621, 623-24 (705 SE2d 726) (2011) (footnote and punctuation omitted); see also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Rios v. State, 281 Ga. 181, 181 (2) (637 SE2d 20) (2006) (punctuation omitted).

       Murray, 307 Ga. App. at 624 (punctuation omitted).

        Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999) (citations and punctuation omitted).

        See id. at 582 (1) (holding that counsel’s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance).


author: Ellington, Chief Judge.

text:
    A11A1981.
    BILLINGTON v. THE STATE.
    (722 SE2d 395)
   Ellington, Chief Judge.

A Cobb County jury found Ronald Billington guilty beyond a reasonable doubt of aggravated assault, OCGA § 16-5-21 (a) (2) (with an offensive weapon). He appeals from the denial of his motion for new trial, contending that the trial court erred in rejecting his claim that his trial counsel provided ineffective assistance. For the following reasons, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence showed the following facts. Billington and the victim have known each other since 1994, when they started a tumultuous relationship that was punctuated with numerous acts of violence committed by Billington against the victim, episodes that sometimes required the intervention of the police and the courts. After the relationship ended in 1997, the two rarely had contact with one another until 2006, when Billington, who had fallen on hard times, asked the victim for help. In addition to providing other assistance, the victim secured a bank loan in January 2007 to buy a 2003 Monte Carlo so Billington could drive to work. Billington paid a $3,000 down payment on the car and promised to pay off the loan, while the victim remained the car’s registered owner. By June 2008, however, Billington was behind in the payments, and the victim feared that the bank was going to repossess the Monte Carlo. After Billington refused to make any more payments on the Monte Carlo or to return the car to the victim so she could sell it, the victim decided to repossess the car herself, sell it, and pay off the bank loan.

At approximately 7:30 p.m. on November 14, 2008, the victim and her brother went to the place where Billington was living, which was located near Highway 41 in Cobb County. Their intention was to avoid a confrontation with Billington by waiting until he was out of sight and then to use the victim’s spare key to take the Monte Carlo. They waited until they could not see Billington, but, when they approached the car, he saw them and refused to let them leave with the car. After Billington climbed into the driver’s seat, started the car, and tried to drive away, the victim climbed on top of him, put her foot on the brake, and tried to wrestle the key out of the ignition. While they were wrestling over the key, the victim’s brother climbed through the passenger side door and tried to shift the car into parking gear. He also called 911 on his cell phone, contemporaneously described the events that followed to the operator, and, later, gave the operator the Monte Carlo’s tag number. An audiotape of the 911 call was played for the jury without objection.

When they learned that police officers were on the way, the three of them briefly calmed down, and the victim walked to the front of the Monte Carlo and waited, facing Billington. According to the victim and her brother, Billington suddenly accelerated the car and hit the victim’s legs, causing her to be thrown onto the car’s hood. The victim then hung onto the car’s windshield wipers to keep from falling off while Billington alternately accelerated and braked, trying to “sling” her off of the car. With the victim still clinging to the car, Billington drove out of the parking lot, ran a stop sign, and accelerated toward Highway 41. When traffic prevented Billington from entering the highway without stopping, the victim let go and rolled off the car’s hood. Although she was “hurting like crazy,” the victim limped back to the parking lot while Billington sped away in the Monte Carlo.

A police officer arrived a few minutes later and interviewed the victim and her brother. The officer noticed that the victim was noticeably shaken, her pants were dirty and wet, her legs were red, and she was limping and appeared to be injured. The officer testified that he was unable to question Billington because he was no longer at the scene and that the five other people in the area at that time told him that they had not seen an altercation. According to the victim’s brother, all of the people who were in the parking lot when the incident occurred had left by the time the officer arrived.

Billington was subsequently arrested and charged with committing aggravated assault with an offensive weapon, i.e., the Monte Carlo. At trial, his primary defense was that he never hit the victim with the car and that, instead, she was a manipulative person who had fabricated her allegations. During both opening statements and closing arguments, defense counsel asserted that the victim was trying to use the judicial system to punish Billington; that she had voluntarily climbed onto the hood of the car to prevent Billington from leaving the parking lot; and that any injuries she suffered that night were not caused by him, but were incurred when she negligently decided to cross an uneven ditch at night while walking back to the parking lot after she had climbed off the Monte Carlo.

1. On appeal, Billington contends that he received ineffective assistance of trial counsel when his counsel failed to object to the opinion testimony of the police officer on the basis that it bolstered the credibility of the alleged victim and invaded the province of the jury by addressing the ultimate issue to be decided at trial.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001).

The testimony at issue in this case was elicited during the direct examination of the police officer:

State: Based on your observations and your investigation at the scene, were you able to determine how [the victim] sustained her injuries?
Officer: Yes, ma’am, based on the witness statements and the appearance of the [victim’s] clothing, I determined that [the victim] was struck in the legs by the blue Monte Carlo.

The transcript also shows that, during cross-examination, defense counsel twice elicited the officer’s admission that the only information he had about the incident was provided by the victim and her brother. The officer then agreed with counsel’s suggestion that it was possible that the five other people the officer had questioned at the scene had not witnessed an altercation because no altercation had, in fact, occurred. In addition, the officer admitted that people have, in the past, lied to him during his investigations and that it was possible that the victim in this case had “faked” her injuries. Finally, the officer admitted that it was possible that Billington had not caused the victim’s injuries, but, instead, she had injured herself by walking through a nearby uneven, grassy ditch at night. On re-direct, however, the officer testified that the victim’s injuries were consistent with the events she and her brother had described to him and that he had no reason to believe that either of them had fabricated the information they had provided. Ultimately, at the end of the officer’s testimony, the trial court instructed the jury that, generally, a witness cannot testify that another witness is telling the truth or is not telling the truth, adding that it was their job to decide witness credibility.

During the hearing on Billington’s motion for new trial, trial counsel testified that he did not object to the officer’s statements because the officer was not an expert witness and because he believed he would be able to attack the officer’s testimony very effectively during cross-examination. Counsel explained that he had previously cross-examined the officer at the probable cause hearing and knew that the officer was relatively inexperienced at the time of the incident, had done no independent investigation of the incident, and had relied completely on what the victim and her brother had told him in reaching his conclusion about the cause of the victim’s injuries. Further, counsel opined that, because the officer was not an expert witness, his conclusory statement did not carry much impact with the jury and did not contribute to the verdict in this case. In fact, counsel testified that he had exceeded what he had hoped to accomplish during his cross-examination of the officer at trial.

Thus, counsel’s hearing testimony supports a finding that his failure to object to the officer’s conclusory statement was the result of a reasonable strategic decision, not deficient performance. “Not objecting to testimony[,] but instead subjecting it to cross-examination[,] may be part of a reasonable trial strategy.” (Citation and punctuation omitted.) Word v. State, 308 Ga. App. 639, 642 (708 SE2d 623) (2011). See Warbington v. State, 281 Ga. 464, 466 (2) (b) (640 SE2d 11) (2007) (Trial counsel’s strategic decision not to object to the statements at issue because he did not want to emphasize them and he did not believe they were influencing the jury did not amount to ineffective assistance of counsel.); Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008). As a result, Billington has failed to meet his burden of proving this ineffective assistance claim. Watkins v. State, 289 Ga. 359, 362 (3) (711 SE2d 655) (2011) (In examining a claim of ineffective assistance, this Court “need not address both components of the inquiry if the defendant makes an insufficient showing on one.”) (citation and punctuation omitted).

2. Billington also claims that counsel was ineffective for failing to object to numerous statements by the victim that exceeded permissible “prior difficulties” evidence and impermissibly commented on his character. Specifically, he argues that the victim was allowed to testify, without objection, regarding his excessive alcohol consumption and his treatment for alcohol addiction; regarding his “questionable mental status”; that he had argued with police and was arrested following a domestic dispute in 1995; that, in June 2008, he possessed a loaded gun and had threatened to commit suicide; and that he “got out of jail in August [2008].”

Although evidence of the general character of the defendant, including his conduct in other transactions, is usually irrelevant and inadmissible,

[ejvidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

(Citations and punctuation omitted.) Stallworth v. State, 303 Ga. App. 767, 769 (695 SE2d 276) (2010). See also Hampton v. State, 300 Ga. App. 49 (1) (684 SE2d 118) (2009) (“It is the general rule that if evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.”) (citation and punctuation omitted).

(a) As an initial matter, the record shows that, before trial, defense counsel filed four motions in limine to exclude evidence that there had been prior difficulties between the parties, that Billington had been arrested in August 2008 on charges that involved the victim, that there was an existing restraining order against him prohibiting any contact with the victim, that he possessed a loaded handgun, and that he had mental problems and had threatened to commit suicide. Immediately prior to trial, the court conducted a hearing on the motions, and it excluded evidence of Billington’s 2008 arrest and the restraining order, but admitted the remaining evidence.

“Normally, when a defendant moves in limine for the exclusion of evidence and the trial court, on the record, rules the evidence admissible, the record is preserved and the defendant is not required to object to the evidence during trial.” (Citation and punctuation omitted.) Hampton v. State, 300 Ga. App. at 50-51 (1). Therefore, Billington’s counsel did not have to contemporaneously object to the evidence of the prior difficulties, the loaded handgun, his mental status, or his suicide threat in order to preserve the issues for appeal. Id. Consequently, counsel was not ineffective for failing to raise these objections during trial.

(b) As to whether counsel improperly failed to object to the victim’s testimony about Billington’s excessive alcohol consumption, his treatment for alcohol addiction, his mental health problems, his suicide threat, his possession of the handgun, or the 1995 incident in which he argued with the police and was arrested, the trial transcript shows that the evidence was part of the res gestae of the numerous incidents of prior difficulties between the parties. The victim also testified that Billington’s alcohol abuse caused or contributed to the domestic violence episodes that were instigated by Billington, including the 1995 incident, and that it was the primary reason their relationship ended in 1997. Thus, the evidence was relevant and admissible, even if it incidentally placed Billington’s character in issue. See Jones v. State, 283 Ga. App. 812, 813-814 (1) (642 SE2d 887) (2007) (A defendant’s prior substance abuse is admissible as prior difficulties testimony when it explains the friction in the relationship between the victim and the defendant that led to the crime.); see also Hampton v. State, 300 Ga. App. at 49 (1). Consequently, an objection to the evidence would have been futile, and the failure to make a meritless objection to the admission of certain evidence does not constitute deficient performance of counsel. Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010).

(c) Finally, the record shows that counsel made a conscious, strategic decision not to object to the evidence at issue after he repeatedly and thoroughly consulted with Billington and they jointly developed a mutually agreeable trial strategy. At the hearing on the motion for new trial, trial counsel specifically testified that he and Billington had communicated very well before and during trial and had decided on a defense that was different from most domestic violence cases. As counsel explained,

Typically, in a domestic violence case, you don’t want the jury to know about any prior[ ] [difficulties]. And this particular case was very different because the alleged victim had worked up here at the [superior court] clerk’s office. She knew judges. She knew lawyers. She was very intimately familiar with the court process. And as Mr. Billing-ton would relay information to me, I would go check it out. We met about eight times or so, according to my notes. He wrote me a number of letters, ten or [eleven] letters. And what we decided was, rather than try to hide the past, we would embrace the past because what occurred on a regular basis was [the victim] would file an accusation, she would make a claim against Mr. Billington and then not show up for court, or she would sign an affidavit, or she would make a phone call trying to drop [the] charges. And so what we decided to do was to paint her for really what she is, and that is, a very manipulative person, who used the court system to manipulate Mr. Billington and to get over on him. That was our defense. That was our theory of the case.

Counsel added that another aspect of their defense was to dispute the victim’s claim that Billington had hit her with the car by arguing that the victim voluntarily climbed onto the hood to try to prevent him from taking the car. In support of that theory, counsel relied on the recording of the 911 call, the testimony of the victim’s brother and the officer, and certain demonstrative evidence, all of which, in his opinion, conflicted to some extent with the victim’s version of events. In addition, counsel stressed that he and Billington had agreed to let the victim talk uninterrupted at trial, knowing that “she would talk herself into a hole; that if you give her enough rope, she’ll hang herself.” According to counsel, this strategy was effective because the victim’s testimony “seemed to be very exaggerated. It seemed to be very immature,” and many of the things the victim testified about made her look like “an angry, bitter person bent on revenge.”

Moreover, during the motion hearing, counsel specifically addressed the evidence of Billington’s alcohol abuse and treatment, stating that, when testifying, the victim “came across as being very unbelievable” and “very disorganized,” and appeared to be a very bitter, angry, vengeful person. Counsel said that he did not object because he did not want to highlight the testimony and because he and Billington had decided to be “open and honest” about his alcohol abuse, explaining that

part of the Ron Billington story . . . [was that] he used to have an alcohol problem, and I anticipated, if he took the stand, he would’ve testified that he had had an alcohol problem, that all the problems back with [the victim] so many years before had been because of that alcohol problem; that he had sought treatment, gone through rehab, and everything was changed, and that alcohol was no longer a part of his life. . . . [H]e was able to beat alcohol and that’s something he’s proud of.

According to counsel, until the State had rested its case, it was unclear whether Billington would testify, so “if I had objected when [the victim talked about his alcohol problem or treatment,] but then put Mr. Billington up later and he had said the same thing or something similar, then I felt like that could’ve looked negative . . . for him.”

As for the evidence that Billington had argued with the police and was arrested in the 1995 incident, counsel testified that he and Billington were not worried about that evidence because the case was dismissed after the victim failed to pursue it, so “it was just another example of her just trying to get Mr. Billington in trouble.”

Finally, as to the victim’s reference to Billington’s August 2008 release from jail, counsel explained that he did not object for three reasons: if Billington had testified, he would have testified about the incident; if the victim’s parents had testified, the fact of Billington’s 2008 arrest and incarceration might have come out anyway during their testimony; and because he did not want to highlight the fact by objecting to it.

At the end of the motion for new trial hearing, the trial court ruled that Billington had failed to meet his burden of showing that his trial counsel’s performance had been deficient, because, even though certain evidence had been introduced that might not have been admissible under other circumstances, the trial proceedings were consistent with the trial strategy that Billington and his counsel had followed from the beginning of trial. The record supports the court’s conclusion.

Decided January 25, 2012.

H. Maddox Kilgore, for appellant.

Patrick H. Head, District Attorney, Lynne G. Voelker, Anna G. Cross, Assistant District Attorneys, for appellee.

Moreover, the trial court was authorized to conclude that the trial strategy devised by Billington and his counsel was not patently unreasonable under the circumstances presented. “Substantial latitude is given during judicial review of tried counsel’s decisions regarding trial strategy.” (Punctuation and footnote omitted.) Moss v. State, 278 Ga. App. 362, 365 (2) (a) (629 SE2d 5) (2006). Decisions based on counsel’s reasonable trial strategy, including what objections to make, do not constitute deficient performance. Id.; Warbington v. State, 281 Ga. at 466 (2) (b); Gregoire v. State, 309 Ga. App. 309, 311 (2) (711 SE2d 306) (2011) (“Trial tactics and strategy . . . are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”) (citation and punctuation omitted). Further, “this [C]ourt does not evaluate trial counsel’s tactics and strategic decisions in hindsight.” (Punctuation and footnote omitted.) Battise v. State, 309 Ga. App. 835, 836 (2) (711 SE2d 390) (2011). The fact that Billington and his appellate counsel now disagree with the difficult decisions that were made regarding trial tactics and strategy does not require a finding that Billington received deficient representation amounting to ineffective assistance of counsel. Warbington v. State, 281 Ga. at 466 (2) (a); Espinosa v. State, 309 Ga. App. 877, 880 (2) (711 SE2d 425) (2011).

Judgment affirmed.

Doyle, E J., and Miller, J., concur.

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

       “[A] witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury.” (Citation and punctuation omitted.) Word v. State, 308 Ga. App. 639, 642 (708 SE2d 623) (2011).

       Later, during re-direct, the officer repeated his conclusion, testifying that, although he did not measure the distances that Billington had allegedly traveled with the victim on the car’s hood, the lack of such details did not “take[ ] away from the fact that [the victim] was struck by a vehicle.” Again, defense counsel did not object.

       The court’s jury charge also included, inter alia, instructions regarding the jury’s role in judging the credibility of witnesses, resolving conflicts in the evidence, and determining whether a witness has been impeached.

       See also Gregoire v. State, 309 Ga. App. 309, 312-313 (2) (711 SE2d 306) (2011) (“This [C]ourt has reversed convictions in cases where trial counsel failed to object to bolstering testimony, but not when counsel testified reasonably and consistently about the strategic basis for not objecting.” This Court emphasized that “these cases are very fact-intensive, which is why we do not substitute our judgment for the trial court’s unless the court’s decision has no objective support in the record.”) (footnotes omitted).

       OCGA § 24-2-2.

       Billington does not allege on appeal that the trial court improperly admitted the evidence of prior difficulties between the parties. Further, the record shows that, during the victim’s testimony, the trial court gave a limiting instruction to the jury regarding their consideration of the evidence of the prior difficulties.

       The court’s conclusion is not only supported by counsel’s testimony at the motion for new trial hearing, but also by the trial transcript, which shows that, after the victim had given the challenged testimony on direct, the court asked Billington, outside the presence of the jury, whether he was satisfied with counsel’s representation. Billington responded, “Absolutely.” The court also asked him if he had any concerns that he would like to express regarding his case or his representation, and Billington responded, “Not at this point.” The court repeated the questions after the jury began deliberating, and Billington again responded that he was satisfied with counsel’s representations and had no concerns that he wanted to discuss with the court.


text:
    A11A2087.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al. v. DATA INQUIRY, LLC.
    (722 SE2d 403)
   Ellington, Chief Judge.

The Georgia Department of Community Health (“the Department”) appeals from an order of the Superior Court of Fulton County that denied its motion to dismiss a complaint filed by Data Inquiry, LLC. According to the Department, the trial court erred in finding that Data Inquiry’s claims were not barred by sovereign immunity. For the following reasons, we agree and reverse.

“On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in [the plaintiffs] favor.” (Citations, punctuation and footnote omitted.) Liu v. Boyd, 294 Ga. App. 224 (668 SE2d 843) (2008).

So viewed, the record shows the following facts. In October 2007, Data Inquiry began negotiating a “Professional Services Agreement” (“the proposed agreement”) with Grace Lewis, a senior assistant attorney general for the State of Georgia, who was representing the Department. Under the proposed agreement, which was drafted by a Data Inquiry manager, Brian Carne, Data Inquiry was to provide various computer-related services, including collecting electronic data, at the offices of a third party that was involved in a civil suit with the Department (“the third party”). The proposed agreement provided that, “[sjubject to [Data Inquiry] and Client approval, all services shall be rendered at such times and places as Client may request, and for a mutually agreeable period of time.” It also stated as follows:

This contract shall become effective upon execution by both Client and [Data Inquiry], but only after receipt by [Data Inquiry] of any required retainer[.] . . . Failure to pay any required retainer will immediately render this contract null and void[.] . . . Client agrees to furnish [Data Inquiry] forthwith a retainer fee of $15,000 against which any billable services as outlined herein are to be deducted[.]

In addition, the proposed agreement stated that

[t]his Contract, which each party acknowledges receipt of a complete copy, represents the entire agreement between [Data Inquiry] and Client, and it supersedes all prior written or oral communications or agreements between the parties. . . . There are no collateral agreements, stipulations, covenants, promises, inducements, or undertakings not expressed herein. . . . [This Contract] may not be modified except by a written document agreed to and signed by both [Data Inquiry] and Client that clearly indicates that such secondary written document is intended to modify this Contract in some specified manner.

Further, under the proposed agreement, before any Data Inquiry employee performed work under the agreement, he or she would have to sign a document entitled “Declaration and Agreement to be Bound,” in which he or she expressly agreed to abide by a separate document, a “Consent Protective Order” (“the protective order”), which, in turn, was to be executed by the Department and the third party and which contained no references to Data Inquiry.

On November 12, 2007, Data Inquiry employees began working pursuant to the proposed agreement, even though the Department had not yet sent it a signed copy of the proposed agreement or the $15,000 retainer required thereunder. Upon completing its work, Data Inquiry sent the Department an invoice for $25,066.96 for services provided and expenses incurred.

When the Department refused to pay the invoice, Data Inquiry filed a complaint against it for the alternative claims of breach of contract, unjust enrichment, and quantum meruit. The Department answered and raised the defense that the action was barred by sovereign immunity because it was not based upon a written contract; it also filed a motion to dismiss the complaint based on sovereign immunity and for failure to state a claim. Data Inquiry then filed an amended complaint with the following documents attached: (a) an unsigned copy of the proposed agreement; (b) an unsigned and incomplete draft of the protective order; (c) an unsigned copy of the “Declaration and Agreement to be Bound” to the protective order; and (d) a copy of the invoice from Data Inquiry to the Department for $25,066.96, dated November 25, 2008. In addition, Data Inquiry attached to its response to the Department’s motion to dismiss three pages of e-mails between Carne, Lewis, and the third party. The e-mails were dated November 2 through 12, 2007, and they showed that the protective order was still in the drafting stages and that the Department and the third party were still negotiating its terms.

On April 15, 2011, the trial court denied the Department’s motion to dismiss, concluding that the documents presented by Data Inquiry, including the unsigned proposed agreement, the unsigned draft of the protective order, the e-mails, and the invoice, “taken together[,] permit [Data Inquiry’s] claims to go forward” under the waiver of sovereign immunity for actions based upon written contracts.

1. On appeal, the Department contends that the trial court erred in finding that Data Inquiry’s breach of contract claim is based upon a written contract and, thus, the claim is not barred by sovereign immunity. We agree.

The Georgia Constitution provides that “sovereign immunity extends to the | Sítate and all of its departments and agencies,” and that the State’s sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver and the extent thereof. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). One of the Constitution’s exceptions to the defense of sovereign immunity is for “any action ex contractu for the breach of any written contract now existing or hereafter entered into by the [SJtate or its departments and agencies.” (Emphasis supplied.) Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c). It is axiomatic that “[t]he party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver.” (Citations omitted.) Bd. of Regents &c. of Ga. v. Doe, 278 Ga. App. 878, 881 (1) (630 SE2d 85) (2006). Thus, in order to overcome the Department’s assertion of sovereign immunity, Data Inquiry has the burden of showing that the contract sought to be enforced is in writing and contains all of the terms necessary to constitute a valid contract. Id.; Merk v. DeKalb County, 226 Ga. App. 191, 191-193 (1) (486 SE2d 66) (1997).

(a) “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. “A contract is not complete and enforceable until there is a meeting of the minds as to all essential terms.” (Citation and punctuation omitted.) Harris v. Baker, 287 Ga. App. 814, 816 (652 SE2d 867) (2007).

As shown above, the proposed agreement expressly provides that it would not be effective until executed by both parties and until the Department paid the $15,000 retainer. Data Inquiry specifically admitted in its complaint that, at the time it performed its work, it had not received either a signed copy of the proposed agreement or the retainer. Further, Data Inquiry has failed to show that any person acting on behalf of the Department or the State has ever executed the proposed agreement.

Even so, the trial court concluded that Data Inquiry had met its burden of proving the existence of a valid written contract with the Department, relying upon Azarat Marketing Group v. Dept. of Administrative Affairs, 245 Ga. App. 256, 257-258 (1) (537 SE2d 99) (2000). The court’s reliance on Azarat constitutes error, however, because Azarat is clearly distinguishable on the facts from the instant case. In Azarat, the plaintiff sued the State for breach of contract, and the State failed to file a timely answer, thereby defaulting on the claim. Id. at 256 (1). Because a defendant in default effectively admits each material allegation of the complaint except as to the amount of damages alleged, the State was deemed to have admitted the existence of a valid contract and the breach thereof. Id. at 257 (1) (b). These admissions, when considered with additional evidence of written documents exchanged between the parties, were sufficient to meet the plaintiffs burden of creating a jury issue as to the existence of a written contract. Id. at 257-258 (1) (b). Consequently, the State was not entitled to summary judgment on the basis of sovereign immunity. Id. at 258 (1) (b), n. 3.

In contrast, the Department in this case did not default on Data Inquiry’s complaint and, as such, cannot be deemed to have admitted the complaint’s allegations. Thus, the ruling of Ararat is inapplicable here and does not relieve Data Inquiry of its burden of producing affirmative evidence to demonstrate that a valid written contract exists in order to establish a waiver of the Department’s sovereign immunity. Bd. of Regents &c. of Ga. v. Doe, 278 Ga. App. at 881 (1); Merk v. DeKalb County, 226 Ga. App. at 191-193 (1).

(b) Even if the undisputed evidence shows that no valid written contract between the parties actually exists, however, a court may still find that a valid written contract has been formed “when there are multiple signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract and the individual documents, considered together, include all of the necessary terms of a contract.” (Citation omitted.) Bd. of Regents &c. of Ga. v. Doe, 278 Ga. App. at 881 (1) (a). In this case, however, it is indisputable that the documents referenced above are not final and signed contemporaneous agreements between the parties. Therefore, they do not support the trial court’s conclusion that Data Inquiry met its burden of showing the existence of a written contract so as to demonstrate a waiver of the Department’s sovereign immunity. See Bd. of Regents &c. of Ga. v. Tyson, 261 Ga. 368, 369-370 (1) (404 SE2d 557) (1991) (finding that a patient’s informed consent form and medical records at a university-run hospital did not contain all of the terms necessary to constitute a written contract between the Board and the patient that would waive the Board’s sovereign immunity for a claim that it failed to provide adequate security).

2. The Department also argues that the trial court erred in finding that the unjust enrichment and quantum meruit claims were not barred by sovereign immunity. Because such claims are equitable in nature, and because sovereign immunity bars equitable claims against the State, we agree.

Unjust enrichment is an equitable principle that may be applied when there is no valid written contract between the parties, but the plaintiff has conferred a benefit to the defendant that would result in that party’s unjust enrichment unless it compensates the plaintiff. Cochran v. Ogletree, 244 Ga. App. 537, 539 (1) (536 SE2d 194) (2000). The theory of quantum meruit is also an equitable principle and is based upon the premise that, “when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” OCGA § 9-2-7. See Ga. Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 825 (3) (426 SE2d 905) (1992) (“An implied contract is one not created or evidenced by distinct and explicit language, but inferred by law as a matter of reason and justice.”) (citation and punctuation omitted).

Although Georgia’s Constitution provides for a waiver of the State’s sovereign immunity in an action asserting the breach of a written contract, as explained in Division 1, supra, the Constitution does not include a waiver of sovereign immunity for equitable claims against the State. Further, “[t]he General Assembly has enacted no statute waiving sovereign immunity for equity claims against the [Sítate.” Dollar v. Olmstead, 232 Ga. App. 520, 522 (2) (502 SE2d 472) (1998). It follows that, because both unjust enrichment and quantum meruit are equitable claims, such claims against the State are barred by sovereign immunity. Id.; see Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 563 (1) (602 SE2d 153) (2004) (physical precedent only) (An unjust enrichment claim seeking reimbursement from the State is barred by sovereign immunity.); Merk v. DeKalb County, 226 Ga. App. at 193 (1) (“[A]n implied contract will not support a waiver of sovereign immunity under the provisions of the Georgia Constitution[.]”) (citation omitted).

Decided January 25, 2012.

Samuel S. Olens, Attorney General, William W. Banks, Jr., Robin J. Leigh, Assistant Attorneys General, for appellants.

Joyce, Thrasher, Kaiser & Liss, Ray S. Smith III, for appellee.

3. The Department argues that the trial court should have dismissed Data Inquiry’s claims for attorney fees. Given our conclusions in Divisions 1 and 2, supra, that Data Inquiry’s contract and equity claims must be dismissed, it follows that Data Inquiry cannot prevail on its only remaining claims, which are for attorney fees under the terms of the proposed agreement and pursuant to OCGA § 13-1-11 (a) or § 13-6-11. See Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. 125, 130-131 (3) (673 SE2d 632) (2009) (Because the trial court erred in finding that the bank could collect on a promissory note, it follows that the court also erred in awarding attorney fees under OCGA § 13-1-11 (a) for the bank’s collection efforts as to that note.); Ellis v. Gallof, 220 Ga. App. 518, 519 (1) (469 SE2d 288) (1996) (“[PJlaintiffs must prevail on their basic cause of action in order to obtain litigation expenses under OCGA § 13-6-11.”) (citations and punctuation omitted). Accordingly, those claims must also be dismissed.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.

       This order is directly appealable pursuant to the collateral order doctrine.
      For the collateral order doctrine to apply, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and is effectively lost if a case is erroneously permitted to go to trial. [Therefore,] an order that denies a motion to dismiss, based on a conclusive determination that the State (or a state officer or employee) is not immune from suit on the basis of sovereign immunity, meets these criteria.
      (Citations, punctuation and footnotes omitted.) Bd. of Regents &c. of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

       The Department of Community Health is a state agency entitled to sovereign immunity. See generally Live Oak Consulting v. Dept. of Community Health, 281 Ga. App. 791 (637 SE2d 455) (2006).

       See also Kyle v. Ga. Lottery Corp., 304 Ga. App. 635, 636 (1) (698 SE2d 12) (2010) (physical precedent only) (The defendant was entitled to sovereign immunity from the plaintiffs’ claims because there was no written contract between the parties, and no statute authorizes a waiver of sovereign immunity for equitable claims against the State.).


author: Ellington, Judge.

text:
    A11A2276.
    SIPPLE et al. v. NEWMAN.
    (722 SE2d 348)
   Ellington, Judge.

Adam Newman filed this premises liability action against Elise Furse, who is now deceased, in the State Court of Chatham County. The trial court denied the motion for summary judgment filed by the executors of Furse’s estate, David and Julian Sipple. The Sipples appeal, contending, inter alia, that there is no evidence that Furse had superior knowledge of the condition that caused Newman’s injuries. For the reasons explained below, we reverse.

In order to prevail on a motion for summary judgment under

OCGA § 9-11-56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

Viewed in the light most favorable to Newman as the nonmoving party, the record shows the following. Furse hired Newman to clean accumulated pine straw from the roof of her house on July 1, 2005. Wet pine straw thickly covered the gutters and a metal awning over the back door of Furse’s house. To remove the pine straw from the awning, Newman leaned a ladder beside the awning so that he could rake the pine straw off and then rested his foot on the awning for balance. The awning gave way, and Newman fell and was injured.

After Newman fell, he discovered that the awning had been attached to the house by nails driven into the bricks and that the nails had rusted. Newman, who was employed as a roofer, testified that he assumed that, along the top flange, the awning would have been bolted to the brick exterior as required by the building code and that a bolted awning would have supported the slight weight he applied. The awning was erected before 1940 and was originally attached with bolts. At some time, however, a painting contractor removed the awning and then reattached it using nails instead of bolts.

At the time of Newman’s fall, Furse was 93 years old and bedridden. Although Furse oversaw the maintenance of her home and yard, there is no evidence that she instructed the painting contractor to reattach the awning with nails or that she ever learned that the contractor had done so. Newman himself testified that, from the ground, Furse could not have seen how the top flange of the awning was attached to the house. In addition, there is no evidence that the awning had ever sagged, buckled, or in any other way revealed that it was not attached in a secure manner.

Under Georgia law, an owner of land is liable to the owner’s invitees “for injuries caused by [the owner’s] failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

An owner’s obligation to keep the premises safe includes a duty to inspect the premises to discover possible dangerous conditions of which [the owner] does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. Still, the owner’s duty to exercise ordinary care is not a duty to absolutely prevent injury as [an owner] is not an ensurer of the safety of its [invitees]. The true ground of liability is the [owner’s] superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property.

(Citations and punctuation omitted.) The Landings Assn. v. Williams, 309 Ga. App. 321, 325 (1) (711 SE2d 294) (2011).

The law only requires such diligence toward making the premises safe as the ordinarily prudent person in such matters is accustomed to use. And, ordinary diligence may not require an inspection where the owner does not have actual knowledge of the defect and there is nothing in the character of the premises indicating a defect.

(Citations and punctuation omitted.) Wingo v. Harrison, 268 Ga. App. 156, 160 (601 SE2d 507) (2004). See also Hansen v. Cooper, 253 Ga. App. 533, 536 (559 SE2d 740) (2002) (“To fulfill the duty to inspect premises to keep them safe from defects including hidden defects, the law requires only the exercise of ordinary care, not extraordinary care.”) (citation omitted).

In this case, there is no evidence in the record that Furse had actual knowledge of the defect. In addition, there is no evidence that anything put Furse on notice that there might be a problem with how the awning was attached. As a result, there is no evidence from which a jury could find that Furse had constructive knowledge of the defect. Because there is no material issue of fact regarding whether Furse had superior knowledge of the hazardous condition, the trial court erred in denying the Sipples’ motion for summary judgment. Wingo v. Harrison, 268 Ga. App. at 160.

Decided January 12, 2012

Reconsideration denied January 26, 2012.

Brennan, Harris & Rominger, Edward R. Stabell III, Britton G. White, for appellant.

Noble L. Boykin, Jr., for appellee.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.

       We granted the Sipples’ application for an interlocutory appeal.

       See Wingo v. Harrison, 268 Ga. App. at 158-160 (In a case where the plaintiff was injured in the collapse of a deck that was nailed, rather than bolted, to the owners’ house, the trial court erred in denying the owners’ motion for summary judgment because there was no evidence that the owners had actual knowledge of a problem with the deck and no evidence that they could have detected the defect through any reasonable inspection.); Pulliam v. Southern Regional Medical Center, 241 Ga. App. 285, 286-287 (1) (526 SE2d 573) (1999) (In a case where the plaintiff was injured when he fell down a ventilation shaft after an improperly installed grate gave way, the trial court correctly granted the owner’s motion for summary judgment because there was no evidence that the owner had actual knowledge of the defect and no evidence that it could have detected the defect through any reasonable inspection.); Nelson v. Polk County Historical Society, 216 Ga. App. 756, 759 (3) (456 SE2d 93) (1995) (In a case where the plaintiff was injured after falling from a ladder when an improperly attached awning gave way, the landlord was entitled to judgment as a matter of law because the undisputed evidence established that the landlord lacked actual knowledge of the negligent construction and because an untrained eye could not have discovered the defect by ordinary means.).