author: Blackwell, Judge.

text:
    A11A1321.
    HOLIMAN v. THE STATE.
    (720 SE2d 363)
   Blackwell, Judge.

Following a bench trial in Fulton County, Jamison Holiman was convicted of trafficking in 400 grams or more of a mixture containing cocaine, based on evidence that Jamison and his brother, Royrecaus, had joint constructive possession of the mixture. Jamison appeals, contending that the evidence adduced at trial is insufficient to sustain his trafficking conviction for several reasons. First, Jamison asserts that, because the State did not prosecute his brother, and because it is undisputed that his brother had equal access to the mixture, proof of joint constructive possession cannot sustain his conviction, and the State instead was required to prove that Jamison had sole constructive possession of the mixture. Second, even if proof of joint constructive possession could sustain the conviction, the evidence does not really prove, Jamison says, that he had constructive possession of any of the mixture, much less 400 grams or more of it. Finally, Jamison contends that the evidence does not show that the cocaine mixture had a purity of 10 percent or more. We find no merit in these claims and affirm the judgment of conviction.

To prove that Jamison committed the offense of which he was convicted, the State had to prove beyond a reasonable doubt that Jamison knowingly possessed 400 grams or more of a “mixture with a purity of 10 percent or more of cocaine.” OCGA § 16-13-31 (a) (1) (C). When we consider whether the evidence adduced at trial is sufficient to sustain the trafficking conviction, we view the evidence in the light most favorable to the prosecution, and we ask only whether any rational trier of fact could find proof beyond a reasonable doubt of the essential elements of trafficking. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). It is for the trier of fact to pass upon the weight and credibility of the evidence and to resolve any conflicts in the evidence, and we do not concern ourselves with such things. See id. “[I]f the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.” Id.

The evidence here shows that law enforcement officers secured a warrant in November 2005 to search an apartment in Fulton County in connection with an extensive investigation of cocaine sales and trafficking in west Atlanta, and when they executed the warrant, the officers found Jamison and his brother inside. According to the officers, the apartment is a small one, and it consists primarily of a kitchen and common living area, two bedrooms, and a balcony. By the time the officers executed the warrant, Jamison had been in the apartment for at least two hours, and he had been its sole occupant for most of that time, until his brother arrived at the apartment just before the officers executed the warrant. The officers first attempted to gain entry to the apartment by knocking on the door and announcing that they had a warrant, but when they did so, they heard “people running through the apartment,” and they then elected to make a forcible entry. When they entered the apartment, the officers found Jamison hiding under a bed in the first bedroom, and they discovered Royrecaus attempting to escape off the balcony. The officers ordered Jamison to come out from his hiding place, but he refused, and the officers had to drag him from it and secure him with handcuffs. Jamison then became belligerent and began yelling profanities at the officers.

Inside the apartment, the officers found not only Jamison and his brother, but also a little marijuana, a lot of cocaine, and equipment commonly used in the distribution of illegal drugs. In the kitchen, for instance, the officers saw a clear plastic bag in plain view, in which they found approximately 95 grams of a substance that, testing later confirmed, was cocaine hydrochloride. The officers also found two digital scales, pots and baking soda, packaging materials, an empty holster for a handgun, and two small bags of marijuana in the kitchen. In the bedroom in which the officers found Jamison, they discovered another bag of marijuana, which was on the floor and near the bed under which Jamison had hidden. And in the other bedroom, the door of which was wide open, the officers found eight plastic bags on the bed, which together contained, as testing later confirmed, approximately 373 grams of cocaine hydrochloride and nearly 123 grams of cocaine base. Also in the second bedroom, the officers discovered a black bag, which contained approximately $3,400 in cash. According to the officers, the apartment is relatively open, and the bags of cocaine found in both the kitchen and the second bedroom were easily visible from the common living area of the apartment, such that no occupant of the apartment could have failed to see them. In addition, the officers described a strong odor of burnt marijuana throughout the apartment.

After Jamison was apprehended, he made several spontaneous statements to the officers. In the course of these statements, Jamison referred to the apartment in which he and his brother were found as “our house.” More specifically, Jamison told the officers that he had been on the balcony as the officers approached the apartment, had seen them approach, and had attempted to warn Royrecaus that officers “were coming to our house.” The officers also found some personal effects of Jamison — mail addressed to him — in the bedroom in which Jamison had hidden.

At trial, the State presented evidence of two similar transactions. In the first of these transactions, in May 2004, two officers found Jamison in the passenger seat of a vehicle in Atlanta, and they found a black bag — which contained approximately 11 grams of cocaine base, packaged for distribution, and more than $5,000 in cash — on the floor of the back seat of the vehicle. In the second, an officer detained Jamison in Douglasville in February 2005 and found him in possession of about 3.5 grams of cocaine base and more than $1,300 in cash. With this evidence and the proper standard of review in mind, we turn now to the claims that the evidence is insufficient to sustain the trafficking conviction.

1. We first consider whether the evidence shows that Jamison knowingly possessed the cocaine mixture found in the apartment. As we have explained before, “[t]he law recognizes that possession can be actual or constructive, sole or joint,” Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010), and the nature of each theory of possession is settled and familiar. A person has actual possession of a thing if he “knowingly has direct physical control [of it] at a given time.” Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009) (citation omitted). “A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” Id. (citation omitted). “If one person alone has actual or constructive possession of a thing, possession is sole,” but “[i]f two or more persons share[ ] actual or constructive possession of a thing, possession is joint.” Id. (citation omitted). The State says that the evidence in this case shows that Jamison and his brother had joint constructive possession of the cocaine mixture in the apartment. Jamison claims, however, that the State must show that he had sole constructive possession of the mixture and that, in any event, the evidence does not show that he had constructive possession of it, sole or joint. We will address these claims in turn.

(a) In Reid v. State, 212 Ga. App. 787, 788, n. 1 (442 SE2d 852) (1994), this Court said that, when more than one individual has equal access to contraband, but only one of these individuals is prosecuted for its possession, and the State relies on evidence of constructive possession, the State must prove that the individual charged “was in sole constructive possession” of the contraband. (Emphasis in original.) We have found no mention of this principle in any case that preceded Reid, and our opinion in Reid cites no authority for it and does not explain why it must be so. The principle was not mentioned again for some time, but in the past few years, this Court has invoked the principle again and again, but never explaining its basis. See, e.g., Jefferson v. State, 309 Ga. App. 861, 862 (1) (711 SE2d 412) (2011); Wheeler v. State, 307 Ga. App. 585, 586-587 (1) (705 SE2d 686) (2011); Bodiford v. State, 305 Ga. App. 655, 657 (700 SE2d 648) (2010); Fyfe v. State, 305 Ga. App. 322, 326 (2) (699 SE2d 546) (2010); Rogers v. State, 302 Ga. App. 65, 67 (1) (690 SE2d 437) (2010); Swan v. State, 300 Ga. App. 667, 671 (2) (686 SE2d 310) (2009); Millsaps v. State, 300 Ga. App. 383, 385 (685 SE2d 371) (2009); Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009); Xiong v. State, 295 Ga. App. 697, 699 (2) (a) (673 SE2d 86) (2009); Benitez v. State, 295 Ga. App. 658, 660 (1) (673 SE2d 46) (2009); Turner v. State, 276 Ga. App. 381, 383 (623 SE2d 216) (2005). Given the absence of an explanation for the principle, some reasonable people might question whether it is a sound one, especially considering the settled rule that the failure of the State to prosecute one party to a crime ordinarily offers no defense to other parties to the crime. See OCGA § 16-2-21 (party to a crime can be convicted even if the principal has not been prosecuted); Davis v. State, 163 Ga. 247, 248 (135 SE 916) (1926) (“Failure to prosecute the principal will in no wise relieve the accessory.”); see also Grimes v. State, 245 Ga. App. 277, 278 (2) (537 SE2d 720) (2000) (“A party to a crime may be prosecuted and convicted for the commission of the offense regardless of whether anyone else was prosecuted.”). We find it unnecessary in this case, however, to pass upon the soundness of the principle, and we will assume that the Reid principle is sound.

It is undisputed that the State did not prosecute Royrecaus for his joint constructive possession of the cocaine mixture in the apartment, but it is equally undisputed that the United States did prosecute Royrecaus in federal court. We never have held that the Reid principle applies when, although all persons with equal access to the contraband are prosecuted, they are prosecuted by different sovereigns or in different courts. And it makes no sense to apply the Reid principle in such a case, especially considering that the law generally bars a prosecution in our courts if the offender already has been prosecuted in federal court for the same conduct, see OCGA § 16-1-8 (c), reflecting a public policy that duplicative prosecutions in state and federal court ought not be encouraged. Because Royrecaus was prosecuted in federal court for possession of the cocaine mixture in the apartment, we hold that the State was permitted to prove its case against Jamison by proof of joint constructive possession even if the Reid principle is proper.

(b) We turn now to the contention that the evidence does not prove that Jamison had constructive possession, joint or sole, of any mixture containing cocaine, much less 400 grams or more of such a mixture. According to Jamison, the evidence fails to show that he had any connection to the apartment in which the mixture was found, except that he was present in the apartment. And even if the evidence shows some connection with the apartment, Jamison says, there is no proof that he has any connection to the second bedroom of the apartment, in which the greater quantity of mixture was found. We disagree.

Like many other elements of proof, constructive possession can be proven by circumstantial evidence. Brown v. State, 307 Ga. App. 99, 100 (1) (a) (704 SE2d 227) (2010). When constructive possession of contraband is to be proven by circumstantial evidence, of course, the evidence must show something more than the mere presence of the defendant at a place in which the contraband is found or his mere spatial proximity to it. See Davenport v. State, 308 Ga. App. 140, 145 (1) (b) (706 SE2d 757) (2011). And as with anything else proven entirely by circumstantial evidence, the evidence must exclude every reasonable hypothesis, save that of constructive possession by the defendant. See Scott v. State, 305 Ga. App. 596, 598 (699 SE2d 894) (2010). But whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we will not disturb the decisions of the trier of fact about these things unless they cannot be supported as a matter of law. See Washington v. State, 251 Ga. App. 206, 209 (1) (553 SE2d 855) (2001).

As we explained earlier, a person constructively possesses a thing when he has the power to exercise dominion and control of it and concurrently has the intent to do so. In this case, Jamison does not dispute that he had the power to exercise dominion and control over the cocaine mixture in both the kitchen and the second bedroom, but he does dispute that the evidence shows that he had an intent to do so. We are unpersuaded.

In light of all evidence in the record and the inferences that might properly be drawn from that evidence, a rational trier of fact in this case might properly have found, we think, that Jamison intended to exercise dominion and control over the cocaine mixture in the apartment at and before the time the officers made their entry. In the first place, Jamison himself referred to the apartment as “our house,” and a rational trier of fact might take this reference as an admission of his control of the premises, from which arises a presumption that Jamison had possession of items found on the premises, including the cocaine mixture. See Bailey v. State, 294 Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008) (“If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband.”). His brother, of course, may have had equal access to the apartment and the cocaine mixture found inside, but a showing of equal access does not rebut the presumption of possession as a matter of law when all persons having equal access to the contraband are alleged to have joint constructive possession of it, Davenport, 308 Ga. App. at 146 (1) (b), and a showing of equal access does not demand an acquittal in any event unless “the sole evidence of possession of contraband found on the premises is the defendant’s [control] of the premises.” Clewis v. State, 293 Ga. App. 412, 415 (2) (667 SE2d 158) (2008); see also Bailey, 294 Ga. App. at 440 (1).

Here, the State contended that Jamison and his brother had joint constructive possession of the cocaine mixture. Moreover, there was other evidence that Jamison intended to exercise dominion and control over the cocaine mixture in the apartment, including evidence that the cocaine mixture was in plain view and visible from the common sitting area of the apartment, that Jamison was in the apartment alone for an extended period of time, that Jamison attempted to warn his brother of the approach of police officers, that both men ran about the apartment after the officers knocked on the door and announced their presence, and that Jamison ultimately attempted to hide from officers under a bed. In addition, there was evidence of two similar transactions, which tended to show a course of conduct and intent to possess and distribute cocaine, possess large amounts of currency, and in one of the similar transactions, use a black bag to transport drug-related items. “[I]ntent to exercise control can be inferred [from] the totality of the circumstances, including the presence of large amounts of contraband and drug paraphernalia in plain view . . . and the defendant’s attempt to flee or hide from police.” Moody v. State, 232 Ga. App. 499, 501 (1) (502 SE2d 323) (1998). Taken together, the evidence in the record tends to show a connection between Jamison and the contraband sufficient to prove that he knowingly shared with his brother the power and intention to exercise dominion or control over the cocaine mixture. See Glenn v. State, 251 Ga. App. 336, 337-338 (1) (553 SE2d 323) (2001).

As for the contention that Jamison did not have constructive possession of the mixture found in the second bedroom — even if he did have constructive possession of the mixture found in the kitchen — it appears to be premised on the notion that the second bedroom was that of Royrecaus. But the evidence does not clearly show that the bedroom was, in fact, that of Royrecaus, notwithstanding that his identification was found in that bedroom. Moreover, the door of the second bedroom was wide open so that the bag of cocaine was clearly visible to other areas of the apartment, and both quantities of the mixture — that found in the kitchen and that found in the second bedroom — were admitted into evidence, which permitted the court below to compare their appearance and packaging and to draw the conclusion that they had a common source. See Riley v. State, 292 Ga. App. 202, 206-207 (2) (663 SE2d 835) (2008) (joint possession of contraband in basement affirmed based in part on fact that contraband in defendant’s possession was in the same packaging as contraband in the basement); Taylor v. State, 285 Ga. App. 697, 698-699 (1) (647 SE2d 381) (2007) (red cellophane wrapping on marijuana jointly possessed by defendant supported State’s charge that defendant also was involved in cocaine trafficking where cocaine at same apartment also was packaged in red cellophane wrapping). In light of this evidence, we cannot say that the evidence is insufficient to connect Jamison to all the cocaine mixture found in both the kitchen and second bedroom of the apartment. See Swanger v. State, 251 Ga. App. 182, 184-185 (1) (a) (554 SE2d 207) (2001).

The circumstantial evidence in this case shows a connection between Jamison and the cocaine mixture found in the apartment beyond mere presence and spatial proximity, or at least a rational trier of fact could find that it does. It also is sufficient to exclude every reasonable hypothesis, save that Jamison intended to exercise dominion and control over the cocaine mixture. For these reasons, the evidence is sufficient to prove beyond a reasonable doubt that Jamison had constructive possession of the mixture in which he was convicted of trafficking.

2. Jamison also contends that the evidence does not prove that the cocaine mixture in the apartment had a purity of ten percent or more of cocaine. The State put into evidence, however, lab reports, which show that each sample of the mixture that was tested had a purity well in excess of 10 percent of cocaine. And as Jamison concedes, this Court has held before that a lab report is sufficient to establish the purity of a mixture containing cocaine. See Stroud v. State, 286 Ga. App. 124, 127 (2) (648 SE2d 476) (2007); Lombardo v. State, 187 Ga. App. 440, 442 (5) (370 SE2d 503) (1988). Jamison argues that these precedents should not be applied in trafficking cases, but that argument is specious, considering that both Stroud and Lombardo were trafficking cases. In any event, we see no reason to limit Stroud and Lombardo, and we decline to do so. Under those precedents, the lab reports were enough to prove the purity of the cocaine mixture. See Stroud, 286 Ga. App. at 127 (2).

Jamison also argues that the State failed to prove that the samples tested are a fair and accurate representation of the entire quantity of the mixture in which he was convicted of trafficking, especially considering that the mixture was found in multiple bags. We do not agree. Based on the testimony at trial of the chemist who tested these samples, the court was authorized to find that a sample was taken from each of the bags for testing and that the samples together were a fair and accurate representation of all the mixture found in the apartment. Even if a sample had not been taken from every bag, the court, as the trier of fact, would have been authorized to view the mixture, which was admitted in evidence, and conclude that it appeared sufficiently uniform to render the samples taken properly representative of the entire quantity. See Means v. State, 188 Ga. App. 210, 210-211 (2) (372 SE2d 484) (1988) (chemist randomly tested contents of 20 bags out of the 121 bag total).

Decided November 30, 2011.

Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P J., concurs. Adams, J., concurs in judgment only.

       See OCGA § 16-13-31 (a) (1) (C). Jamison also was convicted of possession of marijuana, see OCGA § 16-13-30 (a), but he does not complain on appeal about the marijuana conviction.

       Trafficking requires, among other things, the knowing sale, manufacture, delivery, importation, or possession of cocaine or a mixture containing cocaine. See OCGA § 16-13-31 (a) (1). There is no evidence in this case, however, that Jamison sold, manufactured, delivered, or imported any cocaine or cocaine mixture. For this reason, we focus on trafficking by the knowing possession of a cocaine mixture.

       Jamison was convicted of trafficking in a mixture with a purity of 10 percent or more of cocaine, which is prohibited by OCGA § 16-13-31 (a) (1). Although trafficking in a mixture with a purity of less than 10 percent of cocaine also is a crime, it is prohibited by a different subsection of the trafficking statute, OCGA § 16-13-31 (a) (2).

       The officers put the apartment under surveillance at least two hours before they executed the warrant, and no one entered or left the apartment, they said, during the course of their surveillance, except Royrecaus, who arrived just before the warrant was executed.

       Cocaine hydrochloride is more commonly known as “powder” cocaine. The officers also found about 1.65 grams of cocaine base — more commonly known as “crack” cocaine — in the kitchen, but the purity of the cocaine base found in the kitchen never was ascertained, so we do not consider it further.

       According to the officers, the discovery of pots and baking soda is significant because they often are used in the manufacture of crack cocaine.

       A successive prosecution in state court is not barred by an earlier prosecution in federal court if “each prosecution requires proof of a fact not required in the other prosecution” or if “the crime [prosecuted in state court] was not consummated when the former trial [in federal court] began.” OCGA § 16-1-8 (c).

       The evidence that Jamison was inside the apartment alone for a substantial period of time before his brother arrived, as well as evidence that some personal effects of Jamison were found inside the apartment, give credence to such an interpretation of the reference to “our house.” We also note that Jamison maintaining his residence at some place other than the apartment — his grandmother testified that he did not live at the apartment — is not inconsistent with evidence that he controlled the apartment. One can control premises other than his residence.

       Even if the evidence would have permitted the court below to find that Jamison possessed the mixture in the second bedroom, the court did not actually convict him of possessing that mixture, Jamison says, pointing to the fact that the court referenced only the lab report concerning the cocaine mixture in the kitchen in its order denying his motion for new trial. This contention is entirely speculative and is not supported by the transcript of the proceedings at trial, the verdict, or the judgment of conviction. The reference in the order denying the motion for new trial can be fairly understood as a mere illustration of the proof of purity at trial, not as a statement that the mixture in the kitchen was the only mixture that Jamison possessed.


source: Caselaw Access Project

license: Public Domain

text:
    A11A1394.
    BUSH et al. v. BANK OF NEW YORK MELLON et al.
    (720 SE2d 370)
   Blackwell, Judge.

The court below concluded that Dwayne and Beverly Bush fail in their amended complaint to state any claim upon which relief can be granted, and the court awarded judgment on the pleadings to one defendant and dismissed the others. The Bushes appeal, contending that they, in fact, state several claims upon which relief can be granted. Although we review de novo a determination that a pleading fails to state a claim upon which relief can be granted, Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 89 (701 SE2d 472) (2010), we find ourselves unable in this case to undertake such a review because we cannot ascertain the precise nature of the claims that the Bushes assert, which we must do, of course, before we can determine whether relief can be granted upon those claims. The court below, we think, also was in no position to determine the extent to which the Bushes state a claim upon which relief can be granted, and before ruling upon the motions for judgment on the pleadings and to dismiss, it should have, we think, required the Bushes to replead and provide a more definite statement of their claims. We vacate the judgments below and remand for the court to do just that.

Although the pleadings in this case are difficult in many respects to understand, we can discern that the Bushes borrowed nearly $800,000 from First Horizon Home Loan Corporation in February 2006, and in connection with this loan, they gave a promissory note and a security interest in their DeKalb County home to the lender. Several years later, in the second half of 2009, the Bushes filed a number of papers, some of which purport to cancel the security interest in their home, and some of which are utterly nonsensical, with the clerk of the Superior Court of DeKalb County and apparently sent copies of some of these papers to First Horizon, among others. Around the same time, the Bushes defaulted, it seems, on their obligation to repay the loan, and in January 2010, the Bank of New York Mellon — to which the security interest in their home had been assigned in the meantime — notified the Bushes that it intended to foreclose upon the security interest. The Bushes then sent a letter to First Horizon, in which they offered to pay more than $800,000 to First Horizon upon presentment of their original promissory note, and the Bushes allegedly deposited that amount with an “escrow agent” and notary public, who informed First Horizon that she was in receipt of those funds and would pay them over to First Horizon upon presentment of the original note. First Horizon apparently did not accept this offer, and on February 23, 2010, the “escrow agent” executed an affidavit, in which she averred that First Horizon had not accepted the offer, that the chief executive officer of First Horizon “is now in DEFAULT without recourse,” and that First Horizon and its agents had “agreed, by their actions, to Treble Damages separately and equally totaling $2,340,000.00.” The next day, the Bushes, now represented by counsel, filed this lawsuit, naming the Bank of New York, its law firm, an agent of its law firm, the servicer of their loan, and a lawyer for the servicer as defendants.

In their original complaint, the Bushes alleged that First Horizon had engaged in unspecified “(fjraudulent activities,” that First Horizon had accepted a settlement and satisfaction of their loan pursuant to the terms of an unspecified notice dated September 3, 2009, that the Bushes had disputed their default in writing to First Horizon based on this settlement and satisfaction of their loan, that they subsequently offered more than $800,000 to First Horizon in satisfaction of their loan through their “escrow agent,” that the assignment of the security interest in their home to the Bank of New York was not of record, and that the Bushes had disputed in writing that they owed any obligation to the Bank of New York. Although the nature of the claims asserted in the original complaint is difficult to understand, the original complaint appears to assert that one or more of the defendants violated the Fair Debt Collection Practices Act, 15 USC § 1692 et seq., the Real Estate Settlement Procedures Act of 1974, 12 USC § 2601 et seq., the Georgia Commercial Code, OCGA § 11-3-603, the statutory requirement that an assignment of a security deed must be recorded before the assignee can exercise its power of sale, OCGA § 44-14-162 (b), and the settlement and satisfaction to which First Horizon allegedly had agreed. In their original complaint, the Bushes sought an injunction against the foreclosure of their home and an order compelling First Horizon, which was not named as a defendant, to produce the original promissory note and accept their tender of $800,000 in satisfaction of the loan. A few days later, the court below entered a temporary restraining order, which enjoined the defendants from foreclosing the security deed.

Each of the named defendants filed an answer to the original complaint, and the Bank of New York counterclaimed, seeking an order striking the various papers that the Bushes had filed in the real property records of DeKalb County, an injunction against the Bushes filing any additional papers that purport to unilaterally cancel their security deed, a declaratory judgment that the security deed remains valid and that the Bank of New York has a right to foreclose it, and litigation expenses under OCGA §§ 9-15-14 and 13-6-11. In addition, the defendants other than the Bank of New York moved to dismiss the complaint for failure to state a claim upon which relief can be granted, contending that any claims asserted in the original complaint were properly directed to the Bank of New York, not the other defendants. In response, the Bushes filed a “Motion for Declaratory Judgment,” in which they sought — in addition to the relief for which they prayed in their original complaint — a declaratory judgment that they have clear title to their home, that the rejection of their tender of more than $800,000 through an escrow agent amounts to a violation of OCGA § 11-3-603 by the servicer and its lawyer, and that the lawyer for the servicer has engaged in “a scheme or artifice to deprive another of the intangible right of honest services” under 18 USC § 1346 and has violated OCGA § 10-5A-6, which pertains to commodity contracts and options. The Bushes also amended their complaint.

The amended complaint, like the original complaint, is difficult to understand. It consists of 133 numbered paragraphs and asserts claims in 17 distinct counts, and it incorporates 60 paragraphs of the original complaint, as well as seven paragraphs of the “Motion for Declaratory Judgment” that the Bushes had filed earlier, so it also asserts, it seems, whatever claims were asserted in those earlier filings. In addition, it incorporates numerous exhibits by reference, including several of the papers that the Bushes apparently sent to First Horizon in 2009. Each count, except the first, purports to incorporate all of the preceding counts, some counts appear to assert multiple legal claims within a single count, and some counts seem to be based on allegations of fraud that are vague and nonspecific. We cannot understand many of the claims that the Bushes assert in their amended complaint, but the Bushes mention a number of statutes and legal theories in the amended complaint, including that their obligations to repay the loan were discharged by tender under OCGA § 11-3-603, that they reached a settlement and accord and satisfaction of their indebtedness with First Horizon, that they have a right to rescind their loan under the Truth in Lending Act, that the defendants committed mostly unspecified acts of fraud, that they have been subjected to “peonage and usury,” that their loan agreement shows a lack of mutuality, that the Bank of New York has no right to exercise a power of sale under the security deed because it does not also hold the promissory note, that the defendants have failed to provide certain documentation under the Real Estate Settlement Procedures Act, that the defendants have violated the Fair Debt Collection Practices Act, and that the defendants have violated the federal and Georgia Racketeer Influenced and Corrupt Organizations Acts. We cannot say whether the Bushes intended to actually assert claims based on each of these statutes and legal theories, but we suppose that they might have so intended. In any event, based on whatever claims they assert, the Bushes seek $5 million in compensatory damages, $10 million in punitive damages, the compelled production of their original promissory note, an injunction against the foreclosure of the security deed, and a declaratory judgment that the Bank of New York has no right to foreclose the security deed and that their obligation to repay the loan has been discharged or resolved by settlement or accord and satisfaction.

The Bank of New York moved for judgment on the pleadings as to the claims that the Bushes asserted against it, contending that every claim in the amended complaint is based on the notion that the tender of more than $800,000 by the “escrow agent” on behalf of the Bushes discharges their obligation to repay the loan under OCGA § 11-3-603. That notion is wrong, the Bank of New York said, because the Georgia Commercial Code, of which OCGA § 11-3-603 is a part, does not apply to transactions involving real estate and because no one made an unconditional tender of any amount to a person entitled to enforce the promissory note, as OCGA § 11-3-603 requires. The court below granted the motion of the other defendants to dismiss without explanation, and the court granted the motion of the Bank of New York for judgment on the pleadings, finding that the Bushes fail to state a claim under OCGA § 11-3-603 and that none of their claims, as a result, states a claim upon which relief can be granted. The court also granted judgment on the pleadings to the Bank of New York on its counterclaim, although the Bank had not moved for it, and the court struck the papers that the Bushes had filed in the real property records, enjoined them from filing additional papers that pertain to their home, and declared that the security deed is valid. The Bushes appeal from these judgments, contending that they do state a claim for discharge under OCGA § 11-3-603 and that, in any event, they assert many claims that do not depend upon the merit of their claim for discharge.

A complaint fails to state a claim upon which relief can be granted and warrants dismissal or judgment on the pleadings “only if . . . its allegations ‘disclose with certainty’ that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks.” Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011) (citation omitted). “Put another way, ‘if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.’ ” Id. (citation and punctuation omitted). Like the court below, when we assess the sufficiency of the complaint on appeal, we must accept the allegations of fact that appear in the complaint and view those allegations in the light most favorable to the plaintiff. See id. Before any court can undertake to decide, however, whether a complaint states a claim upon which relief can be granted, the court must be able to understand the nature of the claims that the complaint asserts. In this case, we cannot ascertain the nature of the claims that the Bushes seek to assert from their amended complaint, and we do not understand how the court below could have ascertained the nature of their claims. What, then, is a trial court to do when confronted with such a complaint?

The answer, we think, is that the trial court should require the plaintiff to amend his complaint and provide a more definite statement of his claims. A complaint must contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” OCGA § 9-11-8 (a) (2) (A), and as we have explained before, “this short and plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading.” Benedict, 309 Ga. App. at 134 (1). “Each averment of a pleading shall be simple, concise, and direct,” OCGA § 9-11-8 (e) (1), and although alternative theories of a single claim can be pled in a single count, OCGA § 9-11-8 (e) (2), distinct claims must be pled in distinct counts, at least to the extent that “a separation facilitates the clear presentation of the matters set forth.” OCGA § 9-11-10 (b). Moreover, although most elements of most claims can be pled in general terms, so long as they give fair notice of the nature of the claims to the defendant, all allegations of fraud “shall be stated with particularity.” OCGA § 9-11-9 (b). The pleading requirements of the Civil Practice Act are requirements, not just suggestions. But as our Supreme Court has instructed, when a plaintiff fails to conform to these requirements, the proper remedy is a more definite statement, not a dismissal of the complaint or judgment on the pleadings, at least so long as the plaintiff is able and willing to amend his pleadings to conform to the statutory requirements. Hall v. Churchwell’s, Inc., 243 Ga. 852, 853 (257 SE2d 272) (1979). See also Estate of Shannon v. Ahmed, 304 Ga. App. 380, 384 (1) (696 SE2d 408) (2010); TechBios, Inc. v. Champagne, 301 Ga. App. 592, 594 (1) (a) (688 SE2d 378) (2009); Roberts v. Nessim, 297 Ga. App. 278, 284-285 (2) (676 SE2d 734) (2009).

The amended complaint in this case is not a “short and plain statement” of the claims that the Bushes assert, it does not give the defendants fair notice of the nature of these claims, and it does not conform to several of the specific pleading requirements of the Civil Practice Act. The amended complaint here is, instead, what many courts have described as a “shotgun pleading.” The Eleventh Circuit has addressed shotgun pleadings on many occasions, see Davis v. Coca-Cola Bottling Co. Consolidated, 516 F3d 955, 979, n. 54 (VI) (A) (11th Cir. 2008), and we find some guidance in the decisions of that court. Although the concept of a shotgun pleading is not one susceptible of a terse definition, the Eleventh Circuit has identified several characteristics that typically mark such pleadings. A shotgun complaint, for instance, often “contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts . . . contain irrelevant factual allegations and legal conclusions,” Strategic Income Fund v. Spear, Leeds & Kellogg Corp., 305 F3d 1293, 1295 (II) (11th Cir. 2002), combines “multiple claims together in one count,” Ledford v. Peeples, 568 F3d 1258, 1278 (II) (B) (1) (11th Cir. 2009), and buries material allegations “beneath innumerable pages of rambling irrelevancies.” Magluta v. Samples, 256 F3d 1282, 1284 (IV) (11th Cir. 2001). The amended complaint bears these marks of a shotgun pleading.

Such pleadings not only harm the litigants who must answer them, but they “harm the court by impeding its ability to administer justice.” Byrne v. Nezhat, 261 F3d 1075, 1131 (IV) (B) (11th Cir. 2001). As evidenced by the time we have spent in this case, and the efforts of the court below, to try to understand the nature of the claims that the Bushes assert in their amended complaint, “[c]ases framed by shotgun pleadings consume an inordinate amount of a court’s time. As a result, justice is delayed, if not denied, for litigants who are standing in the queue waiting to be heard.” Id. at 1130 (IV) (B). The burden of clearly identifying the claims alleged in a case should not lie with the defendants or the courts; it should lie with the plaintiff, who has an obligation under the Civil Practice Act to make a “short and plain statement” of his claim.

In light of the harm that shotgun pleadings do to the administration of justice, the Eleventh Circuit has said that, when confronted with a shotgun complaint, a trial court should order the plaintiff to give a more definite statement of his claims, even if the defendant does not ask for one. Byrne, 261 F3d at 1133 (IV) (D). At least to the extent that a trial court is called upon to determine whether a complaint states a claim upon which relief can be granted but cannot because the complaint fails to comply with the pleading requirements and is too confusing, the approach of the Eleventh Circuit is, we think, the right one. To determine whether a complaint states a claim upon which relief can be granted, a court first, as we have explained, must identify the nature of the claims asserted, and in the case of a shotgun complaint, that task almost always will require an inordinate commitment of judicial time and resources, and it sometimes will prove impossible. Requiring the plaintiff to make a more definite statement of his claim saves judicial resources and permits the court, when a sufficiently more definite statement has been pled, to determine whether the complaint states a claim by applying the usual standards for the legal adequacy of a complaint. Although the Civil Practice Act does not expressly authorize a court to order a more definite statement in the absence of a motion, see OCGA § 9-11-12 (e), we see no reason that a court cannot do so as an exercise of its inherent powers to manage its docket and to compel compliance with the rules and requirements of civil procedure. See Bayless v. Bayless, 280 Ga. 153, 155 (1) (625 SE2d 741) (2006) (acknowledging inherent powers of trial courts); Truitt v. Housing Auth. of Augusta, 235 Ga. App. 92, 94 (507 SE2d 781) (1998) (same).

When a trial court orders a plaintiff to make a more definite statement of his claims, the court should, we think, identify the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act, and the court also should warn the plaintiff about the potential consequences of a failure to replead in a way that conforms to these requirements. A plaintiff may not always get it quite right in his first attempt to replead, and if the court still cannot ascertain the nature of the claims that the plaintiff seeks to assert, the court may enter another order to replead again. But the trial court and the defendants need not become caught in an endless cycle of attempts to replead, and if it appears that a plaintiff is unable or unwilling to plead in conformance to the Civil Practice Act and the directions of the court, the court may be authorized in some cases to dismiss the complaint, not for a failure to state a claim, but for disregard of the rules and orders of the court. See, e.g., OCGA § 9-11-41 (b) (“For failure of the plaintiff to . . . comply with [the Civil Practice Act] or any order of court, a defendant may move for dismissal of an action or of any claim against him.”); Byrne, 261 F3d at 1133 (IV) (D) (“Implicit in [an instruction to make a more definite statement] is the notion that if the plaintiff fails to comply with the court’s order — by filing a repleader with the same deficiency — the court should strike his pleading or, depending on the circumstances, dismiss his case and consider the imposition of monetary sanctions.”).

In this case, we cannot ascertain the nature of the claims that the Bushes seek to assert in their amended complaint, and we do not think the court below was in any better position to do so. Consequently, the court below should have required the Bushes to amend their pleadings again and to make a more definite statement of their claims before passing upon the motions to dismiss and for judgment on the pleadings. We vacate the judgments below, and we remand for the court below to require the Bushes to replead and make a more definite statement of their claims. When the Bushes have filed a complaint from which the court below can ascertain the nature of their claims, the court then should reconsider whether the Bushes state a claim against any of the defendants upon which relief can be granted and conduct such other and further proceedings as are appropriate.

Decided November 30, 2011.

Louise T. Hornsby, for appellants.

McCalla Raymer, Jimmy T. Howell, Jr., Steven J. Flynn, for appellees.

Judgments vacated and case remanded with direction.

Barnes, P. J., and Adams, J., concur.

       The Bushes brought this suit on behalf of themselves and the Bush Family Revocable Living Trust, of which they are trustees. For the sake of simplicity, we will refer to all the plaintiffs in this case as the “Bushes.”

       Because we are remanding the case, we deny both the appellants’ and appellees’ motions for leave to file supplemental briefs in this Court.

       These papers include a “Full Reconveyance” that purports to convey the security interest of First Horizon back to the Bushes, a “Notice of Right to Cancel” that purports to describe the rights of borrowers under the Truth in Lending Act, a “Notice of Removal” that purports to void the security deed that the Bushes gave to their lender, a “Notice of Revocation of Power of Attorney” that purports to rescind the security deed and note for fraud, a UCC financing statement that purports to reflect that Dwayne Bush has a security interest in all of his own property, an agreement by which Dwayne Bush promises to indemnify and hold himself harmless from any claims or judgments, and a notice to “All State, Federal and International Public Officials” that, although Dwayne Bush purports to be a sovereign citizen not subject to the jurisdiction of the United States, he claims all of his rights and privileges under various provisions of the United States Constitution and federal law.

       The sale apparently was set to occur on March 2, 2010.

       Just before sending this offer, the Bushes apparently also recorded a UCC financing statement that purports to reflect that Dwayne Bush has a security interest in various properties of First Horizon.

       Even after filing their lawsuit, the Bushes apparently continued to send bizarre papers to First Horizon and others, including a “Notice of Counterfeit Security and Other Violations of Federal Law, and Statement of Facts” dated March 4, 2010, in which Dwayne Bush invokes, among other things, the “Supplemental Rules of Admiralty, related to Specific Performance of International Treaties, Contracts, [and] Constitutional Fiduciary Duty,” the First, Fourth, Fifth, Sixth and Ninth Amendments to the United States Constitution, the Hague Convention of 1961, the Fair Debt Collection Practices Act, the Truth in Lending Act, and the Real Estate Settlement Procedures Act.

       The record shows that the assignment is dated December 2009 but was not recorded in the real property records of DeKalb County until March 2010.

       We do not even know how many claims the Bushes intended to assert in their original complaint because it contains no distinct counts.

       Of these counts, 16 are enumerated, and an additional unnumbered count, entitled “Suit for Quiet Title to Land,” appears near the end of the amended complaint. The enumerated counts are captioned “Declaratory Relief (Due to Plaintiffs!’] legal offer of tender),” “Tortious Inference [sic] with Contract and Dishonor in Commerce,” “Declaratory Relief (Due to improper securitization of Plaintiffs!’] promissory note),” “Slander of Title,” “Fraud Theft by Deception,” “Counterfeiting a Security,” “Wrongful Foreclosure,” “Fraud in the Inducement,” “Theft by Deception,” “Declaratory Relief (due to tacit agreement to terms of settlement and satisfaction),” “Breach of Contract,” “Fair Debt Collection Act,” “Criminal Enterprise,” “Breach of Statutory Duty,” “Civil RICO,” and “Punitive Damage.”

       Count II, for instance, perhaps asserts claims for mail fraud to deprive Dwayne Bush of the intangible right to honest services under 18 USC § 1346 and for fraudulent or deceitful acts with respect to commodities contracts and options in violation of OCGA § 10-5A-6. Count X appears to seek a declaratory judgment based on, among other things, the Real Estate Settlement Procedures Act, the Fair Debt Collection Practices Act, the Truth in Lending Act, 15 USC § 1601 et seq., and the alleged 2009 settlement and satisfaction. Count XI seems to assert ten distinct claims for breach of contract. Count XIII asserts claims under both the federal Racketeer Influenced and Corrupt Organizations Act, 18 USC § 1961 et seq., and the Georgia Racketeer Influenced and Corrupt Organizations Act, OCGA § 16-14-1 et seq., and Count XV appears to assert a claim under one or both of these statutes, although it mentions neither.

       Some of these statutes may have no application in this case, and some of the legal theories are novel and untested. We do not mean to suggest that the Bushes have, in fact, stated a claim under any of these statutes or legal theories.

       The Bushes also had filed a motion to add First Horizon as a defendant, which the court below also denied, in part because the addition of First Horizon would be futile, the court said, inasmuch as the Bushes state no claim against any other defendant. The Bushes also appeal from the denial of this motion, and because it was based in part on the determination that the Bushes fail to state a claim upon which relief can be granted — a determination that was, as we explain below, premature — we vacate the denial of the motion to add First Horizon as a defendant.

       We recognize that the pleading standards in a Georgia court and in a federal court may not be identical. Compare Battle v. Seago, 208 Ga. App. 516, 516 (431 SE2d 148) (1993) (applying “no set of facts” pleading standard, taken from Conley v. Gibson, 355 U. S. 41 (78 SC 99, 2 LE2d 80) (1957)), with Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 562-563 (II) (B) (127 SC 1955, 167 LE2d 929) (2007) (rejecting “no set of facts” pleading standard). But a complaint filed in either court must contain “a short and plain statement” of the claim and must give the defendant fair notice of the nature of the claims against which he must defend. That is precisely what shotgun complaints fail to do, and for this reason, we find the federal cases about shotgun pleadings instructive.

       Shotgun complaints also sometimes “mak[e] no distinction among the [many] defendants charged, though geographic and temporal realities make plain that all of the defendants could not have participated in every act complained of.” Magluta, 256 F3d at 1284 (IV). That is not a problem, however, with the amended complaint in this case, which seems to adequately identify which defendant or nonparty is alleged to have done the particular acts that form the basis for the claims.

       We are dealing here with a shotgun complaint, but an answer also can be filed in shotgun fashion, and it is not just plaintiffs that sometimes file improper shotgun pleadings.

       There is some danger, of course, that a defendant may be put to unnecessary expense and trouble or otherwise prejudiced if the assessment of the legal sufficiency of the complaint is prolonged indefinitely, but we are confident that the trial courts have sufficient discretion and authority to ameliorate any harm to a defendant. See, e.g., OCGA § 9-11-26 (c) (protective orders); OCGA § 9-11-65 (a) (interlocutory injunctions); Uniform Superior Court Rule 5.1 (court may alter timing of discovery); Uniform Superior Court Rule 6.2 (court may defer obligation of party to respond to motions).

       We are not unsympathetic to the trial judge, who found herself confronted with an unusually confusing complaint, as well as numerous other irregular filings, which together form a record that is especially voluminous for a case that has not yet proceeded past the pleadings stage. The trial judge devoted substantial time and resources to a resolution of this case, and the judge prepared a thorough and reasoned order on the motion for judgment on the pleadings. We think, however, that the trial court should not have attempted to guess the nature of the various claims that the Bushes seek to assert, but instead should have ordered the Bushes to clarify the nature of their claims by making a more definite statement. We acknowledge that our decision will require the trial judge and defendants in this particular case to expend more time and resources addressing the pleadings of the Bushes. But the approach we require today will in most cases save the courts and the defendants considerable time, we think, by requiring plaintiffs to clearly state the nature of their claims before anyone undertakes to assess the legal sufficiency of the complaint.

       More specifically, we vacate the order granting judgment on the pleadings to the Bank of New York on the claims that the Bushes assert against it, the order dismissing the other defendants, and the order denying leave to add First Horizon as a party, all of which were based, in whole or in part, on the conclusion that the Bushes fail to state a claim upon which relief can be granted. We also vacate the order granting judgment on the pleadings to the Bank of New York on its counterclaim, inasmuch as the merit of the counterclaim depends, at least in some respects, on the merit of the claims that the Bushes may be attempting to assert in their complaint.


author: BARNES, Presiding Judge. BLACKWELL, Judge,

text:
    A11A1422.
    THOMAS v. HL-A CO., INC.
    (720 SE2d 648)
   BARNES, Presiding Judge.

Sonja Thomas appeals the grant of summary judgment to her former employer, HL-A Co., Inc., on her claim that HL-A improperly terminated her employment in violation of OCGA § 34-1-3 (a) for attending a juvenile court proceeding. HL-A contends, however, that Thomas was not terminated in violation of OCGA § 34-1-3 (a) but because the company believed that Thomas had falsified her employment application. Because Thomas submitted sufficient evidence to show a prima facie case of retaliation, and HL-A failed to come forward with competent evidence showing a proper reason for the termination, we must reverse the trial court.

Thomas argues on appeal that the trial court erred by placing the burden of proof upon her to prove she was penalized because of her absence, and that the court erred by finding she failed to carry that burden. Thomas also contends that the trial court erred by finding that she failed to present sufficient evidence to raise a jury question as to whether HL-A violated OCGA § 34-1-3, any other law, or any public policy by terminating her employment.

1. In Georgia,

[t]he standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation and punctuation omitted.) Overton Apparel v. Russell Corp., 264 Ga. App. 306, 307 (1) (590 SE2d 260) (2003). Further, 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. See Chester v. Smith, 285 Ga. 401, 401 (677 SE2d 128) (2009); Merlino v. City of Atlanta, 283 Ga. 186, 186 (657 SE2d 859) (2008).

Viewed in the light most favorable to Thomas as the nonmoving party, the record shows that Thomas initially worked for a temporary employment agency which placed her with HL-A in March 2007, then became an HL-A employee in July 2007. During the hiring process, Thomas completed an application affirming she had no relatives employed at HL-A. HL-A had an anti-nepotism policy which would have prevented her employment if she were married at that time to another HL-A employee. Thomas was living with another HL-A employee, Joshua Smith, when she was hired.

Thomas took unpaid personal days to attend juvenile court hearings involving Smith’s daughter in Tennessee in February and June 2009, pursuant to witness subpoenas. A week after informing her supervisor that the Tennessee case had not been resolved, HL-A determined that Thomas’s latest absence was not excused and planned to count the absence as unexcused. Under HL-A policy, an employee with a certain number of unexcused absences was subject to termination. Thomas protested that her absence should be excused because she was attending a court hearing pursuant to a witness subpoena. The next day, HL-A fired Thomas, who sued for damages arising from a violation of OCGA § 34-1-3 (a).

HL-A responded that Thomas was fired for providing false information on her job application by not disclosing that she was married to Smith. HL-A contends that it reasonably believed Thomas was married to Smith because Smith had completed several work-related forms when hired in 2003 listing Thomas as his spouse and subsequently obtained medical insurance for her as his spouse. Thomas contends, however, that she did not marry Smith until October 14, 2009, four months after she was fired, and submitted a copy of her marriage certificate as proof. Thomas argues that she was fired because she protested being penalized for her absence while attending a judicial proceeding pursuant to a subpoena.

The essential rules for motions for summary judgment are codified at subsections (a) through (c) of OCGA § 9-11-56. Parties prosecuting or defending claims may move for summary judgment, with or without supporting affidavits. Then, summary

judgment sought shall be rendered forthwith 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.

OCGA § 9-11-56 (c).

2. Our legislature created a limited number of “ ‘public policy’ exceptions to the proposition that the employment of an at-will employee can be terminated for any reasons whatsoever or for no reason at all.” Borden v. Johnson, 196 Ga. App. 288, 289 (1) (395 SE2d 628) (1990) (no exception for employee fired due to pregnancy). Those legislative exceptions include OCGA § 34-1-3, which authorizes an employee to recover damages if discharged for attending a judicial proceeding in response to a court order. Id. at 290 (1). See also Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 280 (1), n. 7 (528 SE2d 238) (2000) (OCGA § 34-1-2 prohibits firing someone due to age, though it allows only criminal sanctions, not a civil cause of action).

HL-A argues that the subpoena was not personally served on Thomas as required by Tennessee law, and therefore, because Thomas’s attendance at court was not “required,” the statute did not protect her for her absence from work. The dissent agrees with that proposition, which would require a person receiving a subpoena to engage legal counsel to research its validity before she could rely on the protections of OCGA § 34-1-3 and attend court. An equally unpalatable consequence for a person served with an apparently valid subpoena would be to ignore the subpoena’s command to appear and incur the possibility of a contempt citation or even an arrest. We disagree that the plain language of the statute requires an employee to conduct such an inquiry.

In 1995, the Attorney General of the State of Georgia issued an opinion advising that OCGA § 34-1-3 applies to Georgia employees who are “involved in judicial proceedings” in states other than Georgia. 1995 Op. Atty. Gen. 95-13, 1995 Ga. AG LEXIS 19. In the opinion, the attorney general determined that

a primary purpose of OCGA § 34-1-3 appears to be to protect Georgia employees. The legislature chose to place this provision in the portion of the Code relating to labor relations and to give employees a cause of action against employers. In light of this obvious intent, there is no sound reason to construe the term “judicial proceedings” to only mean “judicial proceeding in Georgia” and thereby leave some Georgia employees who are subject to compulsory process unprotected.

The crux of the issue is whether the statute requires the employee to prove that the court order or subpoena was ultimately enforceable, or whether it is sufficient that the document was facially valid such that a reasonable employee would have construed it as mandating compliance. As the statute itself does not resolve this issue, we apply the interpretation consistent with the public policy and intent behind the statute.

In the only reported appellate opinion applying OCGA § 34-1-3, we held that an employee who was fired for attending a juvenile court proceeding with her son was entitled to unemployment benefits, even though the hearing officer found that she had sufficient previous attendance problems to justify her termination. Glover v. Scott, 210 Ga. App. 25, 25-26 (435 SE2d 250) (1993) (employee’s attendance as parent was compulsory). We noted that “[t]o hold otherwise would allow employers to flout the letter and spirit of OCGA § 34-1-3 (a) and to penalize an employee for attending a judicial proceeding by claiming the penalty or termination was for some other infraction or previous work absence.” Id. at 26.

Although the employer argues that the Tennessee subpoena commanding Thomas to appear in court was not properly served and therefore was not compulsory, the subpoena was facially valid. Further, the statute only provides that a subpoena “require! ] the attendance of the employee at the judicial proceeding” to bestow a cause of action upon the employee for termination resulting from that court appearance. OCGA § 34-1-3 (a). As the statute’s primary purpose is to protect Georgia employees, it would be unreasonable to apply its protection only after legal analysis determined that the subpoena was enforceable. And while we held in Carr v. Farmer, 213 Ga. App. 568 (445 SE2d 350) (1994), that a Georgia superior court cannot order a psychiatric institution to comply with a subpoena duces tecum issued by an Alabama court, that case involved federally protected medical records involving substance abuse, an issue different from the one before us here. Additionally, although the employer argues that the Tennessee subpoena had no legal effect, one of the cases it cites in support of that proposition involved personal jurisdiction over a foreign corporation and is inapplicable. B & D Fabricators v. D. H. Blair Investment Banking Corp., 220 Ga. App. 373 (469 SE2d 683) (1996).

Finally, the attendance rules in the employer’s handbook did not even comply with OCGA § 34-1-3, as they stated somewhat confusingly that an employee is only protected for work absences due to a “court required appearance[, . . .] defined as: [Employee] is not a named party in the proceedings; [employee] is accompanying a minor child or stepchild who has been subpoenaed to testify as a witness.” The statute’s protection is not limited to employees accompanying a minor child subpoenaed to testify.

Attendance at judicial proceedings is one of the very few protections an at-will employee has against being fired. The fact that Thomas was questioned about her application the same day she showed her employer a copy of OCGA § 34-1-3 and forced it to back down on its attendance policy, then fired within days, may alone be sufficient to entitle her to a jury trial. While Georgia courts have not addressed the burden of proof in an action brought under OCGA § 34-1-3, under federal law “[t]he general rule is that close temporal proximity between the employee’s protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.” Brungart v. BellSouth Telecomms., 231 F3d 791, 798-799 (11th Cir. 2000) (no prima facie case of retaliatory termination in violation of Family Medical Leave Act because plaintiff failed to show that the supervisor who fired her knew she had applied for FMLA leave).

3. Further, HL-A did not support its motion for summary judgment with affidavits, but instead submitted “declarations under penalty of perjury” from its human relations manager and assistant human relations manager to establish the central facts in support of its assertion that Thomas was fired because she falsified her employment application. This evidence, however, is not authorized in Georgia. In addition to the other items mentioned in OCGA § 9-11-56 (c), our law allows motions for summary judgment to be supported and defended with affidavits, and our law is very specific about what the affidavits must contain.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties.

OCGA § 9-11-56 (e). In addition, our law is also definite on what constitutes an affidavit.

A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit. In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence. To make a valid affidavit the affiant must swear to it, and the fact of his swearing must be certified by a proper officer. In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.

(Citation and punctuation omitted.) Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994). The declarations under penalty of perjury submitted by HL-A do not meet this test. The HL-A managers did not swear to the truths of their statements, nor were their swearings certified by a proper officer. Consequently, their declarations had no force, no validity, and amounted to nothing, when standing alone, or when construed in connection with other evidence.

A defendant on summary judgment may point to an absence of evidence in the record supporting the plaintiffs claim, and the plaintiff must then respond with specific evidence supporting her claim. Here, the plaintiff presented competent circumstantial evidence from which a jury could infer that she was fired in retaliation for arguing to management that she was statutorily entitled to be excused for her absence because she was attending court pursuant to a witness subpoena. See Jones v. Board of Regents &c. of Ga., 262 Ga. App. 75, 81 (4) (585 SE2d 138) (2003) (plaintiff presented sufficient circumstantial evidence for a jury to determine whether he was terminated in reprisal for whistleblowing activity). HL-A then failed to come forward with competent evidence showing a proper reason for the termination. Therefore, the trial court erred by granting HL-A’s motion for summary judgment.

Judgment reversed.

Miller, P. J., Phipps, P. J., Ellington, Adams and Doyle, JJ., concur. Blackwell, J., dissents.

BLACKWELL, Judge,

dissenting.

Because OCGA § 34-1-3 (a) does not forbid the discharge or discipline of an employee who, although not compelled to do so, misses work voluntarily to attend a judicial proceeding, I respectfully dissent. No one disputes that, when we construe a statute, we must search “diligently for the intention of the General Assembly.” See OCGA § 1-3-1 (a). But our search for the intent of the legislature always must begin with the words of the statute, and if those words are clear and unambiguous, it also must end there, see Strength v. Lovett, 311 Ga. App. 35, 43 (2) (a) (714 SE2d 723) (2011), because, as we have explained before, we always must presume that the General Assembly meant what it said and said what it meant. Northeast Atlanta Bonding Co. v. State, 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011). This is especially true when we are construing a statute that puts limits on the prerogative of an employer to discharge or discipline an at-will employee, for the common law recognizes no such limits, see Borden v. Johnson, 196 Ga. App. 288, 289-290 (1) (395 SE2d 628) (1990), and we must strictly construe statutes in derogation of the common law. See Brookfield Country Club, Inc. v. St. James-Brookfield, LLC, 287 Ga. 408, 411 (1) (696 SE2d 663) (2010). By its plain terms, OCGA § 34-1-3 (a) forbids the discharge or discipline of an employee for an absence only when the employee is absent “for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which requires the attendance of the employee at the judicial proceeding.” (Emphasis supplied.) So, unless an employee is required to attend a judicial proceeding, OCGA § 34-1-3 (a) does not forbid her discharge or discipline for having missed work to attend it.

Sonja Thomas missed work to attend a juvenile court proceeding in Tennessee, having received a subpoena issued by the authority of a Tennessee court. But Thomas is a Georgia resident with no apparent connection to Tennessee that would subject her person to the jurisdiction of its courts, and she apparently was served with the subpoena by mail in Georgia. Consequently, the subpoena did not require Thomas to attend the hearing or, for that matter, to do anything at all, something that neither Thomas nor the majority disputes. For this reason, OCGA § 34-1-3 (a) simply has no application in this case.

Rather than applying the statute as written, however, the majority rewrites it to forbid the discharge or discipline of an employee who is absent from work “for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which [reasonably appears on its face to be valid and purports to require] the attendance of the employee at the judicial proceeding.” Perhaps it is, for the reasons the majority gives, good policy to extend the protection of the statute so far, but we are supposed to concern ourselves with law and leave questions of policy to the General Assembly. See Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165) (2010); Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963). We have no authority to “rewrite statutes to promote policies that are not expressed in that legislation,” Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 450 (1) (a) (697 SE2d 166) (2010), and because that is precisely what the majority does today, I respectfully dissent.

Decided November 30, 2011

Richard O. Samms, for appellant.

Burr & Forman, John O. Sullivan, Ashby L. Kent, for appellee.

       OCGA § 34-1-3 (a) provides:
      It shall be unlawful for any employer or the agent of such employer to discharge, discipline, or otherwise penalize an employee because the employee is absent from his or her employment for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which requires the attendance of the employee at the judicial proceeding. It shall be unlawful for any employer or the agent of such employer to threaten to take or communicate an intention of taking any action declared to be unlawful by this subsection.

       My understanding of the statute is consistent not only with its plain terms, but also with our application of the statute in Glover v. Scott, 210 Ga. App. 25 (435 SE2d 250) (1993). In Glover, we said that the statute prohibited the termination of an employee who attended a juvenile court hearing that, the hearing officer below had found, the employee was legally compelled to attend. 210 Ga. App. at 25 (“The hearing officer . . . found that as a parent [the employee] had to appear with her son at juvenile court.”). In addition, my understanding is consistent with the opinion of our Attorney General that the statute is intended to protect employees “who are subject to compulsory process.” 1995 Op. Atty. Gen. 95-13. This case is readily distinguishable from the circumstances addressed by the Attorney General, which involve a resident of another state who is employed in Georgia and is summoned to appear in a judicial proceeding in the state in which the employee resides, a summons by a court that unquestionably would have jurisdiction of the person of the employee.

       Even if Thomas were subject to the jurisdiction of the Tennessee courts, Tennessee law only authorizes the service of a subpoena for attendance at a hearing or trial “at any place within the state [of Tennessee].” Tenn. R. Civ. E 45.05 (1).

       Although this case involves a short absence from work to attend a court hearing in Tennessee, the statute is not limited to short absences, nor is it limited to absences to appear only in a court in Georgia or a neighboring state. So, under the majority’s interpretation of the statute, a Georgia resident employee could be excused from work to voluntarily attend judicial proceedings for an indefinite period of time in, for instance, Kansas, Hawaii, the Kingdom of Cambodia, or the Principality of Liechtenstein, so long as the employee had been handed some piece of paper that, on its face, reasonably appears to be a valid subpoena issued by the authority of some judicial tribunal somewhere in the world. I cannot believe that the General Assembly intended any such thing when it enacted OCGA § 34-1-3 (a), and the plain terms of the statute certainly do not suggest that it so intended.


author: SMITH, Presiding Judge.

text:
    A11A0802.
    McCREE v. THE STATE.
    (720 SE2d 208)
   SMITH, Presiding Judge.

Stephanie McCree appeals from the trial court’s order denying her plea in bar based upon a violation of her right to a speedy trial. For the reasons set forth below, we affirm.

The record shows that McCree and her co-defendant, Somora Wilson, were arrested on November 18, 2005, and subsequently indicted on May 1, 2008, for three counts of cruelty to children and five counts of aggravated battery. The case was tried before a jury beginning on August 24, 2009, but the case ended in a mistrial when a previously admitted audiotape containing hearsay was played during the jury’s deliberations at the jury’s request. The trial court entered an order granting the mistrial on August 27, 2009.

On September 28, 2009, McCree filed two plea in bar motions: one based upon prosecutorial misconduct and the other upon a violation of her right to a speedy trial. After a hearing held on July 9, 2010, the trial court denied both motions in separate written orders entered on August 5, 2010. The record shows that a new assistant district attorney assigned to the case requested the rule nisi in June 2010 to schedule the motions for a July 2010 hearing after discovering that the court computer system had mistakenly listed the case as closed since the date of the mistrial. The assistant district attorney discovered the error when she “actually pulled the physical file that [she] was taking over and . . . started inquiring as to the status.”

On appeal, McCree contests only the denial of her plea in bar based upon an alleged violation of her speedy trial rights. This court has already considered and rejected an identical claim by her co-defendant. See Wilson v. State, 311 Ga. App. 780 (717 SE2d 300) (2011).

The Sixth Amendment of the United States Constitution guarantees that, “(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. ...” This right is enshrined in the Georgia Constitution and is co-extensive with the federal guarantee made applicable to the states by virtue of the Fourteenth Amendment of the United States Constitution. Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (II) (112 SC 2686, 120 LE2d 520) (1992). As for the first tier of the analysis, it must be determined if the delay in question is presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the court must engage the second tier of analysis by applying a four-factor balancing test to the facts of the case. Those four factors include: (1) whether the delay is uncommonly long; (2) reason for delay/whether the government or the defendant is more responsible; (3) defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. On appeal, the relevant standard of review is whether the trial court abused its discretion.

(Citations omitted.) Brewington v. State, 288 Ga. 520 (1) (705 SE2d 660) (2011). In this case, “the relevant time frame for purposes of the . . . motion to dismiss on constitutional speedy trial grounds is from the date of the mistrial. . . through the date the motion was denied. ...” Id. at 521 (2).

Decided November 9, 2011

Reconsideration denied December 1, 2011.

Gerard B. Kleinrock, for appellant.

R. Javoyne Hicks White, District Attorney, Anna W. Davis, Assistant District Attorney, for appellee.

As in Wilson, supra, we need not decide whether this delay of eleven months and ten days is presumptively prejudicial because McCree cannot meet her “burden under the second stage of the Barker inquiry.” Wilson, supra, 311 Ga. App. at 782. The record supports the trial court’s finding that there was no intentional delay by the State, that McCree contributed to the post-trial delay by failing to submit a rule nisi to schedule a hearing on her motion, and that evidence of prejudice to McCree was minimal. After balancing these factors against any uncommon length of delay between the mistrial and the trial court’s ruling on the plea in bar, we cannot conclude that the trial court abused its discretion by denying McCree’s speedy trial claim. Id.

Judgment affirmed.

Mikell and Dillard, JJ., concur.


author: Doyle, Judge.

text:
    A11A1022.
    YAMAHA MOTOR CORPORATION, U.S.A. et al. v. McTAGGART et al.
    (720 SE2d 217)
   Doyle, Judge.

Roger and Glenda McTaggart filed a personal injury action against Yamaha Motor Corporation, U.S.A., Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor Company, Ltd. (collectively, “Yamaha”), after Roger sustained injuries when his Yamaha Rhino rolled over onto his leg. The McTaggarts’ sole claim at trial was that the Rhino was defective because it lacked a door. At the conclusion of the trial, the jury returned a verdict in favor of the McTaggarts in the amount of $317,002. Yamaha appeals the trial court’s denial of its subsequent motion for new trial, arguing that the trial court erred (1) by denying its motions for directed verdict and judgment notwithstanding the verdict; (2) in its instructions to the jury; and (3) by denying its request to include Yamaha’s affirmative defenses on the special verdict form. Because the evidence demands a finding that Roger assumed the risk of his injuries, we reverse and remand the case.

On appeal from a trial court’s rulings on motions for directed verdict and judgment notwithstanding the verdict, we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

Viewed in this light, the record shows that the McTaggarts purchased their 2006 Yamaha Rhino 660 in October 2006. The vehicle is a two-seater without doors or windows. It has a steel roof cage, a textured, slip-resistant floor board, foot guards on both sides to help keep feet and legs inside the vehicle, hip guards, handholds, bucket seats, and three-point seatbelts. The vehicle also contains a warning sticker inside the vehicle, which sticker warns users that they could be severely injured or die if they attempt to stop a rollover using an arm or a leg, and it instructs the occupants to keep their arms and legs inside the vehicle.

When Roger purchased his Rhino, the dealership offered to install a flexible, plastic, aftermarket weather enclosure for the vehicle, but Roger explicitly declined because he preferred open access to allow for easy ingress and egress. In July 2007, following Roger’s injuries, Yamaha added sculpted doors on new Rhinos and offered to install them on pre-owned vehicles after learning of lower extremity injuries that occurred when drivers extended their legs outside the vehicle during rollovers.

Roger traversed a variety of terrains in the Rhino at his property in Blue Ridge, Georgia, and he used the vehicle to haul dirt and livestock feed, build a fence, and carry equipment for his job as a grave digger. On May 14, 2007, Roger entered his Rhino, turned off the emergency brake, and put the vehicle into gear. According to Roger, he applied slight pressure to the gas pedal while making a “slight right turn,” and the vehicle flipped over onto the driver’s side after traveling less than six feet, landing on Roger’s left leg and causing a severe laceration.

The McTaggarts filed suit in November 2008, asserting claims for negligence and strict liability. The complaint alleged that Roger’s injuries were caused by a latent stability defect and the absence of doors. Four weeks before trial, the McTaggarts abandoned their stability defect claims, electing to proceed solely on their claim that the Rhino’s occupant compartment was defective because it did not have a door.

The jury returned a verdict in favor of the McTaggarts as follows: $140,000 for pain and suffering; $13,690 for medical expenses; $38,312 for lost wages; $100,000 for future lost wages; and $25,000 for Glenda’s loss of consortium. Yamaha subsequently filed a motion for new trial, which the trial court denied, and this appeal followed.

1. Yamaha argues that the trial court erred by denying its motions for a directed verdict and judgment notwithstanding the verdict because the undisputed evidence at trial demanded a finding that Roger assumed the risk of his injuries. We agree.

“Assumption of risk means the plaintiff is fully aware of the dangerous defect or condition caused by defendant’s negligence but freely chooses to proceed nonetheless.” Therefore, a plaintiffs recovery for an injury caused by a defective product is precluded under the affirmative defense of assumption of the risk if the defendant proves that the plaintiff “without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” “In asserting a defense of assumption of the risk, a defendant must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.”

Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiffs part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.

Finally, “[ajlthough assumption of the risk is ordinarily a jury question, in plain, palpable, and indisputable cases resolution of the issue by a jury is not required.”

Here, the jury found that the Rhino’s defective design proximately caused Roger’s injuries, and Yamaha does not appeal this portion of the verdict. Regardless, if Yamaha established that Roger assumed the risks associated with operating the doorless vehicle, then Roger cannot recover. Construed in favor of the verdict, we conclude that Yamaha demonstrated that Roger had actual and subjective knowledge of the specific danger associated with the doorless design of the Rhino, that he fully appreciated the risks associated therewith, and that he voluntarily exposed himself to those risks.

Roger initially planned to purchase an all-terrain vehicle (“ATV”), but changed his mind at the dealership when he saw the doorless Rhino because “given [his] size, it would be easy to get in and out of,” and “[i]t would let [him] get in and out of the vehicle easily so that [he] wouldn’t have to step over the seat like [he] would in an ATV” Roger agreed at trial that the Rhino was useful to him specifically “because it had no door.”

Roger also testified that he understood the warnings and instructions posted on the vehicle, which directed occupants to keep their limbs inside the vehicle at all times, and that he read the operator’s manual:

Q: . . . Let’s talk about the operator’s manual. You read that manual when you got the vehicle, correct?
A: Correct. . . .
Q: So you got the chance to read the manual, including the safety warnings about not using too much speed or too much steering, correct?
A: Correct.
Q: You knew that was to avoid a tip-over, didn’t you?
A: Yes.
Q: And you saw the warnings about not sticking out your arms or legs in the event of a rollover that was, in other words, to let the occupant protection system of the vehicle do its job, correct ?
A: Correct.
Q: And you agreed with all those warnings in the manual, fair to say?
A: Yes.
Q: Fair to say that you knew that you could [injure] yourself if you did not follow those warnings, correct?
A: Correct.
Q: Fair to say it was important to you to operate the Rhino in a way consistent, that is, following the directions and safety warnings and manual, correct?
A: Correct.
Q: Because you knew those were important to follow to protect yourself against the risks of operating the Rhino that you were fully aware of; isn’t that right?
A: Correct.

According to Roger, when the salesman reviewed the warning stickers on the Rhino regarding keeping limbs inside the vehicle and avoiding sharp or fast turns to prevent a rollover, Roger “laughed . . . and said, ‘Well, man, common sense would tell you not to do that, right?’ ” Roger conceded that because the Rhino lacked doors, if the vehicle rolled over, “you’re going to grab onto something” and “would brace with your feet up on the floorboard . . . if [you] had time. . . .”

At the time of this incident, Roger had been operating his Rhino for approximately seven months. Roger agreed that he had “some significant experience . . . riding off-road vehicles before [he] got the Rhino,” including motorcycles, a Yamaha ATY a Yamaha four-wheeler, three backhoes, and multiple tractors, testifying as follows:

Q: And from operating that backhoe, you know to stay with the vehicle if it tips over because your life depends on that. Never mind an injury, correct?
A: Correct. ...
Q: And you know that if you’re buckled in, you do not jump, you do not stick your hands out or your feet out; isn’t that right?
A: If you’re buckled in, you’re not going to be able to jump off, no. But as far as sticking hands and stuff out, I mean, probably not intentionally you ’re not going to do it.
Q: Well, you know from your experience with that backhoe that because it’s got a roll bar and a seat belt, if it rolls over, you stay within the vehicle and you do not stick out your hands or feet; isn’t that right?
A: Yes.
Q: Because you know what will happen to those legs or feet if you stick them out when it rolls? They get crushed, correct?
A: Yes.
Q: In fact, fair to say that it’s second nature to you that if the tip-over occurs, the best practice is to stay with the vehicle and stay within the occupant protection system of the vehicle, correct?
A: Correct. Stay in it to the best of your ability, yes.
Q: By bracing yourself, holding on and bracing; isn’t that right?
A: Yes.
Q: And that’s just as true with the Rhino, isn’t it?
A: I assume so, yes.
Q: So let’s be clear. All that experience with the backhoe may not tell you exactly how the Rhino handles, but it certainly tells you what to do in the event of a tip-over; isn’t that right?
A: Yes. There are warning labels on it, yes.

Thus, the evidence established that Roger, who had significant experience operating the Rhino and other open-air vehicles, was clearly aware of the potential danger of injury to his limbs during a rollover in the doorless Rhino. Nevertheless, he deliberately chose to operate the vehicle despite the risk of injury because the Rhino afforded him easy ingress and egress.

On appeal, the McTaggarts argue that Roger, unlike Yamaha, did not know or appreciate that he might involuntarily put his foot out of the vehicle in the event of a rollover to avoid an injury. This argument is belied by Roger’s testimony in which he acknowledged that if his Rhino rolled over, he should attempt to brace his feet on the floorboard “if [he] had time” and that a person operating a doorless vehicle should stay within the protection system of the vehicle “to the best of [his] ability.” Roger further acknowledged that an operator would “probably not intentionally” stick his hands or feet out of a doorless vehicle during a rollover. Each of these statements indicates Roger’s knowledge that it might not be possible for an operator to keep his legs inside of the vehicle during a rollover. Therefore, pretermitting whether Yamaha’s argument regarding an individual’s instinct to use his feet or hands to brace himself during a rollover demonstrates a misunderstanding regarding the risks that Roger voluntarily assumed, the record does not support such an argument.

Having considered the evidence, we conclude that the trial court erred by denying Yamaha’s motions for directed verdict and judgment notwithstanding the verdict because the evidence demonstrated that Roger, “without coercion of circumstances, [chose] a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” Given the evidence in this case,

the only conclusion that can be reached is that this is a case in which it is plain, palpable, and indisputable that [Roger] assumed the risk of [his] injuries, as a matter of law. . . . Accordingly, the judgment must be reversed and the case remanded to the trial court with direction to enter judgment granting appellants’ motion for a directed verdict.

2. Based on our holding in Division 1, we need not address Yamaha’s remaining enumerations.

Judgment reversed and case remanded.

Miller, P. J., and Ellington, J., concur.

Decided November 15, 2011

Reconsideration denied December 1, 2011

Jones Day, David M. Monde, for appellants.

Childers, Schlueter & Smith, C. Andrew Childers, for appellees.

       A Rhino is a four-wheeled, open-air, off-road vehicle.

       Glenda’s claim was for loss of consortium.

       (Punctuation omitted.) ASC Constr. Equip. USA v. City Commercial Real Estate, 303 Ga. App. 309 (693 SE2d 559) (2010).

       The trial court granted the McTaggarts’ motion in limine to exclude any evidence suggesting that Roger’s manner of driving caused the accident or contributed to his injuries.

       The jury declined to award punitive damages.

       (Punctuation omitted.) Cotton v. Bowen, 241 Ga. App. 543, 544 (524 SE2d 737) (1999).

       (Punctuation and footnote omitted.) Muldovan v. McEachern, 271 Ga. 805, 807 (2) (523 SE2d 566) (1999).

       (Punctuation and footnote omitted.) Garner v. Rite Aid of Ga., 265 Ga. App. 737, 739-740 (595 SE2d 582) (2004).

       (Punctuation omitted; emphasis in original.) Hillman v. Carlton Co., 240 Ga. App. 432, 434 (1) (522 SE2d 681) (1999).

       (Citation omitted.) Young v. Brandt, 225 Ga. App. 889, 891 (3) (485 SE2d 519) (1997). See also Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 835 (1) (479 SE2d 435) (1996) (holding that the risk-utility analysis adopted in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994) did not bar summary judgment based on assumption of the risk).

       The jury also found in favor of the plaintiffs on their “negligence claims,” but did not find that Yamaha’s failure to adequately warn proximately caused Roger’s injuries.

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

       The McTaggarts presented evidence that Yamaha received customer complaints about leg injuries during rollover accidents in Rhinos and was aware of the results of simulation testing, which revealed that approximately half of the participants instinctively put their foot out of the vehicle when the Rhino tipped over. According to one Yamaha employee, during one seven-month period, there were approximately either 50 or 200 reports of injuries to Rhino operators during rollovers.

       (Punctuation omitted.) Young, 225 Ga. App. at 892 (3).

       Id. at 893 (3). See Kane v. Landscape Structures, 309 Ga. App. 14, 18-20 (709 SE2d 876) (2011) (affirming the grant of summary judgment to the defendant because the child plaintiff voluntarily assumed the specific risk of climbing on and falling from the elevated roof of a playground structure). Compare Hillman, 240 Ga. App. at 433-434 (1) (reversing grant of summary judgment to the defendant because although the evidence established that the plaintiff assumed the general risk of falling off of a forklift, he did not assume the specific risk of being dumped by the forklift when it malfunctioned because of poor maintenance by the defendant).