author: PHIPPS, Presiding Judge.

text:
    A15A2300.
    HOLLOWAY v. THE KROGER COMPANY.
    (782 SE2d 805)
   PHIPPS, Presiding Judge.

Mildred Anne Holloway sued The Kroger Company (“Kroger”) for injuries sustained when she fell at a Kroger grocery store. Following trial, the jury returned a defense verdict. Holloway appeals, asserting that Kroger’s counsel made inappropriate statements during closing argument and that the trial court failed to properly instruct the jury. We affirm.

Construed favorably to the jury’s verdict, the evidence shows that Holloway entered the grocery store on a rainy day on February 5, 2010. As she reached for a shopping cart in the store foyer, she slipped and fell, landing on her back. The store manager who responded to the scene noticed that water had dripped onto the floor from the shopping carts, and Holloway testified that the floor was “slippery” and “shiny.” According to the manager, Kroger’s “rainy day measures” were in place and being followed at the time. A “greeter” was stationed in the foyer to keep the area clean, and several “wet floor” caution signs were located near the entrance. Kroger employees had also placed mats in the foyer to help keep the area dry, although no mats were next to the shopping carts where Holloway fell. The manager further testified that Kroger had installed special, slip-resistant flooring in the foyer.

Holloway brought suit, alleging that Kroger negligently failed to exercise ordinary care to keep its premises and approaches safe. The jury rejected Holloway’s negligence claim, and this appeal followed.

1. Holloway asserts that she is entitled to a new trial because defense counsel made two inappropriate statements during closing argument. We disagree.

(a) Holloway first complains about the following portion of defense counsel’s argument:

This is [Holloway’s] one day in court. It’s her opportunity to come before you and prove her case. And I guarantee you if those [safety] measures that were in place on F ebruary 5th of 2010 and being followed were not ordinary care, were not ordinary care, you would have heard from some witness in that chair, some safety expert who would have come in, somebody like Mr. Carlisle who was Juror No. 12 who has a risk management firm who goes around and advises companies on what they can do to reduce risk. He said, yeah, one of the things we do is we talk about people falling and ways to prevent that. You would have heard from him or someone like him about what Kroger should have done on a rainy day, but you didn’t. You didn’t.

According to Holloway, this argument improperly encouraged the jury to rely on Juror No. 12 — “one of their number” — for expert testimony in resolving the case. It is true that “what occur[s] during voir dire is not evidence and therefore should not be raised in closing argument.” Defense counsel’s reference to Juror No. 12’s voir dire responses, therefore, was improper. Holloway, however, did not object to this portion of the argument. And absent an objection, “the standard for reversible error is ‘whether the improper argument in reasonable probability changed the result of the trial.’ ”

The record does not contain a transcript of the jury selection proceedings or evidence as to who was chosen to serve on the panel. But Kroger asserts, and Holloway does not dispute, that Juror No. 12 was stricken from the panel during voir dire. Defense counsel, therefore, did not ask jurors to rely on a panel member for expert assistance. Instead, he discussed the occupation of a person who apparently never made it past voir dire. Holloway has not shown that such discussion impacted the trial result.

Alternatively, Holloway claims that defense counsel should not have suggested that expert testimony on ordinary care, the ultimate issue in the case, would have been admissible. It is well established, however, “that an expert witness may testify even as to the ultimate issue of fact where the inferences to be drawn from the evidence are beyond the ken of jurors.” Depending on the content of the testimony, the trial court might have admitted expert evidence regarding the reasonableness of Kroger’s safety measures. Moreover, counsel’s argument “merely stated what was already clear to the jury, i.e., that no expert testified for [Holloway].” Under these circumstances, Holloway cannot demonstrate that counsel’s comments — even if inappropriate — altered the verdict.

(b) Next, Holloway argues that defense counsel improperly referenced several photographs that her daughter, Denae, took at the scene, but that were not admitted into evidence. Specifically, counsel stated: “[Denae] was there the whole time with her cell phone snapping pictures [and] there were four pictures.” At that point, the trial court interjected: “Put [the pictures] down. . . . They’re not in evidence. Put them down.” When counsel explained that he did not intend to show the pictures to the jury, the trial court responded: “No, you’re not; and you will disregard that because it wasn’t in evidence. If you make another comment, we’re going to have a problem.” Defense counsel then moved on to a different argument.

The record shows that Holloway’s other daughter, Diandra, testified without objection that her sister took pictures of the scene with a cell phone. Although the photographs were not admitted at trial, the evidence supported counsel’s argument that they existed. This argument, therefore, was proper. And once the trial judge became concerned that counsel might display the photographs to the jury, she immediately stepped in, told the jury to disregard the photos, and instructed counsel to move on to a different topic. Holloway did not object to defense counsel’s argument or ask the trial court for further relief, and counsel complied with the trial court’s instruction. Given the judge’s admonition to the jury, her specific instruction that counsel move on, and the fact that counsel never actually displayed the photos to the jury, we find no reasonable probability that any impropriety in counsel’s argument affected the verdict.

2. Holloway claims that the trial court erred by failing to instruct the jury that argument of counsel does not constitute evidence. The record shows, however, that Holloway raised no objection to the court’s instructions. Under these circumstances, reversal results only “where there has been a substantial error in the charge which was harmful as a matter of law.” A charge is harmful as a matter of law if “it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it, or a gross injustice is about to result or has resulted directly attributable to the alleged errors.”

We find no harmful error here. During a preliminary charge at the beginning of trial, the court informed jurors about trial procedures, including closing arguments. The court stated: “After the charge conference, the parties get to talk to you again in what is called closing argument. Just like an opening statement, closing argument is not evidence. . . . What they say isn’t evidence.” The judge did not reiterate this principle in the final jury charge. But she thoroughly discussed the concept of evidence during the final charge, noting that it “includes all the testimony of the witnesses and the exhibits admitted during the trial.” She explained that evidence may be direct, circumstantial, or both, and she outlined the difference between the types of evidence. She also stated that evidence “does not include the questions asked by the lawyers or any objections or any of the court’s statements or comments.”

Decided February 12, 2016.

John S. LaRose, for appellant.

Douglas A. Wilde, for appellee.

Preliminary instructions given before the presentation of evidence generally “cannot serve as a substitute for complete jury instructions required... after closing arguments are completed.” In analyzing the potential harm caused by an erroneous jury charge, however, our Supreme Court has considered whether language in a preliminary charge mitigated any prejudice. Viewed as a whole, the trial court’s preliminary and final instructions defined evidence for the jury, explained the purpose of closing statements, and cautioned that comments and questions from the lawyers and the judge are not evidence. Even if the final charge was insufficient, it was not “so blatantly prejudicial as to deprive [Holloway] of a fair trial.” Accordingly, this claim of error lacks merit.

Judgment affirmed.

Doyle, C. J., and Mercier, J., concur.

        See Fuller v. Flash Foods, 298 Ga. App. 217 (679 SE2d 775) (2009) (on appeal from a jury’s verdict, we construe the evidence with every presumption and inference in favor of upholding the verdict). .

        Joseph v. State, 231 Ga. App. 399, 403 (2) (498 SE2d 808) (1998) (citation omitted).

        Stolte v. Fagan, 291 Ga. 477, 483 (2) (b) (731 SE2d 653) (2012) (citation and punctuation omitted).

         See All Fleet Refinishing v. West Ga. Nat. Bank, 280 Ga. App. 676, 681 (4) (a) (634 SE2d 802) (2006) (appellant bears burden of showing error affirmatively in the record).

         Fouts v. Builders Transport, 222 Ga. App. 568, 576 (3) (474 SE2d 746) (1996) (citation omitted).

       We recognize that the trial court might have ruled such expert testimony inadmissible. See Hayward v. Kroger Co., 317 Ga. App. 795, 797 (1) (b) (733 SE2d 7) (2012) (trial court properly excluded affidavit of risk management expert because testimony was not necessary for jury to determine whether store’s rainy-day safety procedures were sufficient). But we cannot conclude that expert testimony about the procedures and/or flooring here would have been inadmissible as a matter of law.

        Vega v. La Movida, 294 Ga. App. 311, 317 (3) (670 SE2d 116) (2008) (punctuation and footnote omitted).

       See id. (defense counsel’s argument regarding plaintiff’s failure to present expert testimony on sufficiency of security measures was “not so abominably inflammatory and prejudicial as to call for a mistrial”) (punctuation and footnotes omitted).

       See Cooper v. State, 296 Ga. 728, 731 (3) (770 SE2d 597) (2015) (closing argument proper when based on legitimate inferences supported by facts in evidence).

       See Young v. Griffin, 329 Ga. App. 413, 416-417 (2) (765 SE2d 625) (2014) (no reasonable probability that improper argument impacted result, given trial court’s instructions and trial evidence); Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 704 (2) (746 SE2d 173) (2013) (improper argument did not affect result in light of evidence and counsel’s clarifying comments).

       OCGA § 5-5-24 (c); see also Shilliday v. Dunaway, 220 Ga. App. 406, 411 (8) (469 SE2d 485) (1996) (citation and punctuation omitted) (discussing OCGA § 5-5-24 (c)).

        Shilliday, supra (citation and punctuation omitted).

        Tillman v. Massey, 281 Ga. 291, 294 (1) (637 SE2d 720) (2006) (citation and punctuation omitted).

       See Griffith v. State, 264 Ga. 326, 327 (2) (444 SE2d 794) (1994) (although trial court failed to include several key instructions in final charge, no harmful error where preliminary charge included required instructions).

        Shilliday, supra.


source: Caselaw Access Project

author: MCMILLIAN, Judge. RICKMAN, Judge,

license: Public Domain

text:
    A15A1631.
    BARNES v. THE STATE.
    (782 SE2d 811)
   MCMILLIAN, Judge.

Anthony Barnes appeals the denial of his motion for new trial after a jury convicted him of statutory rape, enticing a child for indecent purposes, child molestation, and contributing to the delinquency of a minor.

Viewed in the light most favorable to the verdict, the evidence shows that on the evening of September 10, 2012, the 13-year-old victim, V. K., argued with her mother. Later, V. K., who was still angry, wrote her mother a note, left the house, and ran to a friend’s house. After visiting another friend’s house, V. K. began to walk back home some time around midnight. On her way home, V. K. went to a gas station where she heard a man ask where she was going. When V. K. replied, “nowhere,” the man invited her to go with him, and she agreed. V. K. described this man as dark-skinned with facial hair and a hat, and she later picked a picture of Barnes from a photographic lineup as the man she met that night.

Barnes and V. K. got into a burgundy SUV with another, lighter-skinned man and drove to an apartment building where the men obtained some marijuana while V. K. waited in the car. Afterward, the three went to a hotel room where the men smoked marijuana and Barnes asked V. K. to perform a lap dance. Both men then engaged in sexual intercourse with V. K. The next morning, after making V. K. shower and flush her underwear down the toilet because they “[were] not going to jail,” they dropped V. K. back at the gas station where they had picked her up. She walked home, crawled into the back seat of her mother’s car, and went to sleep. V. K.’s mother discovered her there, and V. K. told her mother that she had had sex with two men. Her mother then called the police and took V. K. to the hospital.

Subsequently, V. K. told police what had happened and led them to the hotel room where Barnes and the other man had taken her. A check of the reservation records revealed that Barnes had rented the room from September 9-12, 2012, and the hotel clerk provided the police with a copy of the identification he used at the time he checked in. The identification card contained Barnes’s name, birth date, and address.

On appeal, Barnes argues that the trial court erred in failing to charge the jury that they could not consider his choice not to testify in any way in reaching their verdict. Alternatively, he asserts that his trial counsel was ineffective in failing to object to the omission of this charge. Barnes further contends that the trial court erred in preventing his counsel from questioning a potential juror about the juror’s interest in working in law enforcement.

1. Barnes first argues that the trial court committed reversible error in failing to give the jury the complete pattern jury charge he requested regarding his decision not to testify in his own defense at trial. We agree.

Prior to trial, Barnes’s counsel submitted a written request for the pattern jury charge on a defendant’s choice not to testify, by referencing the pattern charge section number, § 1.32.10, in accordance with the “Criminal Case Management Order” issued by the trial court. That charge reads:

The defendant in a criminal case may take the stand and testify and be examined and cross-examined as any other witness. You should evaluate such testimony as you would that of any other witness. However, the defendant does not have to present any evidence nor testify. If the defendant chooses not to testify, you may not consider that in any way in making your decision.

(Citations and punctuation omitted.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.32.10 (4th ed.). At trial, however, the trial court charged only the first three sentences of the pattern charge and failed to give the last sentence instructing the jurors that they may not consider Barnes’s decision not to testify “in any way in making [their] decision.” Id. Barnes’s counsel failed to object to the omission of this language, explaining at the hearing on the motion for new trial that he “just missed it.”

Because Barnes’s counsel failed to object to the incomplete charge, we are precluded from appellate review of the charge unless the omission constitutes plain error as set out by our Supreme Court in State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011). The Court explained that test as follows:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation, punctuation and emphasis omitted.) Id. at 33 (2) (a). See United States v. Olano, 507 U.S. 725 (113 SCt 1770, 123 LE2d 508) (1993). In other words, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” (Citation and punctuation omitted.) Guajardo v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011). “Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Kelly, 290 Ga. at 33 (2) (a).

Turning to the first prong of the Kelly test, the United States Supreme Court has held that “a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify” by instructing the jury to draw no adverse inference from the defendant’s election not to testify. Carter v. Kentucky, 450 U.S. 288, 305 (III) (101 SCt 1112, 67 LE2d 241) (1981). As the Court explained, “[n]o judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.” Id. at 303 (II) (B).

But even prior to the United States Supreme Court’s holding in Carter, the Supreme Court of Georgia held in Clay v. State, 236 Ga. 398, 399 (224 SE2d 14) (1976), that when a defendant makes a timely request for a charge that his failure to testify in his own defense shall not create a presumption against him, “it is error for the trial judge to fail to give it,” and the Court found that such an error “requires a new trial.” See Murphy v. State, 270 Ga. 880, 880 (515 SE2d 148) (1999); Culbertson v. State, 193 Ga. App. 9, 11 (6) (386 SE2d 894) (1989).

Thus, we find that the trial court erred in omitting the portion of the pattern jury charge instructing the jury not to consider his failure to testify “in any way.” The State argues that the omitted language does not constitute plain error because the trial court covered the no adverse inference language in its preliminary charge. We disagree based on our review of the record. Although the trial court charged the jury in its pretrial instructions that the defendant had the absolute right to remain silent and the jury was not permitted to draw any inference of guilt from his exercise of that right, those instructions did not specifically address the issue of Barnes’s testimony at trial. The trial court never charged the jury that it could not consider his decision not to testify at trial in any way or that it could draw no inference from that decision during its deliberations. “A jury might well think that a defendant’s right not to testify means merely that he cannot be called as a witness, leaving it to draw such conclusions from his silence as it felt warranted. An instruction not to consider his failure to testify precisely forbids drawing inferences.” United States v. Brand, 80 F3d 560, 567 (IV) (B) (1st Cir. 1996).

Likewise, we find that Barnes has met the second prong of the plain error test. This error, even if unintentional, is clear and not subject to reasonable dispute under the authority of Carter, Clay, and Murphy.

Turning to the third prong, we must determine whether this error affected Barnes’s substantial rights, which in the ordinary case requires Barnes to show that the error likely affected the outcome of the proceeding. See Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013). In Carter, the Court eloquently explained that the privilege against compulsory self-incrimination

reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play...; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.

(Citation and punctuation omitted.) Carter, 450 U.S. at 299-300 (II) (B). Thus, a no-adverse-inference instruction is constitutionally required, upon request, because “when the jury is left to roam at large with only its untutored instincts to guide it,” it “may well draw adverse inferences from a defendant’s silence.” Id. at 301 (II) (B). That is because “too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are guilty of crime.” (Citation and punctuation omitted.) Id. at 302 (II) (B). Similarly, our Supreme Court has recognized that requiring a no adverse inference charge “enforces the substantial importance of a criminal defendant’s Fifth Amendment privilege and recognizes the impossibility of determining post-trial what adverse inference of guilt the jury may have drawn from the defendant’s silence.” Murphy, 270 Ga. at 880. Accordingly, under the circumstances of the case and the recognized tendency of jurors to infer that a nontestifying defendant may be guilty of a crime, the error presented here must be considered to have affected Barnes’s “substantial rights” such that the third prong of the Kelly test is met. See Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012) (verdict form that directed jury to find defendant not guilty beyond a reasonable doubt affected defendant’s substantial rights).

As to the fourth prong of the Kelly test, an appellate court has the discretion to remedy the error upon a determination that “the error seriously affects the fairness, integrity, or public reputation of the proceedings below.” Kelly, 290 Ga. at 33 (2) (a). We think that the error rises to that level here where the privilege against compulsory self-incrimination has a long and storied history in American and English criminal jurisprudence. See Carter, 450 U.S. at 299 (II) (B), n.14. Moreover, our Supreme Court recognized that a no-adverse-inference instruction was required upon proper request five years before the United States Supreme Court’s opinion in Carter. Clay, 236 Ga. at 398-99. The failure to give the instruction subverts the privilege against compulsory self-incrimination and not only undermines the fairness of the proceeding, but public confidence in that process. Accordingly, Barnes must be awarded a new trial. See Cheddersingh, 290 Ga. at 686 (plain error required new trial).

2. Given our holding in Division 1 above, we need not address Barnes’s remaining enumerations of error.

Judgment reversed.

Ray, J., concurs. Rickman, J., concurs specially.

RICKMAN, Judge,

concurring specially.

Because the Supreme Court of Georgia’s holding in Murphy v. State, 270 Ga. 880 (515 SE2d 148) (1999), mandates that the failure to include the charge at issue here is “reversible error per se,” I am constrained to concur with the majority.

Notably, Murphy predates State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011). But I cannot reconcile Kelly’s requirement to assess whether this error “affected the outcome of the trial court proceedings,” with the Court’s declaration in Murphy that it is impossible to do so. See Murphy, 270 Ga. at 880 (recognizing “the impossibility of determining post-trial what adverse inference of guilt the jury may have drawn from the defendant’s silence”). Murphy demands that we presume the trial court’s failure to give this charge was harmful, precluding any consideration of the otherwise substantial and compelling evidence in this case, much of which was not necessary to and was not included in the majority opinion.

Decided February 15, 2016.

Lynn M. Kleinrock, for appellant.

PaulL. Howard, Jr., District Attorney, Sheila E. Gallow, Joshua D. Morrison, Assistant District Attorneys, for appellee.

       See, e.g., Mickens v. State, 277 Ga. 627, 627-28 (593 SE2d 350) (2004).

       Although Barnes does not raise the sufficiency of the evidence on appeal, we find that the evidence at trial was sufficient to support his convictions beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       SeeOCGA § 24-5-506 (b) (“The failure of an accused to testify shall create no presumption against the accused. .. .”).

       Moreover, we note that in discussing with Barnes his decision whether to testify in the case, the trial court asked him if he understood “that if you choose not to testify that I will instruct the jury that they cannot hold your silence against you in any way?”

       Compare Bigby v. State, 146 Ga. App. 500, 501 (3) (246 SE2d 496) (1978) (no reversible error in failing to grant defense’s written request to give instruction in final charge that defendant’s failure to testify in his own favor shall not create any presumption against him, where trial judge gave defense’s “pre-evidentiary written request to charge the jury on this subject and simply refused to recharge the jury in his final instructions”) (emphasis supplied).


author: Boggs, Judge.

text:
    A15A2036.
    COWART v. SCHEVITZ.
    (782 SE2d 816)
   Boggs, Judge.

In this trip and fall action, the defendant, Joseph Cowart, moved for summary judgment, asserting that the plaintiff, Ada Schevitz, failed to exercise ordinary care for her own safety, and that pursuant to OCGA § 44-7-14 he is an out-of-possession landlord and not liable to third persons for the use of the property by his tenant. The trial court denied Cowart’s motion but certified its decision for immediate review, and this court granted his application for interlocutory appeal. Because Cowart was entitled to summary judgment, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

(Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776) (2015). So viewed, the evidence showed that Cowart leased commercial property he owned to the operators of a restaurant. In October 2010, the lease was assigned to the operator of Asian Buffet through a note on the last page of the lease that it was being assigned and accompanying signatures of the original lessees, the new assignee, and Cowart.

On January 30, 2011, after dining at the restaurant with her family, Schevitz walked out of the exit door, stepped down off of the sidewalk near the bottom of a ramp and onto the parking lot, fell, and was injured. The ramp had no handrails. Schevitz’s expert averred that the ramp was required by the building code to have railings and that had the “code-required railings been in place (which would have both assisted Ms. Schevitz in walking down ramp and, more importantly, have indicted [sic] a drop-off between the exit area and the ramp), Mrs. Schevitz’s fall would more than likely not have occurred.” It is undisputed that Schevitz was not walking down the ramp when she fell. She testified that she did not “see the step and the drop-off’ because she “wasn’t looking for it.” The photographs in the record reveal that the ramp provides access to the sidewalk in front of the restaurant from the parking lot as a replacement for the one-step up onto the sidewalk.

Schevitz filed a premises liability claim against Cowart and Asian Buffet seeking medical expenses and the costs of litigation. She later settled her claim against Asian Buffet. After some discovery, Cowart moved for summary judgment, and the trial court denied it without comment.

On appeal, Cowart first argues that because he is an out-of-possession landlord, he is not liable to Schevitz. Schevitz counters that Cowart is not an out-of-possession landlord because he “retained the type of control over the property that would deem [him] a typical, in-possession landlord.” She asserts that Cowart’s liability is therefore governed by OCGA § 51-3-1 (duty of owner or occupier of land to invitee). The lease agreement provided that the lessee would maintain the physical condition of the property and perform all maintenance. It also provided that the lessee could relocate the bathrooms, but any additional physical changes were to be approved by the lessor and paid for by the lessee, and that the “[l]essor has the right at any time to inspect the property.” We have held that (Citations and punctuation omitted.) Watts & Colwell Builders v. Martin, 313 Ga. App. 1, 6 (3) (720 SE2d 329) (2011). Schevitz contends that because the lease required Cowart to approve of any physical changes, he maintained control of the premises as would an in-possession landlord. But this court has previously rejected this argument. See Ray v. Smith, 259 Ga. App. 749, 749-750 (577 SE2d 807) (2003). The uncontroverted evidence here showed that Cowart parted with possession of the leased premises though retaining the right of inspection. He is therefore an out-of-possession landlord. See Watts, supra.

landlords still fully part with possession of leased premises when they retain limited entry or inspection rights for landlord-related purposes. Such limited rights do not evidence such dominion and control of the premises so as to vitiate the landlord’s limited liability imposed by OCGA § 44-7-14 and replace it with the liability imposed by OCGA § 51-3-1. However, if the landlord undertakes to inspect the property, he has a duty to repair any unsafe conditions which should have been discovered in the inspection. To say otherwise would be to impose absolute liability upon landlords for all defective conditions which could have been repaired before the injury.

Cowart argues that as an out-of-possession landlord, he cannot be liable. The tort liability of an out-of-possession landlord is governed by OCGA § 44-7-14. That Code section provides:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

Generally, “[t]he liability of a landlord for defective construction exists only in cases where the structure is built by him in person or under his supervision or direction.” (Citation omitted.) The Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988); see also Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299, 301-302 (565 SE2d 517) (2002) (general rule of OCGA § 44-7-14 does not apply where landlord did not construct premises with defective step). However, the Supreme Court of Georgia in Flagler, supra, created an exception to this rule:

If a building were defectively constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created, he would be answerable to the tenant, or to any one lawfully on the premises by invitation of the tenant for injuries sustained by reason of his failure to put the premises in a safe condition, if the person sustaining the injuries could not have avoided the same by the exercise of ordinary care.

(Citation and emphasis omitted.) 258 Ga. at 337 (2).

With regard to defective construction by a predecessor-in-title, our court has held that an out-of-possession landlord

may be held liable only for those structural defects that would be discovered during a pre-purchase building inspection. Such out-of-possession landlord is not liable for all defects because ordinary care in the fulfillment of the landlord’s duty to keep the premises in repair does not embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein. This would be but to place upon the landlord an absolute duty to rent premises free from latent defects. It follows that a proper application of the landlord’s duty to inspect premises does not, under any theory, result in making the landlord liable for a latent defect in the premises, simply because it existed at the time of the lease.

(Citation, punctuation and footnote omitted.) Rainey, supra, 255 Ga. App. at 301-302.

The evidence here showed that the ramp was not built by Cowart or Asian Buffet but by a prior lessee who did not obtain Cowart’s approval before construction. Because the ramp was not constructed by Cowart nor constructed under his supervision or direction, liability is precluded under OCGA § 44-7-14. In an attempt to fall within the Flagler exception, Schevitz points to Cowart’s deposition testimony that he was aware of the ramp on the occasions he entered the restaurant to pick up rent payments. But we have held this exception inapplicable and concluded that “there is no exception[,] where... the out-of-possession landlord merely retained the right to approve the tenant’s construction of an improvement to the premises.” Cowart v. Crown American Properties, 258 Ga. App. 21, 24 (3) (572 SE2d 706) (2002). Merely viewing a ramp while picking up rent simply cannot be equated with a pre-purchase building inspection.

Even if the predecessor-in-interest exception of Flagler did apply here, Cowart would still be entitled to summary judgment. While Cowart undoubtedly knew about the ramp and sidewalk, that they constituted a structural defect was not obvious to him, unlike the alleged defect in Flagler, supra, in which the exception to OCGA § 44-7-14 was first created. 258 Ga. at 335 (concealed precipice with no barricade or warning and adjacent to a parking lot; plaintiff fell 70 feet to his death). Rather, this case is similar to Rainey, supra, in which the plaintiff fell on a step that she described as unsafe upon exiting a building and her expert testified that the uneven steps and small landing did not comply with the building code. 255 Ga. App. at 299-300. We explained there that the Flagler exception is viable only where a plaintiff can establish the landowner’s superior knowledge of the perilous condition. Id. at 301. We concluded due to nature of the alleged defect (steps unequal as to height, length and width and landing not the same width as door as required by the building code), the case did not come within the narrow exception created by Flagler and rejected the plaintiff’s expert engineer’s opinion that the alleged defect caused the fall. Id. at 302. We explained that “[t]he standard to which we hold the out-of-possession landlord is not what defect could have been discovered after a fall — with the benefit of hindsight and an examination of the specific scene — but what defect would have been discovered during a routine building inspection.” Id.

Decided February 15, 2016

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, J. Holder Smith, Jr., Leslie M. Kennerly, for appellant.

The Helms Law Firm, J. Jeffrey Helms; The Douglas Law Firm, James E. Douglas, Jr.; Slover, Prieto, Marigliano & Holbert, William F. Holbert, for appellee.

There is no evidence to show that Cowart knew that the building code required a rail for the ramp prior to Schevitz’s injury. He did not inspect it or observe the manner in which it was constructed, and there was no evidence that the alleged defect was one that would have been discovered routinely. See Ray, supra, 259 Ga. App. at 751 (although landlord was aware of ramp, he did not inspect or observe its construction, and was therefore not liable for injuries caused by dangerous condition of which he had no notice). Liability is therefore precluded under the general rule of OCGA § 44-7-14, and Cowart is entitled to summary judgment.

Judgment reversed.

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

       Schevitz deposed that she stepped off of the sidewalk and onto the even pavement of the parking lot, and indicated on the photograph of the entry and exit to the restaurant that she stepped onto an area at the bottom of the ramp. She stated further that she was aware that there was a step-up from the parking lot onto the sidewalk from her previous visit to the restaurant two weeks before her fall.

       Cowart’s remaining arguments are rendered moot by our reversal here.


author: ANDREWS, Presiding Judge.

text:
    A15A2184.
    FAIRGREEN CAPITAL, LLC v. CITY OF CANTON.
    (782 SE2d 46)
   ANDREWS, Presiding Judge.

Fairgreen Capital, LLC, a property developer, sued the City of Canton for breach of contract claiming the City failed to repay $564,312.44 in funds that Fairgreen advanced to the City under a written agreement governing construction of a public road on City property benefitting a Fairgreen development. The trial court granted summary judgment in favor of the City on grounds that, under the Georgia Constitution (Article IX, Section V, Paragraph I), the funds owed by the City under the agreement constituted an illegal and void debt. Fairgreen appeals. For the following reasons, we affirm in part and reverse in part.

1. Article IX, Section V, Paragraph I (a) of the Georgia Constitution prohibits “any county, municipality, or other political subdivision” of Georgia from incurring liability for any “new debt without the assent of a majority of the qualified voters of such county, municipality, or political subdivision voting in an election held for that purpose as provided by law.” Under this provision, “new debt” is a liability that is “not to be discharged by money already in the treasury, or by taxes to be levied during the year in which the contract under which the liability arose was made.” Greene County School Dist. v. Circle Y Constr., 291 Ga. 111, 112 (728 SE2d 184) (2012). “Therefore, if a municipality undertakes an obligation that extends beyond a single fiscal year, then a new ‘debt’ has been incurred within the meaning of the Georgia Constitution and requires voter approval.” Barkley v. City of Rome, 259 Ga. 355, 355 (381 SE2d 34) (1989). A contract incurring such “new debt,” which is entered into by a municipality without voter approval, is void as a matter of law. Greene County School Dist., 291 Ga. at 112.

The agreement at issue between Fairgreen and the City — called a “Cost Participation and Reimbursement Agreement” — provided that Fairgreen was the owner of a development which stood to benefit from a road, Reservoir Drive, to be constructed by the City on City property as a “system improvement” included in the “Capital Improvement Plan of the City... Road Impact Fee Program.” The agreement recognizes that the City has a

Road Impact Fee Program which allows it to collect impact fees from builders for placement in a Road Impact Fee Fund and which allows [the City] to reimburse developers and owners with funds from said Fund when those developers and owners advance funds to [the City] for the purpose of paying [the City’s] share or the developers’ or owners’ share of the cost of building a system improvement included in the City[’s] . . . Capital Improvement Plan for Roads.

The agreement provided that the City was responsible for paying the cost of constructing the portion of Reservoir Drive located on City property; that Fairgreen agreed to advance funds to the City necessary to pay the cost of constructing Reservoir Drive on City property, an amount estimated to be $2,088,403; and that the City agreed to reimburse Fairgreen for the funds advanced for the construction of Reservoir Drive on City property. The agreement states that the City “has allocated $2,500,000.00 of its Road Impact Fee Fund for construction of Reservoir Drive”; that the City “agrees that it shall be ... responsible for paying the cost of construction of Reservoir Drive on [City] [pjroperty up to $2,500,000.00”; and that “[the City] agrees to reimburse Fairgreen from the Road Impact Fee Fund for the actual amount of funds advanced by Fairgreen up to a maximum of $2,500,000.00 for construction of Reservoir Drive on the [City] [p]roperty.” As to the method of advancing funds, the agreement provides that, every 30 days, the City shall submit to Fairgreen invoices that the City has received from the road contractor for completed road work, and that, within 15 days of receipt of those invoices, Fairgreen shall advance to the City funds to pay the invoices. As to the method of reimbursement, the agreement provides that the City will make monthly reimbursements to Fairgreen “up to a maximum of fifty percent of the funds then available in the Road Impact Fee Fund.” The agreement recognizes that “there will be months when fifty percent of the funds in the Road Impact Fee Fund will be insufficient to reimburse Fairgreen for the total payments for invoices previously advanced by Fairgreen.” In that case, the agreement provides that “[the City] may make up any shortfalls in future monthly reimbursement payments made to Fairgreen.” The agreement provides that the City “agrees to fully reimburse Fairgreen for all advance payments made by Fair-green to [the City] for construction of Reservoir Drive on the [City] [p]roperty not later than five (5) years from the Construction Start Date.” Finally, the agreement provides that, when the City has fully reimbursed Fairgreen for funds advanced to the City to construct Reservoir Drive on the City property, the City shall determine how much, if any, of the $2,500,000 Road Impact Fee Fund for Reservoir Drive remains unspent, and pay Fairgreen an amount of money equal to 33 percent of the unspent funds.

The construction start date for Reservoir Drive was October 1, 2006. Fairgreen’s September 2014 complaint shows that, pursuant to the agreement, it advanced the City $1,146,529.53 to construct Reservoir Drive, and that Fairgreen remained entitled to reimbursement for advancements made pursuant to the agreement in the amount of $546,312.44. It is undisputed that from September 18, 2007 to March 4, 2011, the City made four payments to Fairgreen which totaled $498,592.19.

In response to Fairgreen’s amended complaint, the City moved for summary judgment on the breach of contract claim on the basis: (1) that funds advanced by Fairgreen to the City, which the City had not reimbursed, constituted “new debt” within the meaning of Article IX, Section V, Paragraph I (a) of the Georgia Constitution and required voter approval; (2) that no such voter approval was obtained; and (3) that the contract creating the “new debt” without voter approval was void as a matter of law. Fairgreen contended in response to the City’s motion for summary judgment that the debt incurred by the City under the agreement was not illegal or void “new debt” within the above-stated constitutional provision because the agreement was a private impact fee agreement enforceable under the Georgia Development Impact Fee Act (DIFA) (OCGA §§ 36-71-1 to 36-71-13).

We find that, regardless of whether the agreement at issue was authorized by DIFA, the agreement clearly arranged a loan from Fairgreen to the City for funds necessary to construct Reservoir Drive on the City property and created a debt which the City was obligated to repay regardless of whether the City had sufficient impact fees to reimburse Fairgreen. The City’s unpaid debt obligation, which Fairgreen seeks to collect in the present suit, constituted a “new debt” obligation incurred by the City which extended beyond a single fiscal year and required voter approval under Article IX, Section V, Paragraph I (a) of the Georgia Constitution. In the absence of voter approval, the contract creating the debt was void as a matter of law. Greene County School Dist., 291 Ga. at 112; see H. G. Brown Family Limited Partnership v. City of Villa Rica, 278 Ga. 819, 819-821 (607 SE2d 883) (2005) (contract entered into by municipality in excess of authority to enter contracts is void; void contract not validated by part performance or detrimental reliance). The trial court correctly granted the City’s motion for summary judgment on the breach of contract claim.

Decided January 26, 2016

Reconsideration denied February 17, 2016.

McMichael & Gray, Frederick G. Boynton, for appellant.

Dyer & Rusbridge, Robert M. Dyer, for appellee.

2. We reverse the trial court to the extent it granted summary judgment in favor of the City on Fairgreen’s negligent misrepresentation claim. In its motion for summary judgment in response to the amended complaint, the City did not move for judgment on the negligent misrepresentation claim. The trial court erred by granting summary judgment on an issue not raised in the motion and without giving Fairgreen proper notice that the issue would be considered. Knight v. American Suzuki Motor Corp., 272 Ga. App. 319, 324-325 (612 SE2d 546) (2005).

Judgment affirmed in part and reversed in part.

Branch and Peterson, JJ., concur.

       Fairgreen also sued the City on the basis of negligent misrepresentation.

       Fairgreen does not dispute facts produced by the City in an affidavit in support of the motion for summary judgment showing that no voter approval was obtained for the debt liability incurred by the City pursuant to the agreement.

       Under OCGA § 36-71-3 (a), “[mjunicipalities and counties which have adopted a comprehensive plan containing a capital improvements element are authorized to impose by ordinance development impact fees as a condition of development approval on all development pursuant to and in accordance with the provisions of this chapter.” In assessing these impact fees, “a municipality must give a developer who constructs ‘system improvements’ that are required or accepted by the municipality impact fee credits for the present value of such improvements.” Fulton Greens, Limited Partnership v. City of Alpharetta, 272 Ga. App. 459, 461 (612 SE2d 491) (2005); OCGA § 36-71-7 (a). Moreover, OCGA § 36-71-7 (b) provides:
      In the event that a developer enters into an agreement with a... municipality to construct, fund, or contribute system improvements such that the amount of the credit created by such construction, funding, or contribution is in excess of the development impact fees which would otherwise have been paid for the development project, the developer shall be reimbursed for such excess construction, funding, or contribution from development impact fees paid by other development located in the service area which is benefitted by such improvements.
      Finally, as to the creation of private agreements under DIFA, OCGA § 36-71-13 (b) provides:
      Nothing in this chapter shall be construed to prevent or prohibit private agreements between property owners or developers and municipalities... in regard to the construction or installation of system improvements and providing for credits or reimbursements for system improvement costs incurred by a developer including interproject transfers of credits or providing for reimbursement for project improvement costs which are used or shared by more than one development project.

        Even assuming, without deciding, that the agreement at issue was enforceable under DIFA, nothing in DIFA conflicts with the provision of the Georgia Constitution, Art. IX, Sec. V, Par. I (a), requiring that any “new debt” which the City undertook as a liability pursuant to the agreement receive voter approval.


text:
    A15A2270.
    COMPLETE WIRING SOLUTIONS, LLC et al. v. ASTRA GROUP, INC. et al.
    (781 SE2d 597)
   ANDREWS, Presiding Judge.

Complete Wiring Solutions, LLC (CWS), and Bill Worley Plumbing, Inc. (BWP), second tier subcontractors on a construction project on public property, filed a complaint pursuant to OCGA §§ 36-91-90 to 36-91-95 seeking to recover against a payment bond for amounts due for labor and materials provided on the project. After a bench trial, CWS and BWP appeal from the judgment entered by the trial court in favor of the defendants/appellees. Because the appeal to this Court contains no enumeration of errors filed pursuant to OCGA § 5-6-40, the appeal is dismissed.

OCGA § 5-6-40 of the Appellate Practice Act (APA) provides:

The appellant and cross appellant shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer to portions of the record on appeal. It shall be served upon the appellee or cross appellee in the manner prescribed in Code Section 5-6-32, need not have approval of the trial court, and when filed shall become a part of the record on appeal. The appellate court, by rule, may permit the enumeration to be made a part of the brief.

As to the enumeration of errors required by OCGA § 5-6-40, Rule 22 (a) of the Georgia Court of Appeals provides that an enumeration of errors separate from the appellant’s brief is not required, and that the enumeration of errors shall be filed as “Part 2 of the appellant’s brief.” See also Court of Appeals Rule 23 (a) (providing that the appellant’s brief “shall contain as Part 2 an enumeration of errors . . .”). In the present appeal, no enumeration of errors was filed separately or as part 2 of the appellants’ brief. Rather, the appellants’ brief contains: (1) a section captioned “Standard of Review” which states the standard of appellate review and includes a general statement that the judgment is not supported by the evidence and is based on erroneous findings of fact; and (2) a section captioned “Statement of Facts” which mixes together asserted facts, claims of error, supporting arguments, and citations to authority. Nothing in the appellants’ brief is sufficient to constitute an “enumeration of errors” required to be filed pursuant to OCGA § 5-6-40.

In Felix v. State, 271 Ga. 534, 537-539 (523 SE2d 1) (1999), the Supreme Court construed the requirement in OCGA § 5-6-40 that an appellant file “an enumeration of the errors which shall set out separately each error relied upon.” Felix explained that,

where the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently “set out separately” to require the appellate court to shoulder its constitutional responsibility to be a court of review (1983 Ga. Const., Art. VI, Sec. V, Par. Ill; Art. VI, Sec. VI, Par. II), and its statutory duty “to bring about a decision on the merits of every case appealed. . . OCGA § 5-6-30.

Felix, 271 Ga. at 539. In explaining “what constitutes an ‘error’ which must be set forth in the enumeration of errors” required by OCGA § 5-6-40, Felix notes that an appellate court functions to correct errors of law made by the trial court, and concludes:

An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § -5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112 (8) (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565 (2) (246 SE2d 682) (1978).

Felix, 271 Ga. at 539.

Thus, Felix makes clear that, when an enumeration of error has been filed pursuant to OCGA § 5-6-40, the APA requires a liberal construction of the enumeration, and “that an enumeration of error need be only sufficient to point out the error complained of.” Felix, 271 Ga. at 538 (citations and punctuation omitted). Liberal construction of an enumeration of error filed pursuant to OCGA § 5-6-40 is consistent with the requirement in OCGA § 5-6-30 that the APA be “liberally construed so as to bring about a decision on the merits of every case appealed,” and with the duty imposed on appellate courts under OCGA § 5-6-48 (f) “to discern what errors an appellant is attempting to articulate.” Felix, 271 Ga. at 538. Accordingly, where an enumeration of errors is filed pursuant to OCGA § 5-6-40 which sets forth and “identifies the trial court ruling asserted to be error,” the APA provides:

“[If] the enumeration of errors fails to enumerate clearly the errors sought to be reviewed[,]” the appellate court is nonetheless required to consider the appeal “where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing,... what errors are sought to be asserted upon appeal....” OCGA § 5-6-48 (f).

Felix, 271 Ga. at 538. Although Felix recognizes that the APA is liberally construed to promote decisions on the merits of asserted error, the decision also confirms that, before appellate review under the APA is permissible, an appellant must file an enumeration of error pursuant to OCGA § 5-6-40 that sets forth and identifies a specific trial court ruling alleged to be erroneous.

In applying these principles, “[t]his Court and the Supreme Court of Georgia have made clear that failure to file an enumeration of errors requires dismissal of an appeal, and that arguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error.” Miles v. Emmons, 234 Ga. App. 487, 487 (507 SE2d 762) (1998); Lowery v. Smith, 225 Ga. 814, 814 (171 SE2d 500) (1969); Adamson v. Sanders, 279 Ga. 187, 188 (611 SE2d 44) (2005); Rider v. State, 226 Ga. 14, 15 (172 SE2d 318) (1970). Accordingly, in the absence of an enumeration of errors filed in compliance with OCGA § 5-6-40, this Court will not comb through the appellate brief to attempt to discern what errors the appellant seeks to assert on appeal. Lowery, 225 Ga. at 814 (appellant failed to file an enumeration of errors pursuant to former Ga. Code Ann. § 6-810, now codified as OCGA § 5-6-40, “[therefore the appeal must be dismissed”); Strom v. London, 257 Ga. App. 889, 889 (572 SE2d 409) (2002) (appeal dismissed because the appellants failed to file an enumeration of errors as required by OCGA § 5-6-40); Riley v. Ga. Dept. of Revenue, 295 Ga. App. 656, 657 (673 SE2d 49) (2009) (no enumeration of errors filed pursuant to OCGA § 5-6-40, so appeal dismissed); Farmer v. Pressley, 152 Ga. App. 288, 291 (262 SE2d 499) (1979) (“[N]o enumeration of error has been filed and the appeal presents nothing for review.”); Adamson, 279 Ga. at 188 (“Matters not enumerated as error will not be considered on appeal.”); Rider, 226 Ga. at 15 (matters raised in the appellate brief but not enumerated as error pursuant to former Ga. Code Ann. § 6-810, now codified as OCGA § 5-6-40, will not be considered); Calhoun v. Patrick, 116 Ga. App. 303, 303 (157 SE2d 31) (1967) (appellate court has no jurisdiction to consider error argued in brief but not enumerated as error pursuant to former Ga. Code Ann. § 6-810, now codified as OCGA § 5-6-40); Talley v. State, 164 Ga. App. 150, 152 (296 SE2d 173) (1982) (“This court has no jurisdiction to consider grounds argued in the brief which are not enumerated as error”).

Appeal dismissed.

Branch and Rickman, JJ., concur.

Decided January 26, 2016

Reconsideration denied February 17, 2016

Douglas R. Daum, for appellants.

Construction Law Group, John C. McManus, for appellees.

       The named defendants, and appellees on appeal, are Astra Group, Inc. (the general contractor), Arch Insurance Company, Inc. (the surety for the bond), and R. W. Shannon, Inc. (the first tier subcontractor).


author: Ellington, Presiding Judge.

text:
    A16A0062.
    ESSIEN v. CITIMORTGAGE, INC. et al.
    (781 SE2d 599)
   Ellington, Presiding Judge.

Days before a scheduled foreclosure sale, Ronke Essien filed this action against CitiMortgage, Inc., and the law firm of Pendergast & Associates, P.C., in the Superior Court of Fulton County, asserting claims for wrongful foreclosure, breach of contract, trespass, violations of the Georgia RICO Act, and “surprise,” seeking damages, punitive damages and attorney fees. CitiMortgage and Pendergast filed motions for summary judgment. Essien failed to respond to the motions. The trial court granted the motions as to all claims for relief. Essien appeals, contending that a genuine issue of material fact exists regarding whether CitiMortgage breached the subject security deed’s pre-acceleration notice requirements and that, therefore, the trial court erred in granting the motions for summary judgment as to Essien’s wrongful foreclosure claim under OCGA § 23-2-114.Essien’s appellate brief does not address the other claims asserted in her complaint.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” OCGA § 9-11-56 (c). “In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment.” (Citation omitted.) Bowden v. Pryor, 215 Ga. App. 351 (450 SE2d 845) (1994). See also Wade v. Howard, 232 Ga. App. 55, 59 (499 SE2d 652) (1998) (accord).

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

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

We note initially that CitiMortgage and Pendergast identified evidence that the foreclosure sale, which had been scheduled for the first Tuesday in September 2014, did not take place then or at a later date. This evidence is undisputed. Any claim for wrongful foreclosure, therefore, was patently premature.

Even if we deem Essien’s complaint to have asserted a cognizable claim for wrongful attempted foreclosure, she fails to show that the trial court erred in granting the motions for summary judgment. In arguing on appeal that the trial court erred in granting summary judgment to CitiMortgage and Pendergast, Essien avers only that they failed to identify any evidence in the record that they provided pre-acceleration notice as required in the subject security deed before accelerating the loan and exercising the power of sale. This statement, however, is belied by the record. In support of its motion for summary judgment, Pendergast submitted the affidavit of one of its employees, who served as CitiMortgage’s foreclosure attorney. The attorney deposed that such a notice was sent to Essien on March 8, 2011, and supported her sworn statements with related business records. The notice advised Essien of her opportunity to cure the default and avoid acceleration of the debt by paying a specified amount then due by April 7, 2011. CitiMortgage also submitted an affidavit regarding the initiation of foreclosure proceedings through foreclosure counsel. Essien entirely failed to respond to the motions for summary judgment, and, consequently, the defendants’ evidence regarding the giving of pre-acceleration notice of default is undisputed. See Bowden v. Pryor, 215 Ga. App. at 351-352. Because Essien failed to come forward with evidence to contravene the defendants’ proof, she has now, properly, “suffer [ed] judgment.” Id. She has shown no error.

On appeal, Essien continues to stand on her unsupported pleadings. As detailed above, this case presents these circumstances: the plaintiff’s claim for relief, as framed by plaintiff’s counsel, required proof that the defendants failed to provide certain notice before initiating foreclosure proceedings; in moving for summary judgment, the defendants submitted evidence that the required notice was provided; the plaintiff failed to contravene such evidence with any contrary evidence and failed even to submit a legal argument challenging the defendants’ evidence on any grounds. Under such circumstances, it is frivolous to argue on appeal that the trial court erred in granting summary judgment to the defendants. Wade v. Howard, 232 Ga. App. at 59-60; Bowden v. Pryor, 215 Ga. App. at 351-352.

In We Care Transp. v. Branch Banking & Trust Co., 335 Ga. App. 292 (780 SE2d 782) (2015), we imposed sanctions against Essien’s counsel, Grady Roberts III, for prosecuting a frivolous appeal. See Court of Appeals Rule 15 (b) (permitting court, “with or without motion, [to] impose a penalty not to exceed $2,500.00 against any party and/or party’s counsel in any civil case in which there is a direct appeal . . . which is determined to be frivolous”). As in We Care Transp., in this case Roberts failed to assert any argument on behalf of his client in the appellate brief that conceivably could have supported the claim that the trial court erred in granting summary judgment to the movants. As in that case, in this case the arguments in the untimely-filed appellate brief “ignored basic, well-established Georgia law on the burdens of the parties on summary judgment.” Id. at 296 (3). When we imposed sanctions upon Roberts for bringing a frivolous appeal in We Care Transp., we advised him to “diligently and expeditiously examine” his other pending appeals, which included this one, to determine whether any are frivolous. Id. Roberts opted instead to forge ahead with another frivolous appeal. We find, therefore, that a penalty is, again, appropriate under Court of Appeals Rule 15 (c), and we impose such a penalty against him (but not against his client, Essien) in the amount of $2,500. Id.; see also Wade v. Howard, 232 Ga. App. at 60-61; Bowden v. Pryor, 215 Ga. App. at 351-352. This penalty shall constitute a money judgment of $1,250 in favor of CitiMortgage and $1,250 in favor of Pendergast against Roberts, and the trial court is directed to enter judgments in such amounts upon the return of the remittitur in this case. See We Care Transp. v. Branch Banking & Trust Co., 335 Ga. App. at 298 (3).

Decided January 28, 2016

Reconsideration denied February 17, 2016.

Roberts Law, Grady A. Roberts III, for appellant.

Burr & Forman, Erin C. Howell, Louis G. Fiorilla; Pendergast & Associates, Howell A. Hall, Brian D. Klein, for appellees.

Judgment affirmed.

Branch and Mercier, JJ., concur.

       “Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” OCGA § 23-2-114. See Wells Fargo Bank v. Molina-Salas, 332 Ga. App. 641, 642 (1) (774 SE2d 712) (2015) (“The legal duty imposed upon a foreclosing party under a power of sale is to exercise that power fairly and in good faith.”) (footnote omitted).

       See Metro Atlanta Task Force for the Homeless v. Ichthus Community Trust, 298 Ga. 221, 237 (4) (b) (780 SE2d 311) (2015) (The elements of a viable claim for wrongful foreclosure are a legal duty owed to the plaintiff by the foreclosing party, a breach of that duty, such as in the manner in which the foreclosing party conducted the sale, a causal connection between the breach of that duty and the injury it sustained, and damages.); see also Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (2) (443 SE2d 837) (1994) (Where the plaintiff-owner asserted wrongful foreclosure claim after the mortgage holder sold the property at public auction, seeking damages in the amount the sale price exceeded the debt, plus interest, the trial court did not err in denying the plaintiff’s motion for a directed verdict on her tort claim for wrongful foreclosure; although the bank’s failure to provide statutorily-required notice of default constituted a breach of the duty to fairly exercise the power of sale created by OCGA §23-2-114, the plaintiff “still needed to show a causal connection between the lack of notice and the alleged injury.”) (citation omitted); Brown v. Freedman, 222 Ga. App. 213, 214 (1) (474 SE2d 73) (1996) (A claim for wrongful exercise of a power of sale under OCGA § 23-2-114 can arise when a creditor forecloses on property without the legal right to do so, in violation of the terms of the security deed.); Frank S. Alexander et al., Ga. Real Estate Finance and Foreclosure Law, § 8:11 (updated October 2015).

       See Aetna Finance Co. v. Culpepper, 171 Ga. App. 315, 319 (1) (320 SE2d 228) (1984); Mayo v. Bank of Carroll County, 157 Ga. App. 148 (1) (276 SE2d 660) (1981); Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 107 Ga. App. 463, 464-465 (130 SE2d 518) (1963); see also In re Pullen, 451 BR 206, 212 (Bankr. N.D. Ga. 2011) (Where a debtor alleged that an attorney had written letters threatening immediate foreclosure, despite fact that lender whom he represented, before accelerating indebtedness, had not complied with notice provisions of deed to secure debt, the complaint stated a claim for attempted wrongful foreclosure in violation of Georgia law, which could support an award of damages for emotional distress, as well as violations of the Fair Debt Collection Practices Act, 15USC § 1692f(6) (A).); Frank S. Alexander et al., Ga. Real Estate Finance and Foreclosure Law, § 8:11 (updated October 2015).

       Essien’s complaint was not verified. Whimsical Expressions v. Brown, 275 Ga. App. 420, 422 (2) (620 SE2d 635) (2005) (An unverified complaint is not evidence.); cf. BEA Systems v. WebMethods, Inc., 265 Ga. App. 503, 504 (595 SE2d 87) (2004) (A verified complaint serves as evidence, as well as a pleading.).


author: Ray, Judge.

text:
    A15A2101.
    THE STATE v. CAMP.
    (782 SE2d 819)
   Ray, Judge.

Marquavious Joeanthony Camp was indicted for possession of marijuana with intent to distribute, possession of marijuana with intent to distribute within 1,000 feet of a school, possession of a firearm during the commission of a crime, criminal use of an article with an altered identification mark, carrying a concealed weapon, and possession of marijuana less than one ounce. Camp filed a motion to suppress, which was granted by the trial court. The State now appeals that decision. Finding no error, we affirm.

In two enumerations of error, the State contends that the trial court incorrectly granted the motion to suppress due to its finding that the officer could not have detected the odor of marijuana and that the officer lacked probable cause for the search. Both enumerations involve the trial court’s credibility determination of the arresting officer.

Three principles govern the appeal of a trial court’s ruling on a motion to suppress: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. . . . Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation omitted.) Perez v. State, 249 Ga. App. 399, 399-400 (547 SE2d 699) (2001).

The record shows that a police officer (the “Officer”) of the Winder Police Department responded to an emergency call regarding a domestic dispute on February 6, 2013. While en route, he made contact with two males matching the description of the suspect. The Officer pulled his patrol car over, approached the males on foot, and began conversing with them. The men provided identification which identified them as Camp and Keanthony Johnson. The Officer was aware that Johnson was the suspect in the domestic dispute.

At the hearing on the motion to suppress, the Officer testified that when he approached Camp and Johnson he smelled “the overwhelming smell of green marijuana.” The Officer stated that he separated the two men to speak with Johnson regarding the domestic dispute and to determine from which man the marijuana scent was emanating. He questioned both men about the marijuana scent and stated that Camp reacted by getting “a surprised look on his face” and “started grabbing for his pants ... looking around.” Based on his law enforcement experience, this made him “think that [Mr. Camp] was fixing to run.” In response, the Officer pulled out his taser, pointed it at Camp, and directed him to step over to the patrol vehicle. The Officer asked Camp where the marijuana was, and Camp responded that it was in his pocket. The Officer then placed Camp in handcuffs, retrieved the marijuana from Camp’s pocket, and performed a full search of Camp.

Johnson testified at the suppression hearing that he and Camp were walking together when the Officer approached them. The Officer asked them to identify themselves, and Johnson admitted that he had been fighting with his girlfriend. The Officer then placed Johnson in handcuffs. According to Johnson, at no point did the Officer separate him from Camp. Johnson testified that the Officer did not focus on Camp until Camp began to walk away from the encounter to continue his trip to the store, which occurred prior to the Officer asking about the marijuana. The Officer then told Camp to stop and placed him in handcuffs as well.

The Officer’s search of Camp revealed a loaded revolver with the serial number removed and a clear bag containing multiple small bags of marijuana. Camp filed a motion to suppress all evidence seized as a result of the search on the grounds that the search was unconstitutional, arguing that he was detained at the scene by the Officer pointing his taser at him while he was no longer a suspect for the domestic dispute and was not under investigation for any crime or wrongdoing. The trial court granted Camp’s motion in a four-page order, which it later supplemented with an additional three-page order.

The trial court held that when the officer pulled his taser on Camp, he escalated what started as a first-tier encounter to a third-tier encounter as “a reasonable person in [Camp’s] position would have thought his detention would not be temporary, and that [Camp] yielded on condition of being allowed his freedom of movement under the discretion of the officer.” Therefore, the arrest and subsequent search would only be lawful if the Officer had probable cause to support it. Based on its credibility determinations of the testimony presented at the hearing, the trial court found that probable cause was not present.

In the trial court’s supplemental order, it stated that it was

not convinced that the officer could have detected the odor of raw marijuana under these circumstances. The marijuana (a quantity small enough to fit in [Camp’s] front pocket) was within several layers of plastic, within [his] pants, and [he] was outside in the open air. . . . Considering the totality of the facts before it, the Court finds and believes that he could not [detect the odor of raw marijuana under these circumstances].

Decided February 17, 2016.

J. Bradley Smith, District Attorney, Candace K. Slezak, Assistant District Attorney, for appellant.

Alison M. Lerner, for appellee.

This is a matter of credibility. The trial court had the opportunity to observe the Officer during the hearing. The transcript shows that the Officer indicated how large the bag of marijuana was with his hands during the hearing. This is something that cannot be replicated in the record for us to consider on review, which is one of the reasons that we rely on the trial judge to act as the factfinder in a suppression hearing.

Although the defense did not independently present evidence that the Officer could not have smelled the contraband, “[t]he trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” (Citation and footnote omitted.) Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). We cannot state that the trial court was incorrect in its determination that the Officer could not have detected the marijuana.

The State rests its argument on its claim that the Officer had reasonable articulable suspicion to detain and probable cause to search Camp on the Officer’s testimony that he could smell the marijuana. Once the trial court chose to disbelieve this testimony, there was nothing left in the record to establish the reasonable articulable suspicion which would be necessary to escalate the encounter from the initially lawful first-tier encounter. See In the Interest of J. B., 314 Ga. App. 678, 680-684 (1) (725 SE2d 810) (2012). Therefore, we find no error in the trial court’s determination that the Officer’s search of Camp was improper, and we affirm the trial court’s grant of the motion to suppress.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

       The trial court felt it was necessary to supplement its initial order after this Court’s decision in State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), which modified the doctrine in Georgia law that had previously held that evidence regarding the odor of marijuana alone was insufficient to establish probable cause for a warrant. The purpose of the supplemental order was to clarify that the trial court’s rationale for granting the motion to suppress was not solely based on the case law current at the time the order was granted, but also was based on its credibility determination of the witnesses at the hearing.

       The State disputes that the detaining of Camp moved the encounter from a first tier to a third tier encounter, as it contends that it was escalated only to a second tier encounter. We do not endeavor to decide that dispute, as it is not central to the issue of this appeal, which is the trial court’s determination regarding whether the Officer could have smelled marijuana at issue.

       The record fails to establish the quantity of marijuana that was discovered on Camp, as well as how it was packaged.


author: Mercier, Judge.

text:
    A15A1791.
    MANTOOTH v. THE STATE.
    (783 SE2d 133)
   Mercier, Judge.

Harold Mantooth appeals his conviction for possession of a firearm by a convicted felon under OCGA § 16-11-131 (b), as well as his conviction for possession of less than one gram of methamphetamine under OCGA § 16-13-30 (a). Mantooth contends there was insufficient evidence for a jury to find that he possessed a firearm, and that even if the State proved possession, it failed to prove that the object possessed was a firearm as defined in OCGA § 16-11-131. Mantooth argues next that the trial court erred in denying his motion for a directed verdict as to the count of possession of methamphetamine. Finding no error, we affirm.

1. Mantooth argues that there was insufficient evidence that he possessed the object the State contends was a firearm. Furthermore, he claims that even if possession was proven no rational trier of fact could have found that the disassembled rifle was a firearm. For the following reasons, we disagree.

(a) It is well established in considering the sufficiency of the evidence in a case involving a criminal conviction that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted). In doing so “[a]n appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia.” Krauss v. State, 263 Ga. App. 488, 488 (1) (588 SE2d 239) (2003) (footnote omitted).

Viewed in this light, the evidence shows that in January 2014 two probation officers arrived unannounced at Mantooth’s residence. Mantooth was on probation. The officers were met by Mantooth’s mother, who informed the officers that Mantooth was in the apartment above the garage some 100 feet behind the house. The officers met Mantooth in the garage as he descended the stairs from the apartment. One of the officers noticed some unspent rifle shells lying on a table next to the stairs. The other observed that Mantooth smelled of alcohol, and had a “chemical smell about him.”

At that point the officers requested Mantooth’s consent to search the living area of the apartment. He consented, and the officers proceeded upstairs into the apartment. Two other individuals were in the apartment at the time (T..A. and R. D.). After a brief search of the apartment the officers located what they identified as a firearm under two pillows on top of the bed. The officers then placed Mantooth in restraints and conducted a more thorough search of the premises. The search uncovered methamphetamine on the floor, three methamphetamine pipes under a couch cushion, gun parts, and pocket knives. The probation officers placed the items on a table, and waited until another officer arrived to process the evidence. Along with the contraband found in the apartment, another individual in the apartment, T. A., was found to have methamphetamine on his person. Mantooth was ultimately arrested, charged, and tried for possession of methamphetamine and possession of a firearm by a convicted felon.

Mantooth argues first that there was insufficient evidence to find he possessed the purported firearm. “The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” Smith v. State, 316 Ga. App. 175, 177 (1) (728 SE2d 808) (2012) (citation and punctuation omitted). See also Lockwood v. State, 257 Ga. 796, 797-798 (364 SE2d 574) (1988). Here, it is undisputed that Mantooth did not actually possess the purported firearm. Instead Mantooth had just exited the apartment where the firearm was found. The State was therefore required to prove constructive possession.

A person is in constructive possession of an object when he knowingly has both the power and intention at a given time to exercise dominion over the object. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.

Fluker v. State, 296 Ga. App. 347, 349 (674 SE2d 404) (2009) (citations and punctuation omitted).

“Constructive possession is sufficient to show violation of the statute, and it may be proved by circumstantial evidence.” Mask v. State, 309 Ga. App. 761, 763 (2) (711 SE2d 348) (2011). During the trial the jury heard evidence that Mantooth was more than merely present at the apartment where the firearm was found. On previous occasions Mantooth had been present in the apartment when probation officers visited him. In fact one probation officer testified that Mantooth had been in the apartment every time he had visited, except for one occasion when Mantooth was in the driveway. T. A., another individual arrested at the same time, testified that when visiting Mantooth on previous occasions he had met Mantooth at the apartment above the garage, and he also testified that Mantooth kept personal belongings in the apartment. Furthermore, Mantooth’s mother testified that Mantooth had access to the apartment “at any time.” T. A. testified that he had seen the firearm at the apartment, and he had not brought it there. When they entered the garage, the probation officers found rifle ammunition lying on a table at the base of the stairs leading to the apartment. After conducting a search, the officers then located the parts of a disassembled rifle.

The trial court instructed the jury during its charge on, among other things, mere presence, intent, actual and constructive possession, sole and joint possession, and equal opportunity.

“As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact.” Ferrell v. State, 312 Ga. App. 122, 124 (1) (717 SE2d 705) (2011) (punctuation and footnote omitted).

We conclude that the evidence presented was sufficient for the jury to find beyond a reasonable doubt that Mantooth had access, power, and intention to exercise dominion or control over the firearm found in the apartment. See Smith, 316 Ga. App. at 178 (1); Layne v. State, 313 Ga. App. 608, 612 (2) (722 SE2d 351) (2012); compare Peppers v. State, 315 Ga. App. 770, 772 (728 SE2d 286) (2012). As a result, it was authorized to find him guilty of possession of a firearm by a convicted felon.

(b) Mantooth contends further that even if the State proved possession, the jury could not have found that the disassembled rifle was a firearm. OCGA § 16-11-131 (a) (2) defines a firearm as “any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.” Mantooth argues that the rifle as it was found in the apartment did not meet the definition of a firearm under OCGA § 16-11-131 (a) (2) because it did not possess what he terms the “essential characteristics of a firearm,” and the State failed to demonstrate that he could have rendered the weapon capable of firing a projectile. Mantooth argues that this is an issue of first impression because it has never been addressed in Georgia law. His contention is without merit.

In enacting OCGA § 16-11-131, the General Assembly sought “to keep guns out of the hands of those individuals who by their prior conduct had demonstrated that they may not possess a firearm without being a threat to society.” Landers v. State, 250 Ga. 501, 503 (3) (299 SE2d 707) (1983).

This Court has declined in the past to interpret OCGA § 16-11-131 as requiring proof that a weapon possessed by a convicted felon is actually functional when it is one enumerated within the statutory definition of firearm. See Senior v. State, 277 Ga. App. 197, 197-198 (626 SE2d 169) (2006); Bryant v. State, 169 Ga. App. 764, 764 (1) (315 SE2d 257) (1984). Today, we likewise decline to interpret OCGA § 16-11-131 as requiring proof that a weapon possesses the “essential characteristics of a firearm” when the law does not include such a standard and it is a weapon that is specifically enumerated within the statutory definition of firearm, i.e., a handgun, rifle, or shotgun.

In analyzing the meaning of a statute we as an appellate court must “presume that the General Assembly meant what it said and said what it meant.” In the Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014). See also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013), citing Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (citation omitted). Where the language of a statute is plain and susceptible to only one natural and reasonable construction appellate courts must construe the statute accordingly. Deal, 294 Ga. at 172-173 (1) (a).

Construing OCGA § 16-11-131 with these principles in mind, we conclude that the General Assembly meant to prohibit convicted felons from possessing those firearms enumerated in the statutory definition without respect to their level of assembly, functionality, or their possession of the “essential characteristics of a firearm.” The General Assembly specifically enumerates handguns, rifles, and shotguns as firearms convicted felons are prohibited from having in their possession. These enumerated terms are not qualified in any way by the relevant statutory text. Thus, the plain meaning of the statute is that a convicted felon may not possess one of these enumerated firearms, regardless of its state of assembly. Consequently, the jury was authorized to find that the disassembled rifle was a firearm within the statutory definition.

Therefore, in order to support the conviction, the State only needed to prove beyond a reasonable doubt that Mantooth was a convicted felon and that he possessed a firearm as defined above. It did so.

2. Mantooth contends that the trial court erred in denying his motion for directed verdict of acquittal because the State failed to prove that he possessed the methamphetamine found in the apartment. This enumeration of error is without merit.

A motion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

Smith, 316 Ga. App. at 175 (1) (citing Hughes v. State, 297 Ga. 217 (676 SE2d 852) (2009)). See also Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008) (“Ajuryis authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.”) (citation and punctuation omitted).

Mantooth was arrested for possession of methamphetamine because he was in an apartment where methamphetamine was also located and he had access, power, and intention to exercise dominion or control over the methamphetamine. The methamphetamine was not found on his person, but instead only in his general vicinity. His argument turns on whether the jury had evidence with which to find that he possessed the methamphetamine.

Our analysis of the sufficiency of the evidence as to possession of methamphetamine is identical to the analysis done with respect to possession of a firearm by a convicted felon. “The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” See Smith, 316 Ga. App. at 177 (1). Here, just as with Mantooth’s conviction of possession of a firearm by a convicted felon, it is undisputed that Mantooth was not in actual possession of methamphetamine, so the State was required to prove constructive possession. See Fluker, 296 Ga. App. at 348.

In addition to the facts presented to the jury concerning Man-tooth’s access to the apartment, the State presented facts with respect to the methamphetamine. T. A. testified that he only brought one bag of methamphetamine with him, but two bags of methamphetamine were found in the apartment. He also claimed that his friendship with Mantooth was based on drugs. The jury heard that R. D., the third individual in the apartment, neither brought methamphetamine to the apartment nor used any while there.

“As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact.” Ferrell, 312 Ga. App. at 124 (1) (punctuation and footnote omitted). We conclude that the evidence presented was sufficient for the jury to find beyond a reasonable doubt that Man-tooth had both the power and intention to exercise dominion or control over the methamphetamine found in the apartment. See Smith, 316 Ga. App. at 178 (1). As a result, Mantooth was not entitled to a directed verdict of acquittal.

Decided February 18, 2016.

Long D. Vo, for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A15A0147.
    A15A0148.
    STONE v. WEBB. In the Interest of A. E. W., a child.
    (782 SE2d 824)
    Decided February 19, 2016.
   Ellington, Presiding Judge.

In these consolidated appeals, David Stone, the father of A. E. W, a minor child, appeals from the trial court’s orders awarding joint legal custody of the child to the father and Sandra Webb, the child’s maternal grandmother. Given the Supreme Court of Georgia’s holdings in Stone v. Stone, 297 Ga. 451 (774 SE2d 681) (2015), including that, “in situations where a parent is suitable to exercise custody over a child, [the Georgia Code] does not allow that parental custody to be limited by a joint custody arrangement with a grandparent or, for that matter, any other person,” id. at 455, we hereby vacate the orders appealed and remand for reconsideration in light of Stone.

Judgments vacated and cases remanded with direction.

Dillard and McFadden, JJ., concur.

Alan Mullinax & Associates, Alan Mullinax, Zachary R. Stepp, for appellant.

Lawrence L. Washburn III, for appellee.

       These two appeals were originally filed in this Court; however, because these appeals were inextricably intertwined with the father’s appeal in Stone, they were transferred to the Supreme Court of Georgia and remained pending therein when the Supreme Court issued its opinion in Stone. See Stone v. Stone, 297 Ga. at 452, n. 2. The Supreme Court subsequently returned these appeals to this Court.


author: McFadden, Judge.

text:
    A15A1708.
    WATSON v. REGIONAL FIRST CARE, INC. et al.
    (782 SE2d 822)
   McFadden, Judge.

Appellant Johnny Watson passed out while waiting in an examination room in a medical clinic, fell off the exam table he had been sitting on, and was injured. He sued the clinic, Regional First Care, Inc., and Kimbly Berry, the medical assistant who had interviewed him a few minutes earlier, alleging that Berry’s negligence caused his injuries. Because Watson had passed out three times before and was injured on at least one of those occasions, the trial court granted Regional’s summary judgment motion on the grounds that Regional had established the affirmative defense of the assumption of the risk. We agree and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997) (citations omitted).

So viewed, the record shows that Watson first visited Regional, a walk-in medical clinic, for treatment of bronchitis on April 10 and again on April 16. Afew days after the second visit, Watson passed out at home while coughing and hit his head on his night stand. On May 2, Watson drove himself back to Regional for further treatment of his bronchitis. During this visit, Berry, a medical assistant, escorted Watson to the examination room where she instructed him to sit down on the exam table, took his blood pressure, and then left to retrieve the doctor. While Berry was interviewing Watson, he informed her that he had passed out from coughing on two prior occasions. While Watson was seated on the exam table, but before the doctor arrived, Watson experienced another coughing fit and passed out, falling to the floor and sustaining his injuries.

“As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 94 (3) (449 SE2d 618) (1994). “A defendant asserting an assumption of the risk defense 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.” Findley v. Griffin, 292 Ga. App. 807, 809 (2) (666 SE2d 79) (2008) (citations omitted). “Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part.” Kroger Co. v. Williams, 257 Ga. App. 833, 835 (572 SE2d 316) (2002).

Watson’s sole enumeration of error states that the lower court erred by “not considering the [contributory] negligence of [Regional’s] medical assistant” in leaving Watson alone knowing of the potential for him to faint. It is true that an act of contributory negligence or an error in judgment on the part of the plaintiff is not necessarily an assumption of risk, and the rule does not extend to a plaintiff assuming the risk of the negligent act of another. Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 113 (1) (460 SE2d 800) (1995). In that case, we illustrated the rule with the following example:

A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk.

Id. (citations, punctuation and emphasis omitted). When assessing whether a plaintiff has assumed the risk, the applicable standard focuses on the plaintiff’s knowledge; it is “a subjective one, geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence who appears in the completely separate defense of contributory negligence.” Findley, 292 Ga. App. at 810 (2).

We find that the evidence that Watson had assumed the risk satisfies the plain, palpable, and undisputed standard required for the grant of summary judgment. See Kroger Co., 257 Ga. App. at 837. The record illustrates Watson’s subjective awareness of the risk that he could potentially pass out from coughing, as Watson had sustained injuries from passing out from coughing prior to his fall at Regional. Watson himself acknowledged that no one knew better than he about the risks of coughing and falling. The room where Watson sustained his injuries contained two chairs in which Watson was free to sit, but he chose not to. These undisputed facts establish, as a matter of law, that Watson voluntarily and knowingly chose to remain seated upon the table, regardless of any alleged negligence on the part of Berry. See Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343 (433 SE2d 344) (1993).

Decided February 19, 2016.

J. Hue Henry, for appellant.

Hall Booth Smith, Alexander H. Booth, Jeffrey R. Daniel, for appellees.

Judgment affirmed.

Dillard and Mercier, JJ., concur.