author: Doyle, Chief Judge.

text:
    A15A1095.
    CROSBY et al. v. JOHNSON et al.
    (779 SE2d 446)
   Doyle, Chief Judge.

Roy Crosby, the coroner of Bacon County, appeals the denial of his motion to dismiss a lawsuit filed against him in his individual and official capacities by Johnny Johnson, personally and as administrator of the estate of Dewey Johnson (deceased); Frances Johnson; Candace Medders; Jennifer Johnson; Johnny Johnson, Jr.; Roy Johnson; Theresa Johnson; and Cindy Thompson, as parent and guardian of Dewey Johnson, Jr., and Kamie Deanna Johnson. Crosby contends that the trial court erred by ruling that (1) Crosby is a county official instead of a state official, (2) Crosby is not entitled to sovereign immunity, and (3) Crosby is not entitled to official immunity because his allegedly tortious conduct was ministerial. For the reasons that follow, we reverse.

On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo. And in reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.

The plaintiffs’ complaint as amended alleges that at approximately 5:30 a.m. on September 8, 2007, Dewey Johnson died. His body was discovered at approximately 6:12 p.m. on the same day, and the Georgia Bureau of Investigation responded to the scene to investigate the circumstances of death. Shortly after midnight, Crosby took custody of the body in his capacity as coroner, but instead of taking the body to a refrigerated hospital morgue, Crosby transported it to a shed behind a private funeral home he operated, Crosby Funeral Homes, Inc.

The complaint further alleges that the plaintiffs contracted with Crosby to provide funeral and burial services, but by the time the family attempted to hold an open casket viewing on September 12, four days later, the body had decomposed to the point of being in an inappropriate condition for viewing. Over the family’s objection, Crosby did not allow them to view the body, and the funeral and burial were conducted with a closed casket.

Based on these events, the plaintiffs sued Bacon County, Crosby Funeral Homes, and Crosby, naming him in his individual capacity and his official capacity as coroner, alleging claims for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraudulent conduct, negligence and negligence per se, wilful interference with remains, negligent interference with remains, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent performance of a ministerial duty.

Pursuant to OCGA § 9-11-12 (b) (6), Crosby and Bacon County moved to dismiss the claims against them to the extent they derived from Crosby’s acts as coroner for the County. The motion noted that Crosby had also been sued with respect to his nongovernmental position at the funeral home, and it did not seek dismissal as to claims against Crosby in that capacity. Following a hearing, the trial court denied the motion as to Crosby, noting that the parties had agreed that Bacon County was not properly subject to suit, apparently on sovereign immunity grounds. Crosby now appeals.

1. Crosby contends that the trial court erred by characterizing him as a county official, instead of a state officer who would enjoy protection from liability under the Georgia Tort Claims Act (“GTCA”). We disagree.

The GTCA provides: “A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” The GTCA defines “state officer or employee,” in relevant part, as “an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity.” There is a dearth of case law on whether coroners fall within this category, so we turn to the statutory scheme governing coroners.

OCGA § 45-16-1 provides, in relevant part:

(a) Coroners are elected, commissioned, and removed as are clerks of the superior courts; and coroners shall hold their offices for four years.
(b) (1) No person shall be eligible to offer for election to or to hold the office of coroner unless he or she:
(B) Is a resident of the county in which he or she seeks the office of coroner for at least two years prior to his or her qualifying for the election to the office and remains a resident of such county during his or her term of office [.]
(c) Notwithstanding any other provision of law, any person holding office as the mayor of a municipality with a population of 5,000 or less according to the United States decennial census of 1980 or any future such census is specifically authorized to serve simultaneously as coroner; and any person holding the office of coroner is specifically authorized to serve simultaneously as mayor of a municipality with a population of 5,000 or less according to the United States decennial census of 1980 or any future such census.

Thus, on the face of this Code section, coroners are subject to county elections, not state-wide, and appear to be closely tied to their counties as opposed to the State.

This view is supported by other portions of the Code, which provide that coroners may in some circumstances act in the place of the county sheriff, a post which this Court has held to be a county official and not a state officer. Also, the Code requires the “coroner of each county” to appoint a deputy coroner “for each county.” The county governing authority (not the State) is authorized to approve the appointment of additional deputy coroners for the county. The Code requires a county coroner’s salary to be paid “from the funds of the coroner’s county,” and authorizes county governing authorities to provide for contingent expense allowances “from county funds.” The General Assembly may, through the passage of a local law, abolish the office of coroner and create the office of medical examiner for a particular county, but in such a case, the new medical examiner

shall be appointed by the governing authority of that county, shall serve at the pleasure of that governing authority, shall be compensated in an amount determined by that governing authority, and all expenses of the office of such medical examiner shall, subject to county budgetary limitations, be paid from the general funds of that county.

Based on this statutory scheme, we conclude that for purposes of immunity under the GTCA, coroners are county officials, not state officers. Accordingly, this enumeration presents no basis for reversal.

2. Crosby next contends that the trial court erred by ruling that he is not entitled to assert a sovereign immunity defense to the extent he was sued in his official capacity. We agree.

The complaint names Crosby as a defendant in his official capacity and in his individual capacity, and it alleges that Crosby committed negligent acts while he acted as coroner (choosing to transport the body to a place other than a refrigerated hospital morgue) and while he acted in a nongovernmental function on behalf of the funeral home (allegedly allowing the body to unduly decompose prior to burial). The claims related to the nongovernmental funeral home operations were not subject to the motion to dismiss and are still pending. Thus, the claims against Crosby for his conduct as coroner are the sole focus of this appeal.

With respect to the motion to dismiss filed by Crosby and the County, the trial court’s order states that “[t]he parties have indicated that they are in agreement that Bacon County is not a proper party to this lawsuit,” apparently on the ground that the County is entitled to sovereign immunity. Nevertheless, the court’s order goes on to hold that “Defendant Crosby’s Motion to Dismiss, in his official capacity, is hereby DENIED.” This result conflates the concepts of a suit against Crosby in his official and individual capacities. When a claim is filed against a county official in his official capacity, the claim is, “in essence, . . . against [the] County[,] and [the official] may raise any defense available to the county, including sovereign immunity.” Accordingly, with respect to the claims against Crosby in his official capacity, they are essentially against the County, which is entitled to sovereign immunity. As noted by the trial court, the plaintiffs do not argue that the County has waived its immunity, nor do they, on appeal, identify any statutory waiver of immunity on the part of the County. It is well settled that “[sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege and the waiver must be established by the party seeking to benefit from the waiver.” Accordingly, the trial court erred to the extent that it denied the motion to dismiss the claims against Crosby in his official capacity, i.e., against the County.

3. Crosby also challenges the trial court’s ruling that he, in his individual capacity, is not entitled to official immunity. We agree.

When a county official is sued in his individual capacity, the doctrine of official immunity (as opposed to sovereign immunity) is implicated.

The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority. Furthermore, a ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Here, the plaintiffs argue, and the trial court held, that OCGA § 45-16-31 creates a ministerial duty on the part of coroners with respect to transport of deceased bodies. That Code section provides as follows:

When the deceased body lies in a place inconvenient for holding a medical examiner’s inquiry, the medical examiner or coroner shall be allowed to remove the body to the autopsy room of the nearest public hospital or morgue. If neither the coroner nor the medical examiner is immediately available, the peace officer may assume the authority to have the body moved to such facility. When such facility is not reasonably available, the body may be removed to such other suitable place as may be designated by the coroner or the medical examiner or by the peace officer in charge in the absence of the coroner or medical examiner. If the peace officer in charge is present, no such body shall be removed until photographs of the body and surrounding premises have been made and a thorough investigation of the premises has been made by the proper investigating authorities.

Put succinctly, the Code provides that if the body location is “inconvenient” for holding an inquiry, the coroner is “allowed” to remove the body to a nearby hospital or morgue. And if a hospital or morgue is “not reasonably available, the body may be removed to such other suitable place as may be designated by the coroner.”

Based on this language, the trial court held that if a body is in an inconvenient location, the coroner “has an absolute, ministerial duty to ‘remove the body to the autopsy room of the nearest public hospital or morgue,’ ” unless it is not “reasonably available.” But this conclusion interprets “shall be allowed” to mean “must.” Such an interpretation is contrary to the plain meaning of the words “shall be allowed,” which signify permission rather than creating a mandatory direction. Further, the Code section first requires a determination by the coroner that the location is inconvenient, which requires an exercise of discretion. The Code also requires a determination as to whether the nearest public hospital or morgue is “reasonably available,” which likewise requires an exercise of discretion. In sum, the Code section provides no absolutes, instead using standards such as “inconvenient,” “reasonably available,” and “suitable ... as may be designated by the coroner.” All of this “calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed,” and as such is discretionary, not ministerial, conduct. Accordingly, the trial court erred by ruling that Crosby is not entitled to official immunity with respect to the plaintiffs’ claims predicated on alleged violations of OCGA § 45-16-31.

We note that in Austin v. Clark, the Supreme Court concluded that a motion to dismiss for failure to state a claim, as was filed here, was an unsuccessful way to assert an official immunity claim based on the fact-specific analysis required in that case to address the ministerial/discretionary dichotomy. In Austin, the Court explained:

[Discovery in this case has been extremely limited[,] and the record, to date, contains no job descriptions for the individuals being sued. At this time, it cannot be said that the allegations of the complaint disclose with certainty that [the plaintiff] would not be entitled to relief under any state of provable facts asserted in support.

Here, however, the plaintiffs’ complaint, the motion to dismiss, and the appellate briefing are explicitly premised on the scope of Crosby’s official immunity for alleged violation of duties contained in OCGA § 45-16-31, and the trial court’s ruling, so limited, only engaged in an analysis of the statute. Accordingly, with respect to Crosby’s official immunity for alleged violation of a coroner’s alleged duties as enumerated in the statute, the record is fully developed, and the issue is properly resolved even in the current procedural posture.

4. A remaining portion of Crosby’s appellate brief discusses the effect of OCGA § 15-13-1, which provides as follows: “All sheriffs, deputy sheriffs, coroners, jailers, constables, and other officers of court shall be liable to all actions and disabilities which they incur in respect of any matter or thing relating to or concerning their respective offices.” The plaintiffs argue that OCGA § 15-13-1 creates a private right of action and functions as a waiver of “any immunity that may have applied,” but they cite no case law so stating, and we have found none. “The cardinal rule of statutory construction is to seek the intent of the Legislature, and language in one part of a statute must be construed in the light of the legislative intent as found in the statute as a whole.” Placed at the beginning of the statutory scheme governing officers of court generally, OCGA § 15-13-1 establishes a background premise that officers of court “shall be liable to all actions and disabilities which they incur” involving their offices. It does not purport to create or otherwise specify those actions; instead, the Code sections that follow specify how sheriffs and other officers of court can be subjected to certain actions.

For example, OCGA § 15-13-2 creates an action for damages against a sheriff for making a false return, neglecting to arrest a defendant, neglecting to levy on property, neglecting to pay money collected by legal process, or neglecting to make a proper return of process. Next, under OCGA § 15-13-3, named officers of court (including sheriffs and coroners) are made subject to demands to pay the proper parties money the officer may hold by virtue of his office. Under OCGA § 15-13-4, officers of court are subject to rules nisi, which shall be answered pursuant to OCGA § 15-13-5.

In light of this overall scheme, absent clear statutory language showing that OCGA § 15-13-1 itself functions as an independent right of action or as a waiver of official immunity, we decline to so hold. Instead, we read OCGA § 15-13-1 as consistent with current case law holding that sheriffs and other similar officials can be sued in their individual capacities and found personally liable for negligently performed ministerial acts.

Decided November 12, 2015

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Emily R. Hancock, for appellants.

The Helms Law Firm, J. Jeffrey Helms, William F. Holbert; Killian & Boyd, Roy J. Boyd, Jr.; Young Thagard Hoffman Smith & Lawrence, Daniel C. Hoffman, for appellees.

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

       (Citation, punctuation and footnote omitted.) Thomas v. Gregory, 332 Ga. App. 286, 287 (772 SE2d 382) (2015).

       OCGA § 50-21-25 (a).

       OCGA § 50-21-22 (7).

       See OCGA §§ 45-16-5; 45-16-8.

       See Nichols v. Prather, 286 Ga. App. 889, 893 (1) (650 SE2d 380) (2007).

       (Emphasis supplied.) See OCGA § 45-16-7 (a).

       See OCGA § 45-16-7 (c).

       OCGA § 45-16-11 (a) (1).

       OCGA § 45-16-11.2.

       OCGA § 45-16-80 (e).

       Cf. Nichols, 286 Ga. App. at 893 (1) (holding that sheriffs are county officials in part because they are subject to county elections and paid by county treasuries subject to county commission funding).

        Gilbert v. Richardson, 264 Ga. 744, 746 (2), n. 4 (452 SE2d 476) (1994).

       See, e.g., id. at 747-748 (2), (3) (holding that the State’s sovereign immunity extends to counties, absent a statutory waiver of immunity on the part of counties). See also Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (“Suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.”) (punctuation omitted).

       (Punctuation omitted.) Tattnall County v. Armstrong, 333 Ga. App. 46, 51, n. 9 (775 SE2d 573) (2015).

        See Austin v. Clark, 294 Ga. 773, 774 (755 SE2d 796) (2014).

       (Citations and punctuation omitted.) Id. at 774.

       OCGA § 45-16-31.

       Id.

       Id.

       See, e.g., Longino v. Hanley, 184 Ga. 328, 330 (191 SE 101) (1937) (“The words ... ‘are authorized to refund,’ according to ordinary signification, denote permission only.”). See generally City of Atlanta v. City of College Park, 292 Ga. 741, 744 (741 SE2d 147) (2013) (“[T]he fundamental rules of statutory construction ... require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.”) (punctuation omitted).

       OCGA § 45-16-31.

        Austin, 294 Ga. at 774.

       Id.

       Id. at 775.

       The complaint specifically alleges that Crosby failed to carry out his duty under [t]he Georgia Death Investigationf ] Act [OCGA § 45-16-20 etseq.]... as an elected County Coroner, [to] take possession [of] the body, until the medical examiner in Savannah could perform the autopsy, and take it to the nearby refrigerated public hospital morgue. Defendant Crosby chose not to do so and, in violation of the statute, instead chose to place the body in a poorly refrigerated shed behind his temporary private mortuary services.
      The plaintiffs do not argue that Crosby violated an internal policy outside the scope of statutory analysis.

       (Punctuation omitted.) Colon v. Fulton County, 294 Ga. 93, 98 (2) (751 SE2d 307) (2013).

       (Emphasis supplied.)

       Compare Barrett v. Marathon Investment Corp., 268 Ga. App. 196, 199 (4) (601 SE2d 516) (2004) (action premised on failure to disburse money under OCGA § 15-13-2 (4) was not barred by sovereign immunity).

       See, e.g., Nichols, 286 Ga. App. at 895-897 (4). Cf. Chadwick v. Stewart, 94 Ga. App. 329 (2) (94 SE2d 502) (1956) (citing former Code § 24-201 and holding that “[a] deputy sheriff transporting a prisoner in his custody from one place to another owes the prisoner the duty to exercise ordinary care while driving the vehicle in which the prisoner is required to ride”).


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A15A1128.
    SCHICK v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (779 SE2d 452)
   McMillian, Judge.

David Schick appeals from the final order of the trial court entered after a bench trial on his suit against the Board of Regents of the University System of Georgia (“Board”) seeking injunctive relief, penalties, and an award of attorney fees based on the alleged failure to comply with the provisions of Georgia’s Open Records Act (“Act”), OCGA § 50-18-70 et seq., in responding to two open record requests Schick submitted to the Board and Georgia Perimeter College (“GPC”) in July 2012. As more fully set forth below, we now reverse the trial court’s order in part and remand for further proceedings consistent with this opinion.

We decide the issues raised in this appeal under the following standard of review.

In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the “any evidence” rule, under which a finding by the trial court supported by any evidence must be upheld.

(Citations and punctuation omitted.) Singh v. Hammond, 292 Ga. 579, 581 (2) (740 SE2d 126) (2013). However, we apply a de novo standard of review to any questions of law decided by the trial court. Memar v. Jebraeilli, 303 Ga. App. 557, 558 (694 SE2d 172) (2010).

Viewed in this light, the record, including the trial transcripts and exhibits, shows the following. In May 2012, information was disseminated to the public concerning a $25 million budget shortfall at GPC, which appeared to precipitate the resignation of GPC’s president and the decision to lay off 282 full and part-time GPC faculty and staff. On July 16, 2012, Schick, who at that time was the editor-in-chief of GPC’s student-run newspaper, The Collegian, submitted an open records request to GPC seeking the production of “any and all documents and/or communication, including emails, produced during the decision-making process of the 282 lay offs at [GPC]” (“July 16 request”). On July 19, 2012, Amanda Reddick, GPC’s Human Resources Director for Affirmative Action Compliance and Open Records, informed Schick that it would cost approximately $927.99 to search, retrieve, and redact the requested records, and that she could not begin processing his request until an outstanding balance from a previous request by The Collegian had been paid. It is undisputed that the estimated costs were not paid and that GPC never produced any documents in response to the July 16 request.

On July 18, 2012, Schick submitted a different open records request to the Board (“July 18 request”). The July 18 request contained 15 numbered items, consisting primarily of requests for “any” or “all” communications between or to various Board and GPC employees during a specified time period, which ranged from a few months to approximately six years. That same day, John Millsaps, the Board’s Associate Vice Chancellor for Media and Publications, contacted Schick to seek clarification concerning the requested documents and to express his concerns about the breadth of the request and the time and costs associated with responding to such a broad request. However, Schick informed Millsaps that he did not wish to modify or narrow his request.

On July 23, 2012, Brenda Trezvant, Millsaps’ administrative assistant, notified Schick that it would cost approximately $2,536.29 to fulfill his request, cautioning him that this estimate was “conservative.” She also informed Schick that it would take approximately two weeks to search, retrieve, and review the documents responsive to his requests and that he needed to direct certain requests to GPC because the Board did not have e-mail accounts for some of the GPC staff and employees listed in the requests. Schick testified that he was “shocked” by this estimate, and on August 3, 2012, Schick sent Trezvant an e-mail requesting an itemized list of costs. Trezvant replied that same day with a breakdown, which indicated that some of the costs were associated with review for “extraction because of an open investigation.” However, Trezvant’s response did not contain a citation to any statutory exemption which might authorize the Board to withhold any of the requested documents, as required by OCGA § 50-18-71 (d).

Schick continued to question the accuracy of the cost estimate, and the executive director of the national Student Press Law Center sent correspondence on his behalf requesting that the Board reassess the costs associated with producing the requested documents. The Board agreed to eliminate some of the review costs, and on September 6, 2012, the Board notified Schick that it had revised the estimate downward to $1,882.98. However, Schick remained convinced that the Board’s cost estimate was too high, and on September 24,2012, he sent Millsaps an e-mail directing him to “hold off” on the July 18 request and proceed with a new request for information related to the calculation of costs for previous open records requests. Ultimately, however, Schick obtained the assistance of his present counsel to assist him in negotiating the costs, and on October 24, 2012, the Board notified Schick that it would eliminate the review costs and produce the requested materials for a total cost of $291.

The Board then began to retrieve, review, and redact the documents responsive to the July 18 request. Because of the volume of documents that were retrieved in response to Schick’s request, the Board decided to set up the review process on a “rolling” basis. Under this method, the documents were passed through the chain of review in a piecemeal fashion, with the first person in the chain passing along documents in batches as they completed their review instead of any one person reviewing the entire set of documents before delivering them to another person in the review process. According to Millsaps, this allowed for an on-going, and presumably faster, production of documents to Schick, although there was a greater potential for documents to be misplaced. Further, although it appears undisputed that the primary purpose of the review was to redact protected information and to identify documents that were possibly subject to exemption, the Board continued to review the documents without notifying Schick of any statutory or other basis upon which they were relying to withhold documents from disclosure.

The first set of documents, which consisted of approximately 3,651 pages, was produced to Schick on December 6, 2012, and the second set of documents was produced to Schick on February 22, 2013. At that point, Schick had been provided with approximately 12,195 pages of responsive documents, and Millsaps notified Schick that the Board’s response to his July 18 request was now complete and sent him an invoice for the search and retrieval fees. However, Schick did not believe that all the documents responsive to his request had been produced, and he continued to contact the Board and Millsaps in particular to inquire about the “missing” documents. Although Millsaps assured Schick that the Board’s response was complete, on June 10, 2013, Schick filed the present suit against the Board seeking, inter alia, production of any documents responsive to his request that the Board had not yet produced. The Board filed an answertoSchick’scomplaint,citingforthefirsttimeOCGA§ 50-18-72, and in particular OCGA § 50-18-72 (a) (4), as the basis for redacting or withholding from disclosure certain of the requested documents. Approximately two months later, on August 5, 2013, the Board sent Schick a CD containing 713 pages of previously undisclosed documents, which had recently been discovered.

Following a three-day bench trial, the trial court entered an extensive order finding, among other things, that the Board had violated the Act by failing to designate the specific exemptions upon which it relied in withholding documents from disclosure as required by OCGA § 50-18-71 (d) and assessed a $1,000 civil penalty against the Board based on this violation. However, the trial court went on to find that the Board was entitled to withhold documents under OCGA § 50-18-72 (a) (4) and conducted an in-camera inspection to determine if any responsive documents continued to qualify for exemption under that section. The trial court also found that the Board’s belated production of the 713 pages of documents in August 2013 was a violation of the Act, but declined to award attorney fees based on this or any other violation. Schick now challenges the trial court’s order to the extent the trial court found that the Board was entitled to withhold certain documents under OCGA § 50-18-72 (a) (4) and by failing to award him attorney fees. As more fully set forth below, we agree with Schick that the trial court erred by finding that OCGA § 50-18-72 (a) (4) applies here and, in light of this holding, find it necessary to remand this case to the trial court to reconsider whether Schick is entitled to an award of attorney fees under OCGA § 50-18-73 (b).

1. In related arguments, Schick first contends the trial court erred by finding that the Board was entitled to withhold certain responsive records from disclosure based on the “pending investigation” exemption contained in OCGA § 50-18-72 (a) (4).

We begin our analysis by reviewing the statutory framework of the Open Records Act. Our General Assembly has expressly declared that “public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.” OCGA § 50-18-70 (a). To further this end, all public records are deemed subject to disclosure, “except those which by order of a court of this state or by law are specifically exempted from disclosure.” OCGA § 50-18-71 (a). Accordingly, the legislature has further directed that the Act be “broadly construed to allow the inspection of government records,” OCGA § 50-18-70 (a), while the exceptions to disclosure “shall be interpreted narrowly to exclude only those portions of records addressed by such exception.” Id.; see also OCGA § 50-18-71 (a); City of Atlanta v. Corey Entertainment, Inc., 278 Ga. 474, 476 (1) (604 SE2d 140) (2004). The Act is designed to make the production of records expeditious, and the responding agency is required to produce all records responsive to the request within a reasonable amount of time, “not to exceed three business days of receipt of a request.” OCGA § 50-18-71 (b) (1) (A). And if any, or any part, of the requested records are withheld from disclosure, “the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days[.]” OCGA § 50-18-71 (d).

The exemption at issue in this case is contained in subsection OCGA § 50-18-72 (a) (4), and exempts:

Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution[.]

(Emphasis supplied.) In its order, the trial court questioned whether the Board fits within the definition of “law enforcement, prosecution, or regulatory” agency, but went on to hold “that because of the Board’s unique situation and wise use of resources, the Board may avail itself of the exemption — at least as long as the investigations at issue remain pending.” On appeal, the Board appears to abandon any argument that it should be classified as a law enforcement, prosecutorial or regulatory agency, contending instead that the Board is entitled to invoke the exemption when it has “gathered and/or created” documents that are part of an investigation that involves criminal conduct. Thus, the Board argues, “as long as [it] asserts the exemption only with regard to documents relating to an ongoing criminal investigation in which the Board is working in cooperation with a ‘law enforcement agency,’ the exemption should apply to any documents in the Board’s custody while the criminal investigation is pending.” (Emphasis supplied.)

Accordingly, we turn first to the text of OCGA § 50-18-72 (a) (4) to determine its scope.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.... Applying these principles, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013).

There appears to be nothing ambiguous, and the Board does not suggest otherwise, about the phrase “records of” as used in subsection (a) (4). But the Board’s reading of the statute requires us to change the obvious meaning of “records of” to a more expansive “records compiled or created in connection with,” or “records related or pertaining to,” instead of what the statute says. “[A] statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation.” (Citations and punctuation omitted.) Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 822 (1) (743 SE2d 492) (2013). Gordon v. Atlanta Cas. Co., 279 Ga. 148, 149 (611 SE2d 24) (2005) (we should never “by construction add to, take from, or vary the meaning of unambiguous words in the statute”).

Further, the Board’s construction ignores that the legislature also enacted a separate exemption applicable to “records compiled for law enforcement or prosecution purposes.” (Emphasis supplied.) OCGA § 50-18-72 (a) (3). Thus, reading these subsections, which appear in the same Code section and concern very similar subject matter, in pari materia, it is clear that the legislature intended to provide for two different exemptions related generally to law enforcement or prosecution activities: one that broadly applies to any public agency but limits the exemption to investigative or prosecutorial documents “to the extent” those documents meet other criteria (subsection (a) (3)) and one that applies to only specified public agencies but includes a broader category of documents (subsection (a) (4)). “In particular, statutes ‘in pari materia’, i.e., statutes relating to the same subject matter, must be construed together.” (Citation and punctuation omitted.) U.S. Bank N.A. v. Gordon, 289 Ga. 12, 15 (4) (709 SE2d 258) (2011). As a fundamental principle of statutory construction, we “endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless.” Aimwell, Inc. v. McLendon Enterprises, Inc., 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012). Moreover, “courts should always strive to give effect to the purpose and intent of the legislature,” Parker v. Lee, 259 Ga. 195, 198 (4) (378 SE2d 677) (1989), and this is particularly true “in the instant case, [where] we have a specific admonition by the General Assembly to construe OCGA § 50-18-72 (a) (4) narrowly.” Id. Indeed, our Supreme Court has stated that “any purported statutory exemption from disclosure under the Open Records Act must be narrowly construed.” (Emphasis in original.) Hardaway Co. v. Rives, 262 Ga. 631, 634 (2) (422 SE2d 854) (1992). See also Bd. of Regents of the Univ. Sys. of Ga. v. Atlanta Journal & Const., 259 Ga. 214, 215 (2) (378 SE2d 305) (1989). The Board’s expansive reading of OCGA § 50-18-72 (a) (4) is directly contrary to this directive and contravenes the legislative intent as expressed in the Act that it should be construed in favor of, not against, disclosure.

For all these reasons, we conclude that the trial court erred by finding the Board could rely on the exemption from disclosure contained in OCGA § 50-18-72 (a) (4) to withhold certain requested records. Accordingly, we reverse the holding of the trial court and remand with direction that the Board disclose all records that it continues to withhold solely on the basis of exemption contained in OCGA § 50-18-72 (a) (4). However, the trial court may conduct further in-camera proceedings to determine if any of the withheld records may be exempt from disclosure under another provision of the Act invoked by the Board.

2. Schick also argues that the trial court erred by refusing to award attorney fees pursuant to OCGA § 50-18-73 (b) based on the Board’s multiple violations of the Act, which he contends were without substantial justification. That section provides:

In any action brought to enforce the provisions of this chapter in which the court determines that either party acted without substantial justification either in not complying with this chapter or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney’s fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.

Although the trial court has determined that the Board violated several provisions of the Act in responding to Schick’s July 18 request, Schick is only entitled to attorney fees if he also shows that the Board’s failure to comply with the Act was without substantial justification. Wallace v. Greene County, 21A Ga. App. 776, 781 (2) (618 SE2d 642) (2005) (“if a violation of the [Act] did in fact occur, [the plaintiff] must show that the [responding agency] lacked substantial justification for the violation”) (citation and punctuation omitted). Schick contends on appeal that the trial court erred by finding that the Board’s late production of certain documents was substantially justified, pointing out that the Board failed to show exactly why or where those documents went missing or any of the circumstances surrounding their discovery. But the statute directs that the issue of substantial justification “be determined on the basis of the record as a whole.” OCGA § 50-18-73 (b).

Here, the trial court, following a three-day bench trial, noted that the late production consisted of less than six percent of the total number of records produced and determined that there was no evidence these documents were singled out for delay or otherwise intentionally withheld. Further, the evidence supports the trial court’s findings that the members of the Board and employees who were involved in the review process worked diligently to fulfill Schick’s request and that they worked nights or during the holidays as necessary in order to meet their normal work responsibilities and respond expeditiously to Schick’s request. In light of this and the other surrounding circumstances, we find that there was ample evidence to support the trial court’s factual findings and thus the trial court did not abuse its discretion in refusing to award Schick attorney fees based on the Board’s belated production of 713 pages of records. Everett v. Bast, 272 Ga. App. 636, 636 (612 SE2d 925) (2005) (“[t]he standard of appellate review is whether the trial court abused its discretion in failing to award attorney fees and expenses of litigation”).

Decided November 12, 2015.

Clements & Sweet, Daniel S. Levitas, for appellant.

Samuel S. Olens, Attorney General, Julia B. Anderson, Senior Assistant Attorney General, Kelly E. Campanella, Assistant Attorney General, for appellee.

However, that does not end our consideration of the attorney fees issue. Because we have determined that the trial court erred by allowing the Board to withhold documents under the exemption contained in OCGA § 50-18-72 (a) (4), we must also remand this case for the trial court to consider whether Schick is entitled to attorney fees based on the Board’s failure to disclose certain documents based on that exemption.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Barnes, P. J., and Ray, J., concur.

       GPC is not a separate legal entity from the Board and, accordingly, cannot sue or be sued. See Bd. of Regents of the Univ. Sys. of Ga. v. Doe, 278 Ga. App. 878, n. 1 (630 SE2d 85) (2006).

       Pursuant to OCGA § 50-18-71 (d), an agency may require prepayment if the estimated costs for production of the requested records exceeds $500.

       Schick also requested the minutes from a meeting held on May 9, 2012, and a specified PowerPoint presentation.

       The trial court also found that GPC had failed to comply with the Act by failing to provide a timeline in response to Schick’s July 16 request, but that portion of the trial court’s order is not at issue in this appeal.

       “Agency” and “public record” as used in the Act are defined in OCGA § 50-18-70 (b) (1) and (2), respectively.

       We note that after Schick filed his complaint, the Board also invoked the exemption set out in OCGA § 50-18-72 (a) (8), which exempts records obtained in investigations related to the suspension, firing or investigation of complaints against public employees, but he does not appear to challenge the Board’s right to invoke that exception. Likewise, although the Board states in its brief in support of its motion for summary judgment that “a few documents were withheld pursuant to the exemptions contained in OCGA § 50-18-72 (a) (11) and (20),” which pertain, respectively, to records containing certain employment information and personal information, Schick does not challenge the Board’s failure to disclose based on those exceptions.

       Although we will confine ourselves to the issues briefed by the parties, we note that under a similar statute, OCGA § 50-14-1 et seq., our Supreme Court has held that a coroner is not a law enforcement agency as that term is used in the “excluded proceedings” provision of Georgia’s Open Meetings Act. Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (2) (405 SE2d 655) (1991); OCGA § 50-14-3.

       It does not appear that the Board has asserted that any of the documents at issue would he exempt under subsection (a) (3), which is limited to documents that are “reasonably likely to disclose the identity of a confidential source, disclose confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or disclose the existence of a confidential surveillance or investigation].]” OCGA § 50-18-72 (a) (3).

       Although the Board cites the need to protect privacy interests and the integrity of criminal investigations as compelling reasons to adopt the Board’s construction of the statute, the Board ignores that the legislature has already addressed these concerns by enacting OCGA § 50-18-72 (a) (3) and (a) (8). Moreover, even if we recognized the salutary effect of the Board’s construction, we do not have the authority to rewrite the statute. State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006).

       We do not know the exact number of documents that were originally or continue to be withheld, although the trial court indicated that most of the requested documents have, or would be disclosed because the investigations were no longer “pending.”

       Again, however, we stress that the Board has also invoked other exemptions, and Schick would not be entitled to attorney fees based on the failure to disclose any documents that were properly withheld pursuant to other exemptions.


author: ANDREWS, Presiding Judge.

text:
    A15A1151.
    ESPOSITO v. PHARR COURT ASSOCIATES, L.P.
    (779 SE2d 675)
   ANDREWS, Presiding Judge.

After suffering a fall while visiting her husband who was a resident at a nursing home operated by Pharr Court Associates, L.P., d/b/a Nurse Care of Buckhead (“Pharr Court”), Barbara Esposito commenced this action against Pharr Court asserting negligence claims. The trial court granted summary judgment for Pharr Court, concluding Esposito was a licensee when she entered the nursing home and Pharr Court did not breach the duty it owed her in that capacity. On appeal, Esposito contends the trial court erred in determining she was a licensee rather than an invitee, and that issues of material fact exist as to whether Pharr Court breached its duty to her as either an invitee or licensee.

“We apply a de novo standard of review 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.” (Citation and punctuation omitted.) Bonner v. Southern Restaurant Group, 271 Ga. App. 497 (610 SE2d 129) (2005). So viewed, the record shows that on the afternoon of July 25, 2011, Esposito arrived at the Nurse Care of Buckhead facility to visit her husband, who had resided there for approximately a year but was going to be discharged the following day. Esposito testified that she visited her husband at the nursing home every day for seven to eight hours and did “everything with him,” accompanying him to eat and assisting with his grooming and care. After entering the facility on the date in question, Esposito walked toward an elevator located across the entrance lobby to the right. The reception desk was situated to Esposito’s right as she walked in and across the lobby to the elevator. Just before pushing the button for the elevator, Esposito remembered that her husband might be in physical therapy, so she stepped over to the left to look through the doors of the physical therapy room, which was down a hallway to the left of the elevator. As she moved to the left, her feet slid out from under her and up in the air and she came crashing down on her left side and hit her right elbow.

After landing on the floor, Esposito realized she had fallen in diarrhea. Esposito testified that there was a large puddle of diarrhea on the floor where she fell and that when she was on the ground she noticed another smaller puddle in front of the elevator on the other side of the hallway leading to the physical therapy room. Esposito also testified that she was told later that there was also some diarrhea in the elevator she had been planning to take.

Esposito did not know how long the diarrhea had been there, and she noticed no footprints around it. Esposito did not see any residents before she fell, but she stated that afterward, three residents, who were in wheelchairs, came to her assistance. Esposito did not see any nursing home employees from the time she walked into the building until the time she fell. She stated that she did not recall seeing anyone sitting in the reception desk on the day of the incident. After she fell, two staff members came to her aid and helped her into a wheelchair.

Dynasty Gates was the receptionist at Nurse Care of Buckhead on the afternoon of July 25, 2011 and witnessed Esposito fall. Gates testified that she could see the entire lobby from her desk and that the nursing home’s policy is that someone should always be at the front desk. Gates testified that she saw Esposito get off the elevator, turn like she was going toward the physical therapy room, and then slip and fall on her right side. When Gates saw Esposito fall, she called “stat” over the intercom to alert other staff members that an accident had occurred. Gates realized something had been on the floor only after someone placed the cup Esposito had been carrying on her desk and she noticed the odor. While other staff members were standing around Esposito to assist her, Gates walked up and then saw the diarrhea. Gates testified that the diarrhea was “camouflaged” by the floor, which was light tan and brown. Gates stated she could not specify the size of the puddle because she did not stay long to look but also stated that it was not bigger than the size of a normal piece of paper.

Gates recounted that approximately one or two minutes before she saw Esposito get off the elevator and fall, one of the residents had come downstairs on the elevator. That resident liked to sit in the physical therapy hallway and went to sit there after she got off the elevator. The resident was in a wheelchair and wore a diaper. Gates did not notice any smell in the intervening minutes before Esposito fell. Gates stated that her job responsibilities included making sure the lobby area was clean. If anything was on the floor, she would put up wet floor signs if necessary and either clean it up herself or call a floor tech to do it. Gates stated that she got up about every five minutes because she was always helping residents get on and off the elevators.

Temeka Johnson, the assistant administrator at Nurse Care of Buckhead, was one of the staff members who responded to help Esposito after the fall. Johnson’s office was located on a hallway off the right side of the lobby from the entrance. As soon as Johnson walked out of her office, she could see the brown substance in which Esposito had fallen, and she testified that the substance was easy to see. Johnson stated that the puddle was bigger than a sheet of paper but smaller than four by six feet and that she did not recall seeing diarrhea in any area other than where Esposito fell. An engineer retained by Esposito measured the distance between the approximate location of the diarrhea and the area where the receptionist would have been seated as approximately 15 to 18 feet, and the distance to Johnson’s office as approximately 40 feet.

Karen Joseph, the director of nursing at Nurse Care of Buck-head, testified that staff were trained that visitors were their customers and received instruction on proper etiquette with visitors. Joseph acknowledged Esposito was very involved in her husband’s care.

1. OCGA § 51-3-2 (a) defines a licensee as a person who: “(1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” In granting summary judgment for the defendant, the trial court found (1) that Esposito was on the subject property only for her own interest and convenience and therefore was a licensee to whom Pharr Court only owed a duty not to wilfully or wantonly injure her, and (2) that there was no evidence Pharr Court knowingly exposed Esposito to the peril or wilfully caused her injury. Ellis v. Hadnott, 282 Ga. App. 584 (639 SE2d 559) (2006).

The mutuality of interest required to make one an invitee upon the premises of another does not mean that there must be a commercial business transaction between the parties. It is sufficient to show that each party is moved by a lawful purpose or interest in the object and subject matter of the invitation. The visitor is an invitee if the enterprise is mutual, each lawfully interested therein or there being a common interest or mutual advantage involved. A monetary consideration is not essential.

Candler Gen. Hosp. v. Purvis, 123 Ga. App. 334, 336 (2) (181 SE2d 77) (1971). In the instant case, where Esposito provided much of the daily care for her husband, which obviously lightened the burden of the nursing home staff, and where Pharr Court’s own director of nursing considered visitors to be customers, we find there was an issue of fact created as to Esposito’s status as a licensee or invitee. See also Jones v. Monroe Nursing Home, 149 Ga. App. 582 (254 SE2d 902) (1979).

2. A landowner or occupier of premises owes a duty to licensees only to avoid wilfully or wantonly injuring them. OCGA § 51-3-2. “This statutory liability for wilful or wanton injury to licensees means that £[t]he landowner or occupier of the premises owes a duty to a licensee only to avoid knowingly letting him run upon a hidden peril or wilfully causing him harm.’ ” (Citation omitted.) Ellis v. Hadnott, supra at 585. There was no evidence of a breach of that duty at all in the instant case.

In order to recover for injuries sustained in a slip and fall action, an invitee must prove that the premises owner had actual or constructive knowledge of the hazard, and that the plaintiff lacked knowledge of it. Hayward v. Kroger Co., 317 Ga. App. 795 (733 SE2d 7) (2012).

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

Decided November 12, 2015.

R. Michael Coker, for appellant.

Hanks Brookes, Craig A. Brookes, Karen L. Smiley, for appellee.

(Citations omitted.) Bolton v. Wal-Mart Stores, 257 Ga. App. 198 (570 SE2d 643) (2002).

“Showing that an employee was in the vicinity of a foreign substance is not sufficient to preclude summary judgment. It must be shown that the employee was in a position to have easily seen the substance and removed it.” (Citations omitted.) Bolton v. Wal-Mart Stores, supra at 198.

In the instant case, the evidence is undisputed that the appellee’s receptionist was seated behind her desk approximately 15 to 18 feet away from where Esposito fell, but that she had not seen the substance on the floor until she got up from her desk after the fall. The receptionist also indicated the nursing home’s administrator frequently emphasized the necessity of keeping the lobby area clean and free of hazards, and of placing warning signs when needed, and to that end she usually got up from her desk and looked around about every five minutes. On the day of the incident, the diarrhea apparently leaked from the diaper of a resident who exited the elevator only a minute or two before Esposito traversed the same area.

Under these circumstances, there was no showing the appellee had knowledge of the substance on the floor, or that it had time to discover the substance even with the frequent lobby inspections conducted by the receptionist. For the above reasons, regardless of whether Esposito was a licensee or an invitee, the trial court’s grant of summary judgment for the appellee was proper.

Judgment affirmed.

Miller and Branch, JJ., concur.


text:
    A15A1312.
    NEWMAN v. THE STATE.
    (779 SE2d 678)
   Doyle, Chief Judge.

Brandon Newman was convicted of two counts of first degree homicide by vehicle, serious injury by vehicle, driving under the influence of alcohol (“DUI less safe”), driving with excessive blood alcohol concentration (“DUI per se”), and reckless driving. Newman appeals, arguing that (1) the trial court abused its discretion by overruling his motion for mistrial and denying a curative instruction based on the prosecutor’s statements about Newman’s request for an instruction on a lesser included offense; and (2) the trial court erred by excluding evidence related to Newman’s expert’s experience. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the verdict, the record shows that in the early morning hours of May 13, 2007, after attending a house party, Newman was driving his truck with Cameron Newman, Mallory Jason, and Sara Boykin as passengers. According to Boykin, beer, alcoholic punch, gelatin spiked with alcohol (“Jell-0 shots”), and grain alcohol were served at the party, and Newman admitted to consuming two Jell-0 shots and two beers. Boykin did not recall that Newman appeared intoxicated, that he was driving recklessly, or that he was speeding.

After stopping briefly to drop off a fifth passenger, the four were traveling in wet, foggy conditions on Harlem-Grovetown Road followed by another friend, Randy Cook, who drove an SUV. Cook passed Newman’s truck, and Newman then successfully passed Cook’s SUV, but while Cook attempted to pass Newman again, Newman’s truck left the roadway at a curve in the road, slid down an embankment, and struck a tree sideways. Cameron and Mallory died from their injuries, and Boykin was ejected from the vehicle, sustaining injuries including skull fractures; tinnitus; fractured vertebrae, femur, collarbone, wrist, and hand; and a bruised lung.

The State presented an accident reconstruction expert, who testified that Newman’s vehicle was traveling between 74-80 miles per hour when it left the road, and 64.9 miles per hour was the highest speed at which a driver could successfully negotiate the turn.

The State’s toxicologist testified that Newman’s blood alcohol level was 0.097 grams per 100 milliliters of blood, and his blood tested positive for the presence of THC, the active ingredient in marijuana.

Newman testified that he was driving at the speed limit of 45 miles per hour, that he did not pass Cook’s vehicle, and that Cook’s vehicle hit him, leading to the accident, but at trial, Cook denied hitting Newman’s vehicle. Newman presented rebuttal witnesses who stated that Cook admitted to causing the accident. Newman also presented the testimony of Ralph Cunningham, an accident reconstructionist, who testified that Newman’s vehicle was traveling at about 50 miles per hour when it left the roadway, not 74-80. Finally, Newman presented the testimony of Warren James Woodford, who challenged the State’s toxicology report and testified that at the time of the crash, Newman’s blood alcohol level was between 0.047 and 0.067 grams of alcohol per 100 milliliters.

A first trial resulted in a hung jury. At the conclusion of the second trial, however, the jury found Newman guilty of all the charges except open container. Newman filed a motion for new trial, amended motion for new trial, and second amended motion for new trial in which he raised the two errors enumerated here. The trial court denied the motion, finding that the prosecutor’s comment related to the lesser included offense did not result in a fundamentally unfair trial and finding that the evidence related to the expert’s experience was properly excluded pursuant to Dooley v. State because it related to other methods of measuring a person’s blood alcohol level.

1. Newman argues that the trial court erred by failing to rebuke the prosecutor, to give a proper limiting instruction, or to grant a mistrial when he objected to the prosecutor’s statement during closing that “[n]ow[,] the defense has requested a charge of homicide by vehicle in the second degree,” which Newman contends constituted injection of facts not in evidence and commented on his guilt or innocence.

OCGA § 17-8-75 provides [that if] counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender. Pursuant to this Code section, a trial court has an independent duty, after defense counsel’s objection, to rebuke the prosecutor, give an appropriate curative instruction, or grant a mistrial in the event that the prosecutor has injected into the case prejudicial statements on matters outside of the evidence.

A prosecutor

may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard. What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair. The language used in argument may be extravagant; but figurative speech is a legitimate weapon in forensic warfare if there are facts admissible in evidence upon which it may be founded.

In this case, although the prosecutor should have refrained from mentioning that Newman requested the lesser included charge, we discern no error in the trial court’s failure to give a curative instruction or grant a mistrial based on the prosecutor’s statement. The statement came at the end of a discussion of Newman’s testimony:

[THE STATE]: And perhaps the most cruelly ironic twist of the entire trial the defendant had the nerve to get on the stand and say all of this prosecution is just not fair. It’s not fair. Mallory Jason lost her life. Cameron Newman lost his life. Sarah Boykin will never be the same. The defendant was drinking that night. He was reckless that night. And he has the gall to sit on this chair and tell you this ain’t fair to him. Give me a break. This is unfair to a lot of people. This isn’t fair to that family. This is unfair to that family. And God bless them as they deal with this emotion. But they’ve got one person to blame [,] and he’s sitting in that chair. And you know what, it is his fault. And it is time for him to be accountable for it. He won’t make himself accountable, you have that chance.
Now the defense has requested a charge of homicide by vehicle in the second degree. And let’s explain a little bit about what that is. It’s a lesser included offense of homicide by vehicle in the first degree. And what you would need to do in your verdict is find him guilty of either homicide by vehicle in the first degree, homicide by vehicle in the second degree, or not guilty.

At this point, the defendant interposed an objection. The prosecutor resumed his closing again before the defendant interposed another objection, and the court took a recess. The trial court declined to give a curative instruction because the court believed that “sometimes curative instructions really bring more emphasis to a particular area and the harm outweighs the benefit.” The trial court determined that the general instruction about the court being the instructor on the law would be the best answer to the objection “[bjecause if [the court] give[s] that instruction and then [the court] get[s] into what [the defense attorney] was saying about [what the prosecutor is] saying the judge is going to tell you this and the judge is going to — it just could create a quagmire and I’d rather not do that.”

The type of instruction that is necessary after the prosecuting attorney makes a statement about a prejudicial matter not in evidence will vary depending upon the prejudicial impact of the prosecutor’s statement, with specific instructions being necessary in particularly prejudicial cases, and general instructions sufficing in most cases.

Although a failure to give a more specific instruction or grant a mistrial can constitute reversible error, “the error is subject to application of harmless error analysis.”

Although Newman is correct that there was a great deal of evidence presented in his defense, the statement at issue was a passing reference only and still unlikely to have caused a different result in the verdict. The trial court provided valid reasons to avoid a specific instruction on the issue in its oral ruling, including potential confusion to the jury and prejudice to the defendant. Moreover, the trial court instructed the jury generally on the requirement that the State prove every element of a crime, that the statements made by the attorneys were not evidence in the case, and that only the court itself could instruct the jury on the law. Finally, Newman completely denied driving recklessly during his testimony at trial, and thus, Newman did not assert the lesser included as a defense. Based on the foregoing and the evidence presented by the defense in support of the jury’s verdicts, it is highly probable that any error on the part of the trial court in failing to instruct the jury further regarding the statement did not contribute to the guilty verdict. Accordingly, there is no merit to this enumeration of error.

Decided November 12, 2015

Victor C. Hawk, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

2. Newman next argues that the trial court improperly barred him from introducing evidence that his expert witness on blood alcohol testing helped end the use of the Intoximeter 3000. As the State argues in response, however, the toxicologist tested Newman’s blood using gas chromatography, and the trial court did not abuse its discretion by preventing potentially confusing testimony regarding another testing method, which the State did not employ in this case. The trial court allowed the expert to attack the toxicologist’s methodology, and he was able to provide his own opinion as to Newman’s blood alcohol limit, which he opined was lower than the level testified to by the State’s witnesses. Accordingly, we discern no abuse of discretion.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 40-6-393 (a).

       OCGA § 40-6-394.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-390 (a). Newman was acquitted on an open container charge. See OCGA § 40-6-253 (b) (1) (B).

       See Chernowski v. State, 330 Ga. App. 702, 703 (769 SE2d 126) (2015).

       221 Ga. App. 245, 246-247 (4) (470 SE2d 803) (1996).

       This type of prosecutor comment has not come before Georgia’s appellate courts often, and thus, we have little case law upon which to rely. See People v. Lungberg, 2006 Cal. App. Unpub. LEXIS 3676 at *44 (3) (E) (Apr. 25, 2006).

       (Punctuation and footnote omitted.) Holsey v. State, 316 Ga. App. 801, 804 (2) (729 SE2d 465) (2012).

       (Citations and punctuation omitted.) Stancil v. State, 158 Ga. App. 147, 148 (2) (279 SE2d 457) (1981).

       (Punctuation omitted.) Jones v. State, 292 Ga. 656, 662 (2) (740 SE2d 590) (2013).

       (Punctuation omitted.) Walker v. State, 281 Ga. 521, 524 (5) (640 SE2d 274) (2007).

       See id.

       SeeOCGA § 24-2-1 (2012) (“Evidence must relate to the questions being triedby the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.”); Viau v. State, 260 Ga. App. 96, 98-99 (2) (579 SE2d 52) (2003) (physical precedent only) (“The decision to exclude expert testimony lies within the trial court’s sound discretion, and this court will not disturb it absent a clear abuse of discretion.”). See also Dooley, 221 Ga. App. at 247 (4) (“Cross-examination regarding [one testing mechanism] would be irrelevant in a case where only [another testing mechanism] was utilized.”).


text:
    A15A1419.
    STANDARD v. FALSTAD et al.
    (779 SE2d 682)
   ANDREWS, Presiding Judge.

Christy R. Standard sued Nathan Falstad and his employer, Wal-Mart Stores East, L.P., for maliciously prosecuting her for the offense of felony theft by shoplifting, and for intentional infliction of emotional distress, and sought the imposition of punitive damages and the award of attorney fees pursuant to OCGA § 13-6-11. Standard appeals from the trial court’s grant of summary judgment in favor of Wal-Mart. For the following reasons, we affirm.

The relevant facts are undisputed. Falstad worked for a WalMart store in Peachtree City as an “Asset Protection Associate” trained in shoplifting investigations and prosecutions. On April 5, 2011, video cameras at the Wal-Mart store where Falstad worked recorded a woman attempting to steal a television from the store by bringing an empty television box into the store and obtaining a “return sticker” (representing that the box contained returned merchandise); then leaving the empty box in the store; placing a similar boxed television in her shopping cart; removing the store’s security device from the box; and attempting to leave the store with the television without paying for it. Falstad was alerted when the security device was detached, at which point he saw the woman with the shopping cart and television already past the registers attempting to walk out the front door of the store. When a Wal-Mart “People Greeter” asked for a receipt, the woman left the cart and the television, walked to her car, and drove away. Falstad followed the woman from a distance as she walked to her car, saw the license plate on the car, and wrote down the number. While following the woman from behind, Falstad did not speak to the woman or see her from the front and did not see her face. Falstad then returned to the store and reviewed the store video which contained various images of the woman from the front and side showing her face. On the same day, Falstad contacted the Peachtree City Police Department; reported the woman’s actions to a police officer; showed the officer the store’s video of the woman; and gave the officer the license number from the woman’s car. The officer’s affidavit confirms that he conducted a search on the car’s license number; determined that the car with that license number (a silver 2006 Mazda 3) was registered to Christy R. Standard; and searched for and obtained Standard’s driver’s license registration information. The officer further states that he concluded “Ms. Standard appeared to have a similar driver’s license photograph as the female seen in the security video,” but that he told Falstad “that there was not sufficient evidence of an attempted theft at that point to pursue any criminal charges.” Nevertheless, based on his personal observations, the store’s video, and the information obtained by the police officer, Falstad submitted an application on April 7,2011 to the Magistrate Court of Fayette County for a criminal arrest warrant for Standard’s arrest for the offense of theft by shoplifting. Based on the application, the magistrate court scheduled a “preissuance hearing” for May 11, 2011 for the purpose of determining if there was probable cause to issue the arrest warrant.

Falstad and Standard were notified and appeared at the hearing. Falstad gave sworn testimony describing the woman’s actions at the store on April 5, 2011 that he personally witnessed, describing the woman’s actions that he saw on the store’s video, and describing his report to the police and the police investigation showing that the license number he saw on the car driven by the woman belonged to a car registered to Standard. Standard gave sworn testimony that she was not the woman seen by Falstad at the store or on the video; that she was at home all day on April 5, 2011 recovering from being hospitalized; and that her husband had her car. Standard testified that she drove a Mazda 3 but that she did not know the license number. In response to Standard’s denial that she was the woman at the Wal-Mart store, Falstad stated under oath: “Okay [,] well someone who looks very similar to you.” When the magistrate judge commented that Falstad was “saying that [Standard] is in the video,” Standard asked the magistrate judge to compel Falstad to produce the video, but the judge refused. After hearing testimony from Falstad and Standard, the magistrate judge found that Falstad’s testimony was sufficient to establish probable cause, and the judge immediately issued the arrest warrant and set bond at $2,000. Standard testified by deposition that she was arrested immediately after the magistrate court probable cause hearing on May 11, 2011; that she posted bond and was released about 16 hours after she was arrested; and that, after the probable cause hearing, she had no other court appearances on the charge. On June 16, 2011, the Fayette County district attorney filed a document captioned “Dismissal” in the magistrate court referencing the warrant number on which Standard was arrested, and stating that the State “hereby dismisses the above charge for the following reason: Insufficient evidence to secure a conviction beyond a reasonable doubt.” Falstad subsequently testified by deposition that he had an opportunity to see Standard at the probable cause hearing on May 11,2011, and that the sworn testimony he gave at the hearing in support of the application for an arrest warrant was based on his belief at the time that Standard was the woman he saw in the store video. A subsequent affidavit from an investigator in the district attorney’s office stated that the investigator spoke with Falstad on June 3,2011; that Falstad told him Standard “was not the same woman he saw shoplifting in reference to the charge he was pursuing”; and that he advised Falstad “that [the district attorney’s office] would be dismissing the case against Standard, which he understood as the reasonable thing to do.” Although the record contains evidence that Standard, Standard’s ex-husband, and Standard’s grandparents testified that they did not recognize the woman shown in the store video, Standard’s cousins testified that they recognized the woman shown in the video as Standard’s mother.

Standard does not dispute that the woman’s actions, as shown in the store’s video, provided probable cause to issue an arrest warrant for theft by shoplifting. See OCGA § 16-8-14 (a). Rather, Standard contended in response to the motion for summary judgment that she was not the woman shown in the video, and that Falstad (and his employer, Wal-Mart, on the basis of respondeat superior) maliciously prosecuted her for shoplifting despite knowing that she was not the woman in the video.

In order to prevail on a claim for malicious prosecution, a plaintiff must show the following: (1) a criminal prosecution; (2) instigated without probable cause; (3) with malice; (4) pursuant to a valid warrant, accusation, or summons; (5) that terminated in the plaintiff’s favor; and (6) caused the plaintiff damage.

McNeely v. Home Depot, 275 Ga. App. 480, 482 (621 SE2d 473) (2005) (citation, punctuation and footnote omitted). “For purposes of such claim, the prosecution must be ‘carried on,’ which requires ‘an inquiry before a committing court.’ Swift v. Witchard, 103 Ga. 193, 196 (2) (29 SE 762) (1897).” McNeely, 275 Ga. App. at 482; OCGA §§ 51-7-40; 51-7-42. This means “when instituted, the prosecution has been carried on so far as to bring the person charged before some officer, body or authority invested by law with the power and duty of inquiring into the merits of the charge.” Swift, 103 Ga. at 196. The suing out of a warrant, if done maliciously and without probable cause, wrongfully institutes a prosecution, but, without more, it is not sufficient to sustain a cause of action for a prosecution which was then maliciously “carried on.” Id. at 196-197; Walker v. Bishop, 169 Ga. App. 236, 238 (312 SE2d 349) (1983).

Even if the warrant issued, and the party was arrested, this, without more, would not be sufficient cause for such an action. The party aggrieved would have a right of action for malicious [or false] arrest, as is provided by the Civil Code in another section.

Swift, 103 Ga. at 197; Walker, 169 Ga. App. at 238. When Standard appeared before the magistrate court, the court determined only that there was probable cause to institute a prosecution, and issued the warrant pursuant to which Standard was immediately arrested on the charge of theft by shoplifting. Neither the proceeding in the magistrate court to establish probable cause to issue the arrest warrant, nor issuance of the warrant by the magistrate court, was evidence of a prosecution “carried on” by “an inquiry before a committing court... with the power and duty of inquiring into the merits of the charge.” Swift, 103 Ga. at 196-197; Garner v. Heilig-Meyers Furniture Co., 240 Ga. App. 780, 781-782 (525 SE2d 145) (1999).

In response to the motion for summary judgment, Standard provided undisputed evidence showing that, after the magistrate court found probable cause to issue the arrest warrant and Standard was arrested, the warrant was dismissed by the district attorney, and Standard never again appeared before any court on the charge. In fact, Standard’s complaint for malicious prosecution alleges only that she was arrested based on Falstad’s application for an arrest warrant and his testimony before the magistrate court, and that, after Standard was arrested, the district attorney dismissed the warrant. The allegations of the complaint and the undisputed facts show that Standard failed as a matter of law to establish any claim for malicious prosecution, and that her alternative cause of action was for false arrest. See OCGA § 51-7-1. Accordingly, Wal-Mart was entitled to summary judgment on the malicious prosecution claim. OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991) (defendant entitled to summary judgment by showing no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case). The trial court granted summary judgment in favor of Wal-Mart on the malicious prosecution claim for a different reason — finding as a matter of law that probable cause existed to issue the arrest warrant to institute the prosecution. We need not address that finding, and affirm the trial court’s grant of summary judgment on this claim under the right for any reason rule.

The trial court also correctly granted summary judgment in favor of Wal-Mart on Standard’s claim for intentional infliction of emotional distress. Standard asserts that the same conduct she cited in support of her malicious prosecution claim also supported her claim for intentional infliction of emotional distress. On a claim for intentional infliction of emotional distress, the plaintiff must produce evidence to establish all of the following elements:

(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the plaintiff’s emotional distress; and (4) the emotional distress must be severe. MARTA v. Mosley, 280 Ga. App. 486, 490-491 (634 SE2d 466) (2006).

Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 584 (657 SE2d 644) (2008). To qualify as sufficiently “extreme and outrageous” the conduct at issue “must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 488 (546 SE2d 861) (2001) (citation and punctuation omitted).

As set forth above, undisputed evidence in the record showed the following: Wal-Mart’s employee, Falstad, observed a woman on the store’s video system engaging in conduct that provided probable cause to believe that the woman committed the offense of shoplifting in the store. After obtaining the license number from the car the woman drove away from the store, Falstad immediately contacted police, showed the police officer the video, and gave the officer the license number. The officer conducted a search on the license number, which showed that the number belonged to a Mazda 3 automobile registered to Standard. The officer obtained Standard’s driver’s license information, compared Standard’s license photograph to the woman the officer saw in the store video, and concluded that Standard’s photograph appeared similar to the woman in the video. Based on information derived from his own observations and the police investigation, Falstad applied to the magistrate court for a warrant to have Standard arrested for shoplifting. At the magistrate court hearing on the warrant application, Falstad described to the court the actions taken by the woman on the store video — actions sufficient to establish probable cause that the woman in the video committed the offense of shoplifting. Falstad told the court that he obtained the license number of the car the woman drove from the store; that he reported the incident to the police; and that the police investigation revealed that the car (a Mazda 3) belonged to Standard. Standard told the court she owned a Mazda 3 automobile, but could not remember the license number, and testified that she had never been to the Wal-Mart store at issue and was not the woman in the store video. Falstad, who had the opportunity to see Standard face-to-face at the hearing, testified to his belief that Standard was the woman in the video, and that Standard “looks very similar” to the woman he saw in the video. After hearing testimony from Falstad and Standard, the magistrate court found probable cause to issue a warrant to have Standard arrested on the shoplifting charge. Standard was arrested and spent about 16 hours in jail before she was released on bond. About five weeks after Standard was arrested, the district attorney dismissed the warrant stating that there was insufficient evidence to secure a conviction beyond a reasonable doubt. The district attorney’s investigator said that the warrant was dismissed subsequent to a conversation he had with Falstad about three weeks after the arrest in which Falstad told him that Standard was not the woman in the store video.

On the above facts, there was a rational basis for Falstad’s identification testimony in magistrate court that Standard looked similar to the woman in the store video, and that he believed she was the woman in the video seen committing the offense of shoplifting. The police officer’s independent statement that Standard (based on her driver’s license photograph) looked similar to the woman seen in the video supports this conclusion. The fact that Falstad subsequently told the district attorney’s investigator that Standard was not the woman in the video did not change the objective facts supporting his earlier identification testimony, and did not support a reasonable inference that Falstad deliberately misidentified Standard to obtain the arrest warrant without any factual basis. Rather, it reasonably suggests that Falstad reconsidered the same objective facts and subsequently changed his mind about the identification. Whether the conduct at issue was sufficiently extreme and outrageous was a question of law for the court. Amstead v. McFarland, 287 Ga. App. 135, 140 (650 SE2d 737) (2007); McClung Surveying v. Worl, 247 Ga. App. 322, 326 (541 SE2d 703) (2000). On the present facts, we find that the trial court correctly concluded that the conduct at issue was not sufficiently extreme and outrageous, and correctly granted summary judgment to Wal-Mart on the claim for intentional infliction of emotional distress. OCGA § 9-11-56; Lau’s Corp., supra.

Decided November 12, 2015.

The Barnes Law Group, Roy E. Barnes, W. Matthew Wilson, Charles B. Tanksley, for appellant.

McLain & Merritt, Robert B. Hill, Ashley A. Bagiatis, Nicholas E. Deeb, for appellees.

Because the trial court correctly granted summary judgment to Wal-Mart on Standard’s underlying tort claims, the court also correctly concluded that Wal-Mart was entitled to summary judgment on Standard’s claims for punitive damages and attorney fees. Johnson v. Johnson, 323 Ga. App. 836, 842 (747 SE2d 518) (2013).

Judgment affirmed.

Branch, J., concurs. Miller, J., concurs in judgment only.

       Standard’s suit also alleged claims for false and malicious imprisonment and for negligence, but she withdrew those claims in her response to Wal-Mart’s motion for summary judgment.

       Standard’s complaint does not explicitly assert a cause of action for false arrest, and, in response to Wal-Mart’s motion for summary judgment, Standard affirmatively stated that “Plaintiff has not asserted a claim of false arrest.”