text:
    A11A0696.
    LEGACY COMMUNITIES GROUP, INC. et al. v. BRANCH BANKING & TRUST COMPANY.
    (729 SE2d 612)
   Ellington, Chief Judge.

This case concerns, among other claims, Branch Banking & Trust Company’s claim that the 2008 guarantors are liable under guaranties they executed in 2008, in connection with several loans the bank was contemporaneously making to Tampa Investment Group, Inc. (“Tampa Investment”), for three loans the bank made in 2005 to Legacy Investment Group, LLC (“Legacy Investment”). See Legacy Communities Group v. Branch Banking & Trust Co., 310 Ga. App. 466 (713 SE2d 670) (2011) (“Legacy I”). In ruling on the parties’ cross-motions for partial summary judgment, the trial court determined, inter alia, that the 2008 guaranties were effective under the Statute of Frauds, OCGA § 13-5-30 (2), to make the 2008 guarantors liable for the 2005 loans to Legacy Investment. See Legacy I, 310 Ga. App. at 468. The trial court granted the bank’s motion for partial summary judgment and denied the 2008 guarantors’ motion on this issue, and the 2008 guarantors appealed to this Court. See id. Contrary to the trial court’s ruling, we concluded in Division 2 of our opinion in Legacy I that the 2008 guaranties did not identify the pre-2008 notes with the specificity required for a promise to answer for another’s debt to be binding on the guarantor under the Statute of Frauds. Id. at 474 (2). We concluded, however, that the 2008 guarantors were estopped from asserting a Statute of Frauds defense to the enforcement of the guaranties by the bank’s performance of its obligations under the guaranties. Id. at 474-475 (2). Accordingly, we affirmed the trial court’s order in favor of the bank. Id. at 476 (2). Our holding regarding estoppel made it unnecessary to reach the 2008 guarantors’ alternative contention that the 2008 guaranties did not sufficiently identify Legacy Investment as the principal debtor on any pre-2008 notes and that, therefore, the guaranties were unenforceable under the Statute of Frauds as to Notes 25, 26, and 23/28. Id. at 476 (2).

The Supreme Court of Georgia granted the 2008 guarantors’ petition for writ of certiorari, which was docketed as Case No. S11G1729. The Supreme Court determined that we erred in holding that “the 2008 guaranties did not sufficiently identify any pre-2008 notes” to be enforceable against the guarantors under the Statute of Frauds. Tampa Investment Group v. Branch Banking & Trust Co., 290 Ga. 724, 728 (2) (723 SE2d 674) (2012) (“Tampa”). Further, the Supreme Court determined that we erred in holding that the 2008 guarantors were estopped from asserting a Statute of Frauds defense to the bank’s claims against them on pre-2008 notes. Id. The Supreme Court therefore reversed our judgment in Division 2 of Legacy I, and remanded the case, directing this Court to consider the issue of whether the 2008 guaranties sufficiently identify Legacy Investment as the debtor on Notes 25, 26, and 23/28. Tampa, 290 Ga. at 731 (2). Accordingly, we vacate Division 2 of our previous opinion, Legacy I, 310 Ga. App. at 471-476 (2), and take up that issue now.

As the Supreme Court explained, under the Statute of Frauds and cases applying the Statute, a promise to answer for another’s debt is only enforceable against the promisor if it identifies the debt, the principal debtor, the promisor, and the promisee. Tampa, 290 Ga. at 728 (2). It is well settled that a guaranty must identify the principal debtor by name. See Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982) (Because “a contract of guaranty . .. [is] required to [be] entirely in writing under the Statute of Frauds [,]” a contract of guaranty that omits the name of the principal debtor “has no validity[,]” and parol evidence is not admissible to prove the identity of the principal debtor, even where the guaranty is manifestly intended to indemnify the promisee from loss and is otherwise complete and unambiguous and where the putative guarantor admits executing the document.) (citations omitted; emphasis supplied).

Where [a] guaranty omits the name of the principal debtor, of the promisee, or of the promisor, the guaranty is unenforceable as a matter of law. Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the [S]tatute of [F]rauds. Moreover, a court must strictly construe an alleged guaranty contract in favor of the guarantor. The guarantor’s liability may not be extended by implication or interpretation. And parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our [S]tatute of [FJrauds. Thus, this Court is not authorized to determine the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence.

(Citations, punctuation and footnotes omitted.) Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 572-573 (694 SE2d 161) (2010).

In this case, the 2008 guaranties entirely failed to refer to Legacy Investment by name. On the issue of those debts of another, in addition to notes that were being contemporaneously executed by Tampa Investment, for which the 2008 guarantors agreed to answer under the 2008 guaranties, the 2008 guaranties provided, in pertinent part, as follows:

[The] Bank has previously made numerous loans (collectively the “Prior Loan”) to various borrower entities owned (directly or indirectly) or controlled by [the 2008 guarantors]. Such borrower entities (individually “Borrower” and collectively “Borrowers”) include those entities whose names are set forth on Exhibit “A” attached hereto and made a part hereof, but shall also include other entities whose names are not on Exhibit “A”, and for purposes of this Guaranty Agreement, which are owned or controlled (directly or indirectly by [the 2008 guarantors]) (“controlled” as used herein meaning direct or indirect ownership of more than 50% of the ownership interests of such entity) and which, as of the date hereof, have outstanding indebtedness or other obligations or liability under the Prior Loan owed to [the] Bank.

Although Tampa Investment was listed in the attached Exhibit A, Legacy Investment was not. It is undisputed that, when the 2008 guarantors executed the guaranties, one of them, Legacy Communities, owned or controlled Legacy Investment, directly or indirectly, and that, at that time, Legacy Investment had outstanding indebtedness or other obligations or liability under notes owed to the bank, that is, Notes 25, 26, and 23/28. See Legacy I, 310 Ga. App. at 475 (2), n. 21. One can infer that Legacy Investment was one of the unnamed borrower entities so described, however, only by considering evidence extrinsic to the 2008 guaranties, such as the deposition testimony of Stephen R. Been and Stephen F. Been, the two individuals who were Legacy Communities’ officers and only shareholders. Such parol evidence is not admissible to supply the name of the principal debtor under Builder’s Supply Corp. v. Taylor and its progeny cited above. Because the 2008 guaranties omitted the name of Legacy Investment, the guaranties are unenforceable against the guarantors for any preexisting debt of Legacy Investment because they fail to satisfy the Statute of Frauds to that extent.

We recognize that this ruling may fail to effectuate the parties’ actual intent in executing the 2008 guaranties and may, therefore, represent a windfall to the 2008 guarantors. We are bound, however, by the longstanding bright-line rule that a guaranty that omits the name of the principal debtor is unenforceable as a matter of law and by the Supreme Court’s direction that, “if [the] Court [of Appeals] determines that the 2008 guaranties do not fully satisfy the Statute of Frauds with respect to the 2005 notes executed by [Legacy Investment],” which we have done, we “should not again apply the ‘part performance’ exception to the Statute of Frauds.” Tampa, 290 Ga. at 729 (2). For the reasons explained herein, the 2008 guarantors are entitled to judgment as a matter of law with regard to the bank’s claims against them for the satisfaction of Notes 25, 26, and 23/28, and the trial court’s order granting the bank’s motion for partial summary judgment on this issue must be reversed in this respect.

Decided June 29, 2012.

Chilivis, Cochran, Larkins &Bever, JohnK. Larkins, Jr., Fellows

LaBriola, Steven M. Kushner, Eugenia W. Iredale, for appellants.

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

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

Greenberg Traurig, Jennifer B. Moore, Mark G. Trigg, Lee B. Hart, for appellee.

       In this opinion, “2008 guarantors” refers to Legacy Communities Group, Inc. (“Legacy Communities”), SRB Investment Services, LLLP, and SFB Investment, LR See Legacy Communities Group v. Branch Banking & Trust Co., 310 Ga. App. 466 (713 SE2d 670) (2011).

       The specific loans were designated Notes 25, 26, and 23/28. See id. at 467, nn. 1, 3, 5, 7.

       We note that the Supreme Court of Georgia also granted the 2008 guarantors’ (and other litigants’) petition for a writ of certiorari, which was docketed in the Supreme Court as Case No. S11G1728 and consolidated with Case No. S11G1729, to consider an issue that we addressed in Division 1 of our opinion. Upon consideration, the Supreme Court affirmed that portion of our decision. Tampa, 290 Ga. at 725-728 (1).

       See also McDonald v. Ferguson Enterprises, 274 Ga. App. 526, 526-527 (1) (618 SE2d 45) (2005) (accord); Fontaine v. Gordon Contractors &c., 255 Ga. App. 839, 839-840 (567 SE2d 324) (2002) (accord); Roden Electrical Supply v. Faulkner, 240 Ga. App. 556, 556-557 (1) (524 SE2d 247) (1999) (accord); Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 461-462 (489 SE2d 568) (1997) (accord); Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992) (accord); Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259, 259-260 (411 SE2d 87) (1991) (accord).

       As the Supreme Court explained, the requirement under the Statute of Frauds that a guaranty must “identify the debt which is the subject of the promise and indicate knowledge of both the amount promised to be paid and the time the debt becomes due” does not mean that an “exact promissory note or instrument [must be] identified in the guaranty itself [.]” (Citations and punctuation omitted.) Tampa, 290 Ga. at 728 (2). As the Supreme Court explained, a guaranty that identifies the debt by such language as “ ‘present and future debt,’ ‘all obligations under any notes however and whenever incurred or evidenced, now existing or hereafter contracted or acquired,’ ‘any and all invoices for services rendered,’. . . ‘any and all materials billed,’ [or] ‘past and/or future extension of credit’ to the principal debtor” is enforceable. Id. at 728-729 (2). S ee Schroederv. Hunter Douglas, Inc., 172 Ga.App. 897, 898-899 (2) (324 SE2d 746) (1984) (“[T]n order to satisfy the Statute of Frauds, the writing relied upon as a guaranty must, either in itself or in connection with other writings, identify the debt which is the subject of the promise, indicate knowledge of both the amount promised to be paid and the time the debt becomes due, and show who is the promisee as well as the promisor.... It is not necessary that the guaranty agreement contain in itself all of the requirements which the Statute of Frauds embraces. [Rather, if] the [guaranty] . .. refer[s] to any other writing which can be identified completely by this reference, without'the aid of parol evidence, then the two or more writings may constitute a compliance with the statute. One can certainly execute a valid contract of guaranty whereby he guarantees the payment of future debts incurred by another party. The exact amount and the full terms of the indebtedness on an open account are not determinable at the time of the execution of such a guaranty agreement, and are often necessarily established by subsequent documentation.”) (citations and punctuation omitted); see also Duke v. KHD Deutz &c. Corp., 221 Ga.App. 452, 452-453 (471 SE2d 537) (1996) (Where a guaranty agreement was executed at the same time and in the course of the same transaction as a loan and security agreement and a stock pledge agreement, the three instruments could be read and construed together under the contemporaneous writing rule, OCGA § 24-6-3 (a), to discern the identity of the principal debtor.).

       See Dabbs v. Key Equip. Finance, 303 Ga. App. at 573-576 (A guaranty for payments due on an equipment lease was unenforceable against the guarantor where the guaranty, which was not attached to any lease at the time the guarantor executed it, referred only to the “Agreement” as the debt, which “Agreement” was not defined, described, or identified; referred to the principal debtor only as the “customer,” with no further clue as to who that “customer” might be; and referred to the promisee only as “we” or “us,” with no identification of that entity or entities.); McDonald v. Ferguson Enterprises, 274 Ga. App. at 526-527 (1), nn. 2, 3 (A guaranty was unenforceable against the guarantor where a credit application referenced the principal debtor as the “Applicant,” but no entity was identified as the “Applicant.” The name of the entity alleged to be the principal debtor appeared in the document only in the section of the credit application entitled “Billing/Shipping Information.”); Roden Electrical Supply v. Faulkner, 240 Ga. App. at 556-557 (1) (A guaranty was unenforceable against the guarantor where a credit application referenced the principal debtor as the “above business,” but no entity was identified in the credit application as “the business.” The entity alleged to be the principal debtor appeared in the document only as the ‘billable party.”); Sysco Food Svcs. v. Coleman, 227 Ga. App. at 460-463 (A guaranty was unenforceable against the guarantor where an account agreement identified the alleged principal debtor as the “purchaser,” and a form guaranty, which appeared in the same document with the account agreement, contained a space for “_Company,” ostensibly the principal debtor, but the line was left blank, and a space for the name of the person individually guaranteeing the indebtedness was also left blank.). Cf. John Deere Co. v. Haralson, 278 Ga. 192, 194 (599 SE2d 164) (2004) (A guaranty was enforceable against the guarantor where the document identified the guarantor as the “undersigned,” and the guarantor’s name appeared on the document in the form of his signature, over which was the designation “Guarantor(s).”); Capital Color Printing v. Ahern, 291 Ga. App. 101, 104-107 (1) (661 SE2d 578) (2008) (Á guaranty was enforceable against two individuals based on the following: (1) a credit application showed that the promisee was extending credit to the “customer”; (2) a box captioned “CUSTOMER” contained the names of the individuals beside the designation ‘Your Name” and contained the name Quality Printing 4 Less beside the designation “Company Name”; (3) Quality Printing’s business address, telephone and fax numbers, and Federal Employer Identification Number were also listed in the “customer” box; (4) immediately below the box were several other questions relating to the “customer,” and the responses indicated that Quality Printing was a partnership, owned by the two individuals; (5) at the bottom of the credit application was a statement that the “undersigned guarantee [d] payment of any and all invoices for services rendered to customer”; (6) the two individuals signed b elow the statement; and, therefore, (7) the only reasonable conclusion was that Quality Printing was the principal debtor and the two individuals were the guarantors, as it would be nonsensical for the individuals to be “guaranteeing” their own debts.).

       As we observed in our previous opinion,
      the express terms of the 2008 guaranties... unequivocally establish that, when the 2008 guarantors executed those documents, several corporate entities which the guarantors owned or controlled, including Tampa Investment (which was specifically listed in Exhibit Ato the guaranties), owed the bank money under prior loans; that the 2008 guarantors executed the 2008 guaranties with the express purpose of inducing the bank to extend additional credit to Tampa Investment; and that the 2008 guarantors agreed to a condition imposed by the bank for such additional credit, specifically, that the 2008 guarantors also guarantee the pre-existing debts of Tampa Investment and other corporate entities the 2008 guarantors owned or controlled. Further, it is undisputed that the bank performed its obligations under the 2008 guaranties when it extended Tampa Investment credit pursuant to the 2008 notes. Thus, the bank .. . performed as agreed, and the 2008 guarantors ... enjoyed the benefit of their bargainf.]
      (Footnote omitted.) Legacy I, 310 Ga. App. at 475 (2), reVd, Tampa, 290 Ga. at 731 (2). It is not the purpose of the Statute of Frauds to allow a promisor to avoid willingly-undertaken contractual obligations. As the Supreme Court observed over a century ago, the Statute of Frauds’
      primary object is to prevent mistakes, frauds and perjuries, by substituting written for oral evidence in the most important classes of contracts, [and, therefore,] the courts of equity have established the principle, which they apply under various circumstances, that [the Statute] shall not be used as an instrument for the accomplishment of fraudulent purposes; designed to prevent fraud, it shall not be permitted to work fraud. This principle lies at the basis of the doctrine concerning part performance, but is also enforced whenever it is necessary to secure equitable results.
      (Citation and punctuation omitted.) Kirkland v. Downing, 106 Ga. 530, 536 (32 SE 632) (1899). Nonetheless, because “the extension of credit to the debtor does not constitute such part performance as to take a promise to answer for the debt of another out of the Statute of Frauds,” the 2008 Guarantors were not estopped by the bank’s part performance from asserting a Statute of Frauds defense to the bank’s claims against them on the pre-2008 notes. (Citation omitted.) Tampa, 290 Ga. at 730 (2).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A0092.
    BERNI v. COUSINS PROPERTIES, INC. et al.
    (729 SE2d 617)
   Dillard, Judge.

In this premises-liability action, Barbara Berni sued Cousins Properties, Inc. and CP Venture Three, LLC (collectively “defendants”), alleging that the defendants breached a duty they owed her as invitee when she tripped and was injured after stepping onto a small grassy median between the sidewalk and the parking lot of a shopping center owned and managed by defendants. Berni now appeals a grant of summary judgment in favor of defendants, arguing that the trial court erred in finding that there existed no genuine issue of material fact as to whether defendants had superior knowledge of the alleged hazard posed by the grassy median and as to whether she failed to exercise care for her own safety. For the reasons set forth infra, we affirm the grant of summary judgment in favor of defendants.

Viewed in the light most favorable to Berni (i.e., the nonmoving party), the record shows that in December 2004, Berni was the manager of a home-furnishings store located in an open-air shopping center known as The Avenue at Peachtree City. At that time, The Avenue at Peachtree City — as well as several other similar shopping centers in the metro-Atlanta area — was owned by CP Venture Three and was managed by Cousins Properties. On December 17, 2004, a customer, who had recently purchased an armoire from Berni’s store, sought Berni’s assistance with loading her purchase into her vehicle. As was the common practice when a customer bought a large item, the customer parked her vehicle in a parking space located directly behind the store and rang the back door’s bell for assistance. Berni answered the door, examined the customer’s receipt, and determined that the armoire was in a storage room immediately next door, which the store used for overstock.

After locating the armoire, which was in a box approximately 20 inches wide and 45 inches tall (and which weighed nearly 65 pounds), Berni slid it across the storage room’s floor until she reached the threshold of the back door. At that point, Berni picked up the box, walked out the back door of the storage room onto the sidewalk at the back of the building, and proceeded toward the customer’s vehicle, which was parked in a space directly adjacent to the sidewalk, only a few feet away. Rather than remaining on the sidewalk until she reached the asphalt parking lot, Berni took the more direct route to the customer’s vehicle, which entailed traversing a small, triangular, grassy median separating part of the sidewalk from the lot. And as Berni stepped onto the grassy median with her left foot, she tripped and fell, seriously injuring her left foot as a result.

Thereafter, Berni sued CP Venture Three and Cousins Properties to recover damages for the injuries she suffered as a result of her trip and fall on the grassy median. Defendants filed an answer, and discovery ensued. In her deposition testimony, Berni claimed that her trip was caused by the fact that the grassy median dropped off below the level of the adjacent sidewalk and that this drop-off was obscured by the height of the grass in the median. But Berni acknowledged that she was previously aware of the grassy median, having assisted with unloading deliveries and with customers loading their vehicles at the back of the store on numerous occasions. Berni further acknowledged that although it was possible to reach the trunk of the customer’s vehicle without traversing the grassy median, she purposefully stepped onto the median at the time of the accident because doing so was the shortest route. Additionally, Berni testified that the box, which she was carrying at the time of the accident, partially impeded her view of the ground in front of her.

The regional director of Cousins Properties, who oversees management of the shopping center, was deposed and testified that the property is inspected by management at least four times each month and that he was not aware of any other person filing a claim against the defendants based on a trip or fall caused by the sidewalk or curbs on the property. In addition, a supervisor of the company hired by defendants to provide landscaping services for the shopping center testified that all of the grass on the property, including the grassy median where Berni tripped, was mowed, edged, weeded, and inspected for debris on a weekly basis.

After discovery concluded, defendants filed a motion for summary judgment, arguing that they could not be held liable for Berni’s injury because they did not have superior knowledge that the grassy median posed a hazard and because Berni failed to exercise care for her own safety when she chose to walk across the grassy median instead of remaining on the sidewalk. And following a hearing on the matter, the trial court granted defendants’ motion for summary judgment. This appeal follows.

In several enumerations of error, Berni contends that the trial court erred in finding that there is no genuine issue of material fact as to whether defendants had superior knowledge of the alleged hazard posed by the grassy median and as to whether she failed to exercise care for her own safety by choosing to walk across the grassy median instead of remaining on the sidewalk. We disagree.

The standards for summary adjudication are well settled. 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.” A summary judgment ruling enjoys “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.” Indeed, in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence, in the light most favorable to the nonmovant.

With regard to premises-liability cases, in Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe, which “includes inspecting the premises to discover possible dangerous conditions of which the [proprietor] does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” Nevertheless, proof that an invitee tripped or fell, without more, “does not establish liability on the part of the property owner or occupier.” Rather, in order for a plaintiff to recover damages for injuries sustained in a slip-and-fall action, an invitee must prove “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” A plaintiff’s evidentiary burden of proof concerning the second prong of this test is not, however, “shouldered until the defendant [first] establishes negligence on the part of the plaintiff.” We now consider Berni’s claims of error with these guiding principles in mind.

In this matter, there is no evidence that the defendants had actual knowledge that the grassy median where Berni fell posed a hazard. Thus, to avoid summary judgment, Berni had to demonstrate that the defendants had constructive knowledge of the allegedly hazardous condition. Such constructive knowledge can be shown by “evidence that a proprietor’s failure to discover the hazard resulted from its failure to exercise reasonable care in inspecting the premises.” In fact, the evidence must show that “the hazardous condition existed on the premises for a sufficient period of time such that the defendants should have discovered and removed the hazard.” And as for the scope of defendants’ inspections, “the law requires only the exercise of ordinary care, not extraordinary care.”

And here, the regional director overseeing the day-to-day management of the shopping-center property testified that he was not aware of any other claims of persons tripping and falling while traversing the grassy median where Berni fell and further testified that he or another member of his staff inspects the property at least four times each month. In addition, the supervisor of the landscaping company hired by defendants testified that the grassy median where Berni tripped was mowed, edged, weeded, and inspected for debris on a weekly basis and that none of his employees ever reported the median to be a hazard. Thus, the defendants exercised ordinary care “by conducting inspections of the premises which were reasonable under the circumstances.” Accordingly, Berni failed to present evidence that defendants had constructive knowledge that the grassy median posed a hazard.

Furthermore, it is incumbent upon the plaintiff “to use the degree of care necessary under the circumstances to avoid injury to herself.” And the reasonable selection of a route of travel “is a part of the invitee’s duty to exercise ordinary care for her own safety.” Indeed, as we have previously emphasized:

While an invitee need not necessarily choose the safest course across the owner/occupier’s property, where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience, the degree of caution required by the invitee’s duty to exercise ordinary care for her own safety is heightened by any increased risk resulting from that choice. Under such conditions, the invitee assumes the risk of those hazards existent in the selected route where the conditions do not constitute a hazard when the traversed property is used for its intended purpose, unless the hazard is common to both areas or the owner has notice that the unauthorized route is being regularly used improperly.

In the case sub judice, Berni testified that she was well aware of the grassy median but that she nevertheless stepped onto it, not for any safety reasons, but because it was the shortest route to the customer’s vehicle. She also admitted that she stepped onto the median despite the fact that her view of what was directly under her feet was impeded by the large, heavy box that she was carrying. And even if the median was hazardous, “the condition was open and obvious, and thus, in the exercise of ordinary care, she could have avoided it.” Indeed, there is no duty to “warn of the obvious.” Given her purposeful decision to leave the sidewalk and step onto the grassy median despite the fact that she was also aware that her view was impeded, Berni failed to exercise ordinary care for her own safety.

Decided June 29, 2012.

David L. Hudgins, for appellant.

Gray, Rust, St. Arnand, Moffett & Brieske, Matthew G. Moffett, Jeffrey M. Wasick, for appellees.

Accordingly, the trial court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

        See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003) (“On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.”).

       OCGA § 9-11-56 (c).

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

        McCaskill, 263 Ga. App. at 890.

        See OCGA § 51-3-1. As an employee of one of defendants’ tenants, Berni was an invitee on the property, and defendants may be liable to invitees for injuries caused by a failure to exercise ordinary care in keeping the premises safe. See Gibson v. Halpern Enters., 288 Ga. App. 790, 790-91 (655 SE2d 624) (2007).

        Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

        Witt v. Ben Carter Props., LLC, 303 Ga. App. 107, 109 (692 SE2d 749) (2010).

        Robinson, 268 Ga. at 748-49 (2) (b).

        Id.

        Witt, 303 Ga. App. at 110.

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See id. at 110-12 (holding that shopping center owner did not have constructive knowledge of holes in grassy median that separated store parking lots, given that landscaping service inspected the median regularly and there were no reports of any prior falls); James v. Vineville Christian Towers, Inc., 256 Ga. App. 72, 74-75 (567 SE2d 712) (2002) (holding that apartment complex owner did not have constructive knowledge of hole in grassy common area of the complex based on the fact that maintenance supervisor inspected the grounds daily, landscaping service maintained the grounds twice per month, and no prior accidents were reported); Armenise v. Adventist Health System/Sunbelt, Inc., 219 Ga. App. 591, 593-94 (466 SE2d 58) (1995) (holding that hospital did not have constructive knowledge of hole in grassy area between buildings because it conducted weekly inspections, cut the grass in the area, and no prior incidents indicated a hazard).

        Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994) (punctuation omitted).

        Id.

        Id. (citation and punctuation omitted).

        Pirkle v. Robson Crossing, LLC, 272 Ga. App. 259, 262 (612 SE2d 83) (2005) (punctuation omitted) (holding that the height of a curb was open and obvious and, therefore, any hazard presented by it could have been avoided by plaintiff in the exercise of reasonable care).

        Id. (punctuation omitted).

        See Williams v. Park Walk Apts., L.P., 253 Ga. App. 429, 431 (559 SE2d 169) (2002) (holding that plaintiff failed to exercise ordinary care for her own safety when she cut across lawn in the dark to reach apartment complex parking lot instead of using paved walkway, and tripped on a sprinkler); Gaydos, 211 Ga. App. at 813-14 (holding that plaintiff failed to exercise ordinary care for her own safety when she left walkway, walked across apartment complex’s lawn to reach the parking lot, and tripped on a concrete curb, which was not visible from the direction that plaintiff approached).


author: Adams, Judge.

text:
    A12A0148.
    BARRETT PROPERTIES, LLC et al. v. ROBERTS CAPITOL, INC. et al.
    (729 SE2d 621)
   Adams, Judge.

Barrett Properties, LLC (“Barrett”) and CEA, LLC, formerly known as Capitol USA, LLC and ESHCO, LLC (“CEA”) sued, among others, Roberts Capitol, Inc., Q. E. P. Co., Inc., and Roberts Consolidated Industries, Inc. (the “Roberts Defendants”), for damages arising out of the alleged chemical contamination of an adhesives manufacturing facility in Whitfield County (the “Site”). The trial court granted the Roberts Defendants’ motion for summary judgment on all claims. On appeal, Barrett and CEA argue that the trial court erred in awarding summary judgment to the Roberts Defendants on their trespass, nuisance, negligence and strict liability claims (the “common law tort claims”), as well as on their statutory contribution claim. We agree with the trial court that Barrett’s and CEA’s common law tort claims fail for lack of evidence that the Roberts Defendants proximately caused them any harm and, as to the statutory contribution claim, that Barrett and CEA did not show that they had taken “corrective action” for purposes of seeking contribution under OCGA § 12-8-96.1 (e). Accordingly, we 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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. See Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, the evidence shows that Barrett is the current owner of the Site and CEA is a former owner. The Site has been used since 1994 as an adhesives manufacturing facility. In 2004, an environmental assessment showed that a number of volatile organic compounds (VOC) were present in the soil and groundwater. The assessor concluded that this contamination was possibly attributable to a 1995 tanker truck spill. The EPD was notified of a release of trichloroethene and achloroethene to the soil at the Site. CEA, through a consultant, submitted corrective action plans to the EPD in August 2006 (the “2006 CAP”) and June 2009 (the “2009 CAP”).

The Roberts Defendants leased the Site from Barrett in 2005 and continued the adhesives manufacturing operation. In April 2008, an analysis of groundwater samples taken from one of the monitoring wells at the Site showed a sharp increase in concentrations of the VOC toluene, a solvent which, the parties agree, is used in the adhesives manufacturing process. According to the affidavit of geologist Kirk Kessler, a groundwater monitoring well on the Site (“MW-2”) showed an increase in toluene concentrations “from 4 [parts per billion (“ppb”)] during sampling events in June and September of 2004 to a peak of 1090 ppb during a sampling event during April of 2008.” This, Kessler avers, “indicates that a new release of toluene occurred at some point between September of 2007 and April of 2008.” As Barrett and CEA admit, however, “[t]oluene concentrations at MW-2 . . . dropped to 410 ppb in October 2008 and subsequently returned to a non-detect status.”

The evidence also showed that an environmental consultant, Dr. Aaron Williams, visited the Site during the time it was occupied by the Roberts Defendants. He observed some “chem absorb” in the drum storage area, which may have been related to a spill. Williams also testified that “I have no idea what the material spilled was,” and, further, that “I don’t remember toluene being an issue based on the risk reduction standards.”

1. The trial court concluded that the evidence presented in support of the common law tort claims failed to show that the Roberts Defendants proximately caused any harm to Barrett or CEA. “The four elements to any tort action are a duty, a breach of that duty, causation and damages.” (Footnote omitted.) Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18 (525 SE2d 712) (1999).

To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. Amere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Citation and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 121-122 (1) (643 SE2d 253) (2007).

Barrett and CEA argue that April 2008 toluene detection at MW-2 was evidence of a recent spill at the Site, and that the circumstantial evidence, including the Roberts Defendants’ operations on the Site from 2005 onward, pointed to the Roberts Defendants as the source of that spill. The spike in toluene detected in samples taken from a monitoring well in 2008 was short-lived, however, with the 2009 and 2010 samples, as described by geologist Kessler, “too low for the analytical method used to test for its presence to indicate that the target chemical is present in the sample.” As Barrett and CEA acknowledge, toluene was detected at the Site before the Roberts Defendants occupied the property. Thus, even if the spike in toluene readings at MW-2 can be attributed to the Roberts Defendants, Barrett and CEA cannot point to the Roberts Defendants as the source of any toluene contamination that is presently detectable on the Site.

Barrett and CEA suggest that even if there is a lack of evidence that any current contamination at the Site is attributable to the Roberts Defendants, there is nevertheless evidence that the Roberts Defendants caused them harm. Specifically, they argue that there is at least circumstantial evidence that the Roberts Defendants were responsible for the release of toluene reflected by the spike in toluene concentrations detected at MW-2, which, in turn, caused the EPD to require CEA to assess that increase. Barrett and CEA contend that they are entitled to recover the additional environmental assessment costs and attendant professional fees associated with that investigation.

Even if we assume, without deciding, that the circumstantial evidence is sufficient for a trier of fact to conclude that the Roberts Defendants spilled the toluene reflected in the April 2008 measurements at MW-2, Barrett and CEA do not support their argument that they were harmed thereby because the EPD required additional assessments. Rather, Barrett and CEA represented to the trial court at the motion hearing that, “[i]n connection with the [Roberts Defendants’] claim, there was no notification to the EPA or EPD.” In their brief in opposition to the motion for summary judgment below, Barrett and CEA represented that, other than the 1995 spill, there is no evidence of a release of a “reportable quantity’ of hazardous chemicals at the Site. And as the Roberts Defendants point out, Barrett and CEA provide no record citation to support their assertion that the EPD required an investigation of the April 2008 toluene concentrations.

In light of the foregoing, there is a lack of evidence that the Roberts Defendants were the proximate cause of any harm to Barrett and CEA. It follows that the trial court did not err in awarding summary judgment to the Roberts Defendants on Barrett’s and CEA’s common law tort claims.

2. Barrett and CEA also sought contribution from the Roberts Defendants pursuant to OCGA § 12-8-96.1 (e). This provision provides, in pertinent part, that “[d]uring or following the undertaking of any corrective action, any person may seek contribution from any other person who has contributed or is contributing to any release of a hazardous waste, a hazardous constituent, or a hazardous substance.” In Walker County v. Tri-State Crematory, 292 Ga. App. 411, 414 (1) (664 SE2d 788) (2008) we held that, for purposes of this statute, “ ‘corrective action’ taken by a person refers to action taken pursuant to an administrative consent order entered with the EPD Director, or action taken pursuant to an administrative order issued by the EPD Director directing that the necessary action be taken.” Id. at 415 (1).

Decided June 29, 2012.

Coppedge & Evans, Warren N. Coppedge, Joseph B. Evans, for appellants.

Avrett, Ponder & Withrock, Robert M. Withrock, Duncan & Adair, George E. Duncan, Jr., Holland & Knight, Gregory J. Digel, Laurie W. Daniel, Sarah L. Zampell, Smith, Gambrell & Russell, Stephen E. ODay, Andrew M. Thompson, Christopher J. Bowers, for appellees.

The trial court granted summary judgment to the Roberts Defendants on the statutory contribution claim because there was no evidence that a consent or remediation order had been issued by the EPD to either Barrett or CEA, and, therefore, they could not show that they had taken the required “corrective action” for purposes of OCGA § 12-8-96.1 (e). Barrett and CEA acknowledge that this issue is controlled by our decision in Walker County. They contend, however, that Walker County was wrongly decided by this Court and should be overturned and, alternatively, that the trial court interpreted Walker County too broadly. We disagree.

Barrett and CEA argue that Walker County was wrongly decided because the legislature did not limit in any way the private right of contribution it had created via OCGA § 12-8-96.1 (e), and there was no reason for this Court to supply a meaning for “corrective action” so as to provide a disincentive to voluntary remediation efforts by private parties. But in deciding Walker County we have already set forth, at length, the reasons for our construction of OCGA § 12-8-96.1 (e), see 292 Ga. App. at 413-416 (1), and Barrett and CEA provide no good reason for this Court to now overturn this established precedent. Further, the trial court did not misapply Walker County. We have defined “corrective action” for purposes of OCGA § 12-8-96.1 (e), see Walker County, 292 Ga. App. at 415 (1), and the trial court simply applied that definition to the evidence of record. We find no error.

For the foregoing reasons, the trial court’s order must be affirmed.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       Barrett and CEA sued, in addition to the Roberts Defendants, the driver of the tanker truck, Frank Parham, the owner of the truck, Nichols Transport Co., Inc., and the supplier of the spilled product, Giant Resource Recovery-Sumter, Inc. f/k/a Southeastern Chemical & Solvent Co., Inc. (the “Nichols Defendants”). Barrett and CEA appealed from the trial court’s order granting summary judgment to the Nichols Defendants, but they have withdrawn that appeal, leaving the Roberts Defendants as the only appellees.

       Kessler also deposed that, “I don’t have an opinion whether the toluene was a result of Roberts or past operators____It does not appear the magnitude of that release will drive the need for corrective action.”

       Barrett and CEA do cite the 2009 CAP and the deposition of Kirk Kessler as evidence that they notified the EPD of the substantial increase in toluene. The 2009 CAP shows a “single detection of toluene” at MW-2 below the risk reduction requirement. The cited portion of Kessler’s deposition generally refers to toluene soil contamination, which was below the EPD notification requirement, and when asked about the notification requirements applicable to toluene in ground water, Kessler indicated that “I can’t verify it without looking it up.”
      Barrett and CEA also cite a November 2008 Source Investigation Report to show that they contracted for a required environmental assessment and reported the findings to the EPD. The source investigation report references an EPD notice of deficiency regarding “March and June 2008 sampling events.” The report does not, however, discuss toluene in ground water and focuses on numerous other VOCs present at the Site.

       The Roberts Defendants’ request for frivolous appeal sanctions is denied.


author: Miller, Judge.

text:
    A12A0174.
    BRYSON v. THE STATE.
    (729 SE2d 631)
   Miller, Judge.

Following a jury trial, Julius Bryson was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)) and two counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b)). Bryson filed a motion for new trial, which the trial court denied. Bryson appeals, contending that (1) the evidence was insufficient to sustain his convictions. Bryson further contends that the trial court erred (2) in giving the “level of certainty” jury charge; (3) in admitting evidence that he was speeding and had no driver’s license; (4) in failing to direct a verdict or give a lesser included jury charge on robbery by intimidation as to the second count of armed robbery; (5) in failing to direct a verdict of acquittal as to the second count of possession of a firearm; (6) in admitting witness opinion testimony identifying him in a videotape; (7) in allowing the prosecutor to engage in an impermissibly suggestive in-court identification procedure; and (8) in allowing the prosecutor to engage in improper burden-shifting questioning at trial. In addition, Bryson argues that (9) his trial counsel provided ineffective assistance. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. As an appellate court, we do not weigh the evidence, judge the credibility of witnesses [,] or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

(Citation, punctuation and footnotes omitted.) Brinson v. State, 245 Ga. App. 411, 412-413 (1) (537 SE2d 795) (2000).

So viewed, the evidence showed that on the afternoon of April 12, 2003, a custodian was working at a rest area on Interstate 75 in Turner County when she observed a white car occupied by three black males back into a parking space at the rest area. One of the males was wearing a black bandana on his head; another wore a hood. The custodian testified that she was able to see the males’ faces at that time.

On that same afternoon, the first victim stopped at the rest area and went into the men’s restroom. Upon entering the restroom, the victim observed two black males standing at the sink. While using the urinal, the victim was approached from behind by one of the males, who demanded his wallet. The victim attempted to turn away, and was approached by the second male, who pulled out a gun and pointed it at the victim’s chest. The victim saw the gun and heard the distinctive “click” sound of a bullet being engaged into the gun’s chamber. The victim removed his wallet from his back pocket and handed it to the perpetrators. Upon discovering that the victim did not have any money in his wallet, the perpetrators shoved the wallet into the victim’s chest and searched the victim’s pockets.

While the armed robbery of the first victim was still in progress, a second victim entered the restroom. The perpetrators then turned to commit an armed robbery of the second victim. The second victim testified that the perpetrator approached him from behind, demanded his wallet, and said that the accomplice “has a gun and he’ll kill you.” The second victim gave the perpetrators his wallet and cash in the amount of $610.

The first victim rushed out of the restroom and told the custodian to call 911 to report the armed robbery incidents. The second victim, his wife, and the custodian observed the perpetrators flee from the rest area in the white car that had been backed into a parking space at the rest area. The second victim and his wife described that the white car had a cracked windshield. Both victims described that one of the perpetrators was tall and was wearing a hood and a black bandana. The second perpetrator who had brandished the gun was described as being shorter, young, and wearing a white jersey.

Local law enforcement officers received a “[b]e on the lookout” radio report with the descriptions of the white car and the perpetrators. Almost immediately after receiving the radio report, an officer observed the car, matching the descriptions and traveling at a high rate of speed on the interstate. The officer tracked the car’s speed and reported that the car was going 102 miles per hour in a 65 mile per hour zone. The officer pursued the car, activating the blue lights and siren of his patrol car in efforts to initiate a stop. The perpetrators did not stop the car, and instead led the officer on a high speed chase. Several other officers joined the chase, and eventually stopped the car by blowing out its tires. Bryson, who was the driver, then bailed from the car and led the officers on a foot chase. Bryson was captured and taken into police custody.

Bryson’s accomplices were also apprehended at the end of the chase. After the perpetrators were apprehended, the officers searched the car and recovered the second victim’s driver’s license, along with the clothing and bandana that the perpetrators had worn during the commission of the crimes. The officers also recovered the second victim’s wallet from the side of the interstate. In addition, the officers recovered from Bryson’s accomplice over $600, matching the approximate amount taken from the second victim.

During the course of their investigation, the officers compiled a photographic lineup. The custodian identified Bryson as being one of the perpetrators in the lineup. The custodian also made an in-court identification of Bryson at trial.

At the conclusion of the trial, the jury entered a verdict finding Bryson guilty of the charged offenses.

1. Bryson challenges the sufficiency of the evidence to sustain his convictions. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence was sufficient to establish Bryson’s guilt as a party to the crimes.

“A person commits the offense of armed robbery when, with intent to commit theft, he . . . takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). A person commits the offense of possession of a firearm during the commission of a felony when he has on or within arm’s reach of his person a firearm during an armed robbery. See OCGA § 16-11-106 (b). “Where a robbery is committedby the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).” (Citations and punctuation omitted.) Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). Bryson was charged as a party to these offenses pursuant to OCGA § 16-2-20. In accordance with OCGA § 16-2-20 (a), “[a]ny person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citations and punctuation omitted.) Wilcox v. State, 177 Ga. App. 596, 596-597 (340 SE2d 243) (1986).

[Wjhere a party has committed armed robbery and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes under OCGA § 16-2-20 is likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm.

Howze, supra, 201 Ga. App. at 97; see also Wilcox, supra, 177 Ga. App. at 596-597. Moreover,

[w]hile mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citation and punctuation omitted.) Olds v. State, 293 Ga. App. 884, 886 (1) (668 SE2d 485) (2008).

Here, the trial evidence set forth above showed that Bryson either directly committed or was a party to the armed robberies of both victims at the rest area. The custodian who was present at the scene identified Bryson as one of the perpetrators who had participated in the crimes. Bryson’s flight from the rest area, flight from the officers, act of driving the getaway car, and possession of the second victim’s driver’s license and clothing items that witnesses linked to the crimes presented additional circumstances from which the jury could infer his guilt as a party to the crimes. See Woodruff v. State, 233 Ga. 840, 842 (1) (213 SE2d 689) (1975) (ruling that “evidence of flight may be admitted as one of a series of circumstances from which guilt may be inferred”) (citations and punctuation omitted); Olds, supra, 293 Ga. App. at 886-887 (1) (concluding that the evidence was sufficient to convict the defendant as a party to the crime of armed robbery when he was caught driving the getaway vehicle, he matched the witnesses’ description of the perpetrators, and the stolen items were found in his vehicle).

Bryson nevertheless argues that the armed robbery and firearm charges involving the second victim cannot be upheld since the second victim testified that he did not actually see a gun during the robbery. Contrary to Bryson’s arguments, however,

[circumstantial evidence is sufficient to establish the use of a weapon or device appearing to be a weapon, and a conviction for armed robbery may be sustained even though the weapon or article used was neither seen nor accurately described by the victim. The victim need not see the weapon, so long as he or she had a reasonable apprehension that an offensive weapon was used.

(Punctuation and footnotes omitted.) Marlin v. State, 273 Ga. App. 856, 858 (2) (616 SE2d 176) (2005); see also Smith v. State, 274 Ga. App. 568, 570 (1) (a) (618 SE2d 182) (2005) (in determining a defendant’s guilt of armed robbery, “[t]he question is whether the defendant’s acts created a reasonable apprehension on the part of the victim [ ] that an offensive weapon was being used, regardless of whether the victim [ ] actually saw the weapon”) (citation and punctuation omitted).

The evidence shows that the armed robberies committed against the two victims overlapped and occurred nearly simultaneously. When the second victim entered the restroom, he observed the crimes against the first victim taking place. The perpetrators then immediately turned to commit the armed robbery of the second victim. The first victim saw the gun, which Bryson’s accomplice had pointed to his chest. Although the second victim testified that he did not actually see the gun, the perpetrator told him that his accomplice “has a gun and he’ll kill you.” The second victim further testified that when he tried to look at the accomplice, the perpetrator was standing behind him and pushed him to obstruct his view. Based upon the totality of the circumstances and evidence, the jury was entitled to conclude that Bryson’s accomplice possessed a gun during both armed robberies and that the second victim was in reasonable apprehension that there was a gun. See Smith, supra, 274 Ga. App. at 570 (1) (a); Marlin, supra, 273 Ga. App. at 858-859 (2) (affirming armed robbery conviction when the victim admittedly never saw a gun, but the defendant stated that “he had a gun and would shoot”).

We likewise discern no merit in Bryson’s argument that the evidence failed to exclude every other reasonable hypothesis save that of his guilt. See OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). Under this principle,

the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury.

(Citations and punctuation omitted.) McGuire v. State, 204 Ga. App. 151 (2) (418 SE2d 464) (1992). Notwithstanding any evidentiary conflicts, this evidence was sufficient to authorize the jury’s guilty verdict. See id. at 151-152 (2); see also Olds, supra, 293 Ga. App. at 886-887 (1).

2. Citing Brodes v. State, 279 Ga. 435 (614 SE2d 766) (2005), Bryson contends that the trial court erred in giving the “level of certainty’ charge in instructing the jury on assessing the reliability of eyewitness identification.

Notably, however, “the giving of such an instruction does not require reversal when there is other significant evidence corroborating the eyewitness identification.” (Citation and punctuation omitted.) McKenzie v. State, 284 Ga. 342, 345 (3) (a) (667 SE2d 43) (2008). Here, there was other evidence linking Bryson to the crimes, including his flight in the getaway car immediately following the crimes and evidence that the second victim’s driver’s license and clothing items that had been linked to the crimes were found in the getaway car that he had been driving. Moreover, the trial court further instructed the jury as to the State’s burden of proof regarding Bryson’s identity as the perpetrator beyond a reasonable doubt as well as other relevant considerations. Under these circumstances, the error in giving the “level of certainty” charge was harmless. See id. (giving the “level of certainty” charge was harmless since there was other evidence corroborating the identification, including the eyewitnesses’ corroboration of the version of events and the defendant’s flight and attempt to elude the authorities); Willis v. State, 309 Ga. App. 414, 421 (9) (a) (710 SE2d 616) (2011) (giving the “level of certainty” pattern instruction did not constitute reversible error since there was other evidence linking defendant to the robbery, including his possession of the victim’s property).

3. Bryson also argues that the trial court erred in overruling his objections to evidence that he was speeding and had no driver’s license. He contends that this evidence impermissibly placed his character in issue. Again, no reversible error has been shown.

“ The State is entitled to present evidence of the entire res gestae of a crime [,] even if the defendant’s character is incidentally placed in issue.” (Citations and punctuation omitted.) Bertholf v. State, 298 Ga. App. 612, 616 (2) (680 SE2d 652) (2009). “Flight is always a circumstance which may be shown and a jury is authorized to take into account in determining guilt or innocence of an accused, and evidence thereof is not inadmissible because it incidentally puts the defendant’s character in issue.” (Citations omitted.) Hogans v. State, 251 Ga. 242 (1) (304 SE2d 699) (1983). Notably, Bryson himself relies upon the challenged evidence in support of his defense theory that he fled from the officers to avoid traffic tickets, not because he was guilty of the charged offenses. Cf. Hovis v. State, 260 Ga. App. 278, 281-282 (1) (b) (582 SE2d 127) (2003) (failure to object to testimony that defendant did not have a driver’s license was not erroneous since the testimony supported the defense theory and provided an alternative explanation for defendant’s act of leaving the scene of the accident). His claims therefore afford no basis for reversal.

4. Bryson’s remaining claims of trial court error pertain to matters that were not presented or objected to at trial. Specifically, although Bryson contends that the trial court erred in failing to grant directed verdicts on the armed robbery and possession of a firearm charges pertaining to the second victim, the record fails to show that trial counsel requested such relief at trial. Since Bryson made no motion for a directed verdict of acquittal, the trial court did not err by failing to direct a verdict sua sponte. See McCord v. State, 182 Ga. App. 586 (1) (356 SE2d 689) (1987).While Bryson further argues that the trial court erred in failing to give a jury charge on robbery by intimidation as a lesser included offense to armed robbery, he concedes that he did not request such a charge at trial. “Where the record does not disclose a request for a charge upon a particular lesser included offense, the failure to give such a charge sua sponte, is not error.” (Citations omitted.) Young v. State, 191 Ga. App. 651, 654 (4) (382 SE2d 642) (1989); see also Turner v. State, 237 Ga. App. 642, 644 (2) (516 SE2d 343) (1999) (“Atrial court’s failure to charge on a lesser included offense is not error when no written request is made for the charge.”) (citation omitted). Likewise, trial counsel failed to interpose contemporaneous objections to the allegedly improper testimony, evidence, and questioning that Bryson now seeks to challenge in this appeal. “[T]he contemporaneous objection rule . . . has long been a mainstay of Georgia trial practice. Under this rule one must object to evidence when it is actually offered, and the failure to object waives any objection which might have been raised.” (Citations and punctuation omitted.) Capps v. State, 273 Ga. App. 696, 697 (1) (615 SE2d 821) (2005).

Nevertheless, since Bryson argues that his trial counsel was ineffective in failing to raise these issues, we shall review his contentions of error in the context of his ineffective assistance of counsel claims in Division 5 below.

5. Bryson contends that his trial counsel provided ineffective assistance in several respects.

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

(Citations and punctuation omitted.) Willis, supra, 309 Ga. App. at 420 (9); see also Smith v. State, 282 Ga. 388 (651 SE2d 28) (2007). “Generally, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel. And the mere fact that present counsel would have pursued a different strategy does not render trial counsel’s strategy unreasonable.” (Citations omitted.) Smith, supra, 282 Ga. at 392 (7). Bearing these principles in mind, we turn to address Bryson’s claims.

(a) Bryson first claims that trial counsel erred in failing to move for a directed verdict on the armed robbery and firearm charges pertaining to the second victim.

Our standard of review for the denial of a motion for a directed verdict of acquittal is the same as our standard for reviewing the sufficiency of the evidence to support a conviction. Where the evidence establishes the essential elements of the offense charged, a directed verdict of acquittal is unauthorized.

(Citations and punctuation omitted.) Amaechi v. State, 306 Ga. App. 333, 337 (2) (702 SE2d 680) (2010). As explained in Division 1 above, the evidence established Bryson’s guilt as a party to both of the charged offenses committed against the second victim. Since a directed verdict was not authorized, trial counsel did not err in failing to present the meritless motion. See Jones v. State, 310 Ga. App. 705, 709 (b) (713 SE2d 895) (2011) (“The failure to raise a meritless motion for a directed verdict, as a matter of law, is not ineffective assistance of counsel.”) (citation and punctuation omitted).

(b) Nor do we find reversible error in trial counsel’s failure to request a jury charge on robbery by intimidation as a lesser included charge to the armed robbery offense. It is true that robbery by intimidation is a lesser included offense of armed robbery. See OCGA § 16-8-41 (a). Nevertheless, “[wjhere the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offense of robbery by intimidation.” (Punctuation and footnote omit-, ted.) Brinson, supra, 245 Ga. App. at 413 (2). As explained in Division 1 above, the evidence established that a gun was used during both armed robberies. Both armed robberies occurred almost simultaneously, and the first victim confirmed that he saw the gun. In addition, the perpetrator told the second victim that his accomplice had a gun. Since the uncontradicted evidence shows the completed offense of armed robbery, no basis for reversal has been shown. See, e.g., id. at 413-414 (2).

(c) Bryson also argues that his trial counsel erred in failing to object to the officer’s opinion testimony identifying him in a store security videotape.

During the course of their investigation, the officers obtained a store security videotape that allegedly depicted Bryson on the afternoon of the incident. The officer identified Bryson in the videotape, and described his actions as he entered the driver’s side of the white car. We agree that the officer’s testimony identifying Bryson as the person depicted in the videotape was erroneous.

It [is] improper to allow a witness to testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions. There was no evidence offered here that [Bryson’s] appearance had changed by the time of trial or that he exhibited some characteristic that made [the officer] more likely to identify him correctly than the members of the jury.

(Punctuation and footnotes omitted.) Mitchell v. State, 283 Ga. App. 456, 458-459 (641 SE2d 674) (2007).

Bryson, however, has failed to show that he was prejudiced by this error. Significantly, Bryson’s identification as one of the perpetrators did not rest upon the videotape identification. Rather, the evidence showed that the custodian, who had previously seen the perpetrator’s faces, had identified Bryson in a pretrial photographic lineup and again during her testimony at trial. In addition, the officer who had chased and apprehended Bryson shortly after the armed robbery incidents made an in-court identification of Bryson. The getaway car that Bryson was driving contained the second victim’s property and the clothing items linked to the crimes. “Under these circumstances, we conclude that [Bryson] failed to demonstrate a reasonable probability that an obj ection or motion for mistrial related to the cited testimony by the [officer] would have changed the outcome of his trial.” (Footnote omitted.) Ware v. State, 307 Ga. App. 782, 785 (1) (c) (706 SE2d 143) (2011).

(d) Bryson contends that trial counsel erred in failing to object to the prosecutor’s impermissibly suggestive identification procedure at trial.

During the prosecutor’s examination, the custodian was asked whether she could identify the perpetrator whom she had observed on the date of the incident. In response, the custodian pointed to Bryson in making her in-court identification. To clarify that Bryson was the individual whom the custodian had pointed to, the prosecutor held his hand over Bryson’s head, asking, “Is that the one you’re talking about?” The custodian responded affirmatively.

At the motion for new trial hearing, trial counsel agreed that the custodian had already made the in-court identification of Bryson by pointing to him at the defense table prior to the prosecutor’s action. The record thus supports the State’s assertion that the prosecutor made the hand gesture merely for the sake of clarifying that the custodian had identified Bryson. Moreover, the custodian had previously identified Bryson as one of the perpetrators in a pretrial photographic lineup, and Bryson has not challenged that pretrial identification. In light of the prior identifications, Bryson’s claim of error regarding the subsequent identification procedure is unavailing. See, e.g., Taylor v. State, 282 Ga. App. 469, 472 (3) (b) (638 SE2d 869) (2006) (defendant’s claim of an impermissibly suggestive identification was unavailing since the witness had independently identified defendant as the person he had seen at the crime scene); Blunt v. State, 275 Ga. App. 409, 411 (1) (d) (620 SE2d 572) (2005) (in light of other evidence identifying the defendant as the perpetrator, there was no reasonable likelihood that the trial’s outcome would have been different if the challenged in-court identifications had been excluded).

(e) In addition, Bryson claims that trial counsel erred in failing to object to the prosecutor’s allegedly burden-shifting questioning of the second victim. In this regard, Bryson complains that the prosecutor was allowed to improperly pose the following question:

Decided June 29, 2012

George A. Bessonette, for appellant.

C. Paul Bowden, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

Q: Now, I understand that you did not see the man’s face clearly, but I’ll ask you as you look at [Bryson], is there anything about him that would keep [Bryson] from being the individual that robbed you that day?
A: No, sir.

Bryson contends that this line of questioning shifted the burden upon him to prove that he was not the man who robbed the second victim and violated the presumption of innocence. We disagree.

Although the prosecutor’s question was inartfully phrased, it essentially was an inquiry as to whether Bryson fit the physical description of the perpetrator who had committed the crime. The prosecutor’s question did not shift the burden of proof or violate the presumption of innocence as alleged. Moreover, the trial court’s instructions to the jury adequately explained the State’s burden of proof and the presumption of innocence. The trial court also specifically instructed the jury that “the burden never shifts to the defendant to prove that it was not him nor to prove it was some other person.” Pretermitting the impropriety of the question, any error was harmless. Cf. Dupont v. State, 204 Ga. App. 262, 264 (3) (418 SE2d 803) (1992) (ruling that any error in the trial court’s procedure was harmless since the trial court’s jury instructions adequately explained the State’s burden of proof and specifically informed the jury that defendant was not required to present any evidence). The trial court did not err in denying Bryson’s motion for a new trial on these grounds.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       We note that Brodes, supra, was decided in 2005, approximately two years after Bryson’s trial. The Brodes ruling nevertheless applies since the instant case was in the “pipeline” at the time of the ruling. See Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992) (adopting the “pipeline” approach, meaning that a new rule of criminal procedure will he applied to all pending cases then on direct review or not yet final).


author: Blackwell, Judge.

text:
    A12A0175.
    PRYCE v. RHODES et al.
    (729 SE2d 641)
   Blackwell, Judge.

Shah-Haan Pryce filed a medical malpractice complaint in Cobb County against Dr. Tampa Rhodes and her professional corporation, Providence Family Dentistry (collectively “Dr. Rhodes”). Dr. Rhodes moved for judgment on the pleadings, and the trial court granted her motion after finding that Pryce failed to file his complaint within the two-year period of limitation for medical malpractice claims pursuant to OCGA § 9-3-71 (a). Pryce appeals, claiming that the court below should have found that the period of limitation was tolled because Dr. Rhodes concealed the cause of his injury. We find no error and affirm.

A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment as a matter of law. Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010). When we review the grant of a motion for judgment on the pleadings, we owe no deference to the decision of the court below. Jenkins v. Wachovia Bank, 314 Ga. App. 257 (724 SE2d 1) (2012). And, like the court below, we must accept the truth of the factual allegations contained in the pleadings of the nonmoving party, and we view the pleadings in the light most favorable to the nonmoving party. See Ford v. Whipple, 225 Ga. App. 276, 277 (483 SE2d 591) (1997).

So viewed, the pleadings show that Pryce visited Dr. Rhodes for routine fillings in January 2007. During the course of the procedure, Dr. Rhodes attempted to inject anesthetic into Pryce’s right cheek. In doing so, the needle either “detached, or broke off at the hub,” and it became lodged in Pryce’s cheek. Dr. Rhodes immediately attempted to remove the needle, but she was unsuccessful, and she referred Pryce to an oral surgeon. Later that day, Pryce went to the offices of the oral surgeon, who is identified in the record only as “Dr. Tread-way.” Dr. Treadway unsuccessfully attempted to remove the needle from Pryce’s cheek, and he suggested that Pryce seek a CT scan at Crawford Long Hospital. Some hours later, doctors at Crawford Long performed a CT scan, located the needle, and urged Pryce to have surgery to remove it. About a week later, Pryce underwent an “extensive,” but unsuccessful, surgery at Cobb Wellstar Hospital, which caused him to remain hospitalized for four days.

In February of the same year, Pryce visited several doctors about the needle, and in June of that year, a CT scan showed that the needle was dangerously close to two of Pryce’s major blood vessels. Two months later, in August 2007, doctors at Emory University Hospital, with the help of CT imaging, attempted to remove the needle, but they were ultimately unsuccessful. Pryce has been informed by doctors that he must undergo continued CT scans to ensure that the needle does not move any closer to his major blood vessels, and it appears from Pryce’s complaint that the needle remains lodged in his cheek.

Pryce did not file suit until March 2010, which was more than three years after Dr. Rhodes allegedly caused the needle to break, and more than two years after Pryce attempted to have the needle removed at Cobb Wellstar and Emory. Pryce voluntarily dismissed his suit in June 2010, and he filed a renewal of the original complaint in December of the same year. Because Pryce became aware of his injury on the same date as the injury occurred, the period of limitation ordinarily would have begun to run on that date. See OCGA § 9-3-71 (a); Young v. Williams, 274 Ga. 845, 848 (560 SE2d 690) (2002). But Pryce claims that Dr. Rhodes made fraudulent statements to him, in which she claimed that she did not do anything wrong to cause the needle to break. Pryce says that Dr. Rhodes knew that “she had used the wrong sized needle for the injection” and that she “exerted force on the needlef,] causing it to break.” And Pryce asserts that, because Dr. Rhodes claimed not to have done anything wrong, he was deterred from bringing timely action, and his complaint is not barred by the two-year statute of limitation for medical malpractice actions. Indeed, OCGA § 9-3-96 provides that if a defendant’s fraud debars or deters a plaintiff from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.

Assuming that Dr. Rhodes’s statements could be considered fraudulent, the issue in this appeal is whether Pryce was thereby debarred or deterred from bringing timely suit. While Pryce asserts that Dr. Rhodes’s statements deterred him from filing suit, his argument fails as a matter of law because, “[o]nce a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment.” Bryant v. Crider, 209 Ga. App. 623, 627 (434 SE2d 161) (1993) (citation and punctuation omitted); see also Witherspoon v. Aranas, 254 Ga. App. 609, 614 (2) (b) (562 SE2d 853) (2002) (overruled in part on other grounds by Chandler v. Opensided MRI &c. LLC, 299 Ga. App. 145, 157 (2) (b) (682 SE2d 165) (2009)). Pryce’s own complaint affirmatively shows that he consulted at least two other physicians on the day his injury occurred. In addition, he received several other medical opinions and underwent numerous tests and procedures over the following months, each of which occurred more than two years before he brought his original action. Pryce’s pleadings show that this is not a situation in which his injury was concealed or mysterious, but rather it is a case in which the nature of the injury was obvious from the inception of the alleged wrongful act by Dr. Rhodes, regardless of whether Pryce understood the extent to which Dr. Rhodes was at fault for that injury. Compare Bynum v. Gregory, 215 Ga. App. 431, 434 (1) (450 SE2d 840) (1994) (period of limitation not tolled as a matter of law where defendant’s alleged fraud related to misdiagnosis of patient’s condition, and plaintiff claims that she failed to seek further diagnosis of the condition specifically because the defendant had fraudulently “told her the diagnosis and its etiology”). Here, Dr. Rhodes’s assertion that she had not done anything wrong did not prevent Pryce from asking any of the doctors that treated him over the next several months about what might have caused the needle to break in his cheek. As a result, the period of limitation did not remain tolled as a result of the alleged fraudulent statements. Because Pryce’s own pleadings reveal that he filed his original complaint after the expiration of the period of limitation, the court below properly granted Dr. Rhodes’s motion for judgment on the pleadings. See Braden v. Bell, 222 Ga. App. 144 (473 SE2d 523) (1996).

Decided June 29, 2012

Laura M. Shamp, for appellant.

Owen, Gleaton, Egan, Jones & Sweeney, Richard J. Baker, for appellees.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

       Given that Pryce claims that Dr. Rhodes caused the needle to break, it appears that it may have been a needle fragment that remained in Pryce’s cheek. But Pryce refers to the foreign object as a “needle” — not a “needle fragment” — in his pleadings, and we will defer to the terminology used by Pryce.

       See Pogue v. Goodman, 282 Ga. App. 385, 389 (2) (638 SE2d 824) (2006) (fraud requires a knowing failure to reveal negligence).


text:
    A12A0248.
    MCRAE, STEGALL, PEEK, HARMAN, SMITH & MANNING, LLP v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (729 SE2d 649)
   Adams, Judge.

This appeal involves the assertion of an attorney’s lien and three related lawsuits: (1) the Roberson case, in which a $1.2 million default judgment was entered against Jimmy Willoughby; (2) the Willoughby case, in which Willoughby and his relatives brought suit against an insurance company for failing to provide a defense in the Roberson case; and (3) the present case (the MSP case), in which Willoughby’s attorneys seek a declaratory judgment to enforce their attorney’s lien in the Willoughby case. The provocative fact is that after the insurance company was sued in the Willoughby case, it made a $690,000 payment directly to the plaintiff in the Roberson case, which, Willoughby’s attorneys argue, violated their attorney’s lien. In this — the MSP — case, following a bench trial, the trial court dismissed the attorneys’ declaratory judgment action with prejudice, and the attorneys appeal. For the reasons stated below, we affirm.

The parties agree that the standard of review for a bench trial is applicable:

The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.

(Punctuation and footnotes omitted.) Page v. Braddy, 255 Ga. App. 124, 126 (564 SE2d 538) (2002). See also Progressive Preferred Ins. Co. v. Aguilera, 243 Ga. App. 442, 445-446 (2) (533 SE2d 448) (2000).

Appellant MSP — McRae, Stegall, Peek, Harman, Smith & Manning, LLP — does not challenge the procedural history recited by the trial court in its order. That order, the evidence below, and this Court’s prior opinion in the Willoughby case show that Donald Roberson was injured on property occupied by Willoughby but owned and insured by Katherine and Richard Geiger (Willoughby’s daughter and son-in-law). Geiger, 305 Ga. App. at 399-400. The Geigers had a farm-owner’s .insurance policy from Georgia Farm Bureau Mutual Insurance Company (GFB) “that provided general liability insurance and covered all of [their] property.” Id. at 399. In December 2007, Roberson filed suit against only Willoughby (not the Geigers) in Haralson County, and although Katherine Geiger contacted GFB and believed that GFB was going to defend her father, on March 26, 2008, Roberson obtained a $1.2 million default judgment against Wil-loughby, who was unrepresented. Plaintiff Roberson was represented in that case by Wright Gammon.

On May 20, 2008, MSP, on behalf of Willoughby and the Geigers, filed suit in Polk County against GFB “alleging bad faith, negligence, fraud, and breach of fiduciary duty for failure to provide coverage and defend Willoughby in the Roberson suit, and also alleging emotional distress as a result of GFB’s actions,” as well as claims for attorney fees under OCGA § 13-6-11 and punitive damages. Geiger, 305 Ga. App. at 400. On July 23, 2009, the trial court granted summary judgment in favor of GFB on all claims. Id. at 399. On July 8, 2010, this Court affirmed summary judgment with regard to the Geigers because they “were not parties to the Roberson lawsuit and therefore have not suffered damage as a result of GFB’s alleged failure to defend Willoughby.” Id. at 403 (2). Nevertheless, this Court reversed summary judgment with regard to Willoughby on the ground that “a question of fact exist[s] as to whether Willoughby was a member of the Geigers’ household and, thus, whether he was an insured to whom GFB had a duty to defend. . . .” Id. at 400 (l). That case — Willoughby’s tort claim against GFB for failure to defend him in the Roberson case — is still pending in Polk County. In July 2010, MSP gave GFB notice of its lien in that case.

On August 9, 2010, MSP filed the present action, the third case relevant to this appeal — its complaint for declaratory judgment regarding its lien in the Willoughby case. MSP also named Roberson as a defendant but later dismissed him. In its complaint, MSP seeks declaratory relief pursuant to OCGA § 9-4-2 in several forms, including: (1) that any satisfaction of the judgment in the Roberson case does not extinguish Willoughby’s claims for relief in the Willoughby case; (2) that the Willoughby case “arose” when his assets were exposed to liability for the default judgment in the Roberson case; (3) that Willoughby’s damages in the Willoughby case were at least $1.2 million plus interest subject to a credit for amounts GFB had paid to satisfy the judgment in the Roberson case; (4) that MSP’s lien attached to the Willoughby case upon filing and that it attached to any payment by GFB to satisfy the Roberson case, “just as though Mr. Willoughby had recovered from GFB in [the Willoughby case]”; and (5) that GFB shall be liable to MSP and pay MSP its fees to satisfy its lien in the Willoughby case upon any payment by GFB to satisfy the judgment in the Roberson case.

But on November 24, 2010, over two years after entry of the default judgment in the Roberson case and while both the Willoughby and MSP cases were pending, and with no notice to MSP or Wil-loughby, GFB paid and Roberson’s estate accepted $690,000 in satisfaction of the judgment entered in the Roberson case; and Roberson subsequently filed a full and final satisfaction “of the entire Judgment, specifically including but not limited to all costs, pre- and post-judgment interest, and attorney’s fees.” Roberson’s estate also fully released GFB of and from any and all possible claims and actions. GFB explained at a hearing that it made a “calculated business decision” to mitigate damages in the event that a jury in the Willoughby case determined that Willoughby was an insured under the Geiger policy and that GFB had therefore breached its duty to defend him in the Roberson case. After learning of the payment, MSP amended its complaint in this case to include claims of conversion, punitive damages, and expenses of litigation.

Following an evidentiary hearing, the lower court dismissed the MSP case, essentially on the ground that MSP did not have a lien that pertained to the $690,000 payment made by GFB to Roberson. GFB also argued below that MSP had not presented a case with an actual or justiciable controversy under the Declaratory Judgment Act and that therefore the trial court lacked jurisdiction. We affirm on this latter ground.

An attorney’s lien on a claim for money, i.e., a “charging” lien, “is the equitable right of the attorney to recover his fees and costs due him for his services, and may be satisfied out of the judgment obtained by his professional services.” Law Office of Tony Center v. Baker, 185 Ga. App. 809 (366 SE2d 167) (1988).In Georgia, attorneys charging liens are governed by statute in derogation of common law, see OCGA § 15-19-14 (b), and therefore the relevant Code section must be strictly construed. Woodward v. Lawson, 225 Ga. 261, 262 (2) (167 SE2d 660) (1969); Hill v. Centennial/Ashton Properties Corp., 254 Ga. App. 176, 178 (2) (561 SE2d 853) (2002). “Accordingly, the statute will not be construed so as to apply to any factual situation not strictly within its wording. [Cits.]” (Punctuation omitted.) Baker, 185 Ga. App. at 810.

The charging lien subsection provides that attorneys have liens upon “actions, judgments and decrees for money” and that no one may satisfy “such an action, judgment, or decree” until the lien or claim for fees is fully satisfied:

Upon actions, judgments, and decrees for money, attorneys at law shall have a lien superior to all liens except tax liens; and no person shall be at liberty to satisfy such an action, judgment, or decree until the lien or claim of the attorney for his fees is fully satisfied. Attorneys at law shall have the same right and power over the actions, judgments, and decrees to enforce their liens as their clients had or may have for the amount due thereon to them.

OCGA § 15-19-14 (b). Thus, it is apparent and not in dispute that MSP has such a lien on the Willoughby case — a tort action against GFB for money damages for the alleged breach of GFB’s duty to defend Willoughby in the Roberson case. MSP does not and never had a lien on the Roberson case; Wright Gammon represented Roberson, and MSP’s only role in that case was to represent Willoughby in post-judgment proceedings.

MSP’s primary argument on appeal is that GFB’s payment to Roberson should be subject to its lien in the Willoughby case because the payment was made in response to its efforts in the Willoughby case, which may be true, and it was made for the benefit of Wil-loughby, whom they represent in the Willoughby case. MSP adds that GFB had notice of the lien and that the payment GFB made to Roberson improperly evaded MSP’s lien in the Willoughby case. GFB counters that the payment it made settled the Roberson case, not the Willoughby case, and that therefore MSP’s lien does not attach to the payment. For the reasons stated below, and setting aside the question of whether MSP’s lien attaches to GFB’s payment, we conclude that MSP’s remedy is solely to be found in the Willoughby case, not in this declaratory judgment action. Therefore, the trial court’s dismissal of the declaratory judgment action was correct, albeit for a different reason.

It is true that a charging lien is “ ‘fixed as soon as the suit (is) filed, and [cannot] be divested by any settlement or contract, it matters not by whom the settlement may have been made or attempted.’ Payton v. Wheeler, 13 Ga. App. 326, 328 (79 SE 81) (1913).” Howe & Assocs., PC. v. Daniels, 274 Ga. App. 312, 314 (1) (618 SE2d 42) (2005), aff’d, 280 Ga. 803 (631 SE2d 356) (2006). More specifically, “[a]fter suit has been filed it can not be settled so as to defeat the lien of the attorney for his fees. [Cit.]” (Punctuation omitted.) Howe & Assocs., 280 Ga. at 804. In that event, “notwithstanding the settlement, (the attorneys) [are] entitled to prosecute [the case] to judgment for the purpose of recovering [their] fees.” Id. Moreover, in Howe & Assocs., the Supreme Court made clear that the remedy in such a case must be pursued in the action to which the lien attaches. Id. As stated in the statute itself, attorneys “have the same right and power over the actions, judgments, and decrees to enforce their liens as their clients had or may have for the amount due thereon to them.” OCGA § 15-19-14 (b). See also Nodvin v. Fabian, 153 Ga. App. 716 (266 SE2d 253) (1980).

For instance, if the case to which an attorney’s lien has attached is settled and the case dismissed, the lien will be extinguished. Howe & Assocs., 280 Ga. at 804. The attorney’s remedy is to move to vacate the dismissal and reinstate the original action in order to prosecute it for the purpose of recovering the fee. Id. The attorneys are not authorized to bring a separate suit. Id.; Woods v. Jones, 305 Ga. App. 349, 353 (2) (699 SE2d 567) (2010). Thus, even assuming that GFB’s payment to Roberson violated MSP’s lien in the Willoughby case, which we do not decide, MSP’s remedy is in the Willoughby case.

“The purpose of the Declaratory Judgment Act is ‘to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.’ OCGA § 9-4-1.” Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107, 109 (586 SE2d 228) (2003). As stated by the Supreme Court,

[a] declaratory judgment is authorized when there are “circumstances showing a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest. . . .” [Cit.] Where the party seeking declaratory judgment does not show it is in a position of uncertainty as to an alleged right, dismissal of the declaratory judgment action is proper [.]

Baker v. City of Marietta, 271 Ga. 210, 214 (518 SE2d 879) (1999). There is no valid claim where the rights of the parties have already accrued and there is no risk to the petitioner of future undirected action. Id. Thus, although relief by declaratory judgment is available even when the petitioner has other adequate legal or equitable remedy or remedies, OCGA § 9-4-2 (c), “ ‘(a) declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding pending in a court of competent jurisdiction, in which the same questions may be raised and determined.’ [Cit.]” Southeast Service Corp. v. Savannah Teachers Properties, 263 Ga. App. 513, 514 (588 SE2d 310) (2003).

Decided June 29, 2012.

McRae, Stegall, Peek, Harman, Smith & Manning, Julius W. Peek, Jr., Jackson B. Harris, for appellant.

In this declaratory judgment action, MSP seeks declarations regarding the viability of Willoughby’s claims for relief in the Wil-loughby case; the date Willoughby’s claims arose in that action; the amount of damages in that action, the date MSP’s lien attached to the Willoughby case and to what it attached; and whether GFB is liable to satisfy MSP’s lien in the Willoughby case. These are the same questions raised in the Willoughby case. MSP also asserts a claim for damages for GFB’s alleged conversion of its attorney fee in the Willoughby case by making the payment to Roberson. But this claim is redundant with MSP’s claim of lien, for which it may yet recover once liability under the lien is established in the Willoughby case. Cf. Bennett v. Cannon, 114 Ga. App. 479, 481 (2) (151 SE2d 828) (1966) (“Before the attorney can establish his right to contingent fees, he must first establish his client’s right to recover against the defendant.”).

Because the issues raised here are the same as those raised in the Willoughby case and because the rights of the parties in that case have already accrued, declaratory judgment is not available to MSP; therefore, under the right-for-any-reason rule, the trial court did not err by dismissing the case. See, e.g., Pinnacle Benning v. Clark Realty Capital, 314 Ga. App. 609, 612 (724 SE2d 894) (2012). But because the dismissal should have been without prejudice, “we affirm the trial court’s dismissal of [MSP’s] complaint but remand for the entry of an order dismissing these counts without prejudice.” Id. at 619 (“the involuntary dismissal of a declaratory-judgment action for want of justiciability does not operate as an adjudication on the merits and is instead an issue of subject-matter jurisdiction. Accordingly, dismissal must be without prejudice.” (id. at 614)).

Judgment affirmed and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.

James, Bates, Pope & Spivey, Duke R. Groover, Brinson, Askew, Berry, Seigler, Richardson & Davis, Mark M. J. Webb, for appellee.

       The Willoughby case has already appeared in this Court. See Geiger v. Ga. Farm Bureau Mut. Ins. Co., 305 Ga. App. 399 (699 SE2d 571) (2010). As of the time appellate briefs were filed herein, it was still pending in the trial court.

       MSP also entered an appearance in the Roberson case on behalf of Willoughby for post-judgment proceedings.

       GFB’s petition for a writ of certiorari to the Supreme Court of Georgia was denied, and this Court remitted the case to the trial court.

       Black’s defines a “charging” lien as “[a]n attorney’s lien on a claim that the attorney has helped the client perfect, as through a judgment or settlement.” Black’s Law Dictionary (9th ed. 2009), lien.