text:
    A11A0063.
    LEE et al. v. SHIM et al.
    (713 SE2d 906)
   Adams, Judge.

The purchasers of a sports bar brought suit against the sellers and others, raising breach of contract and other claims in connection with their inability to obtain, in their own name, the proper licenses and permits necessary to run the establishment. The relevant agreements included protection for the purchasers for just such an event. The defendants denied liability, and a bench trial ensued. The trial court held in favor of the purchasers. The defendants now appeal.

The factual findings of a court following a bench trial “shall not be set aside unless clearly erroneous”; in other words, the factual findings will be upheld if there is any evidence to support them. Gooch v. Tudor, 296 Ga. App. 414 (674 SE2d 331) (2009). Decisions on questions of law are reviewed de novo. Id. And the evidence shall be construed in favor of the trial court’s findings of fact. Realty Lenders, Inc. v. Levine, 286 Ga. App. 326, 326-327 (649 SE2d 333) (2007).

So construed, the evidence shows the following: Daniel Lee, the primary defendant, is the son of Ran and Gamillo Lee. As of 2004, both of his parents owned corporations that owned entertainment establishments: Ran Lee owned RLee, Inc., which owned the “Impacto Sport Bar & Grill” located in Jonesboro; and Gamillo Lee owned a corporation named Jonesboro Billiards, Inc., which owned the “Corona Restaurant & Billiards.” Daniel Lee ran those businesses for his parents, who can neither read nor write in English, and who knew nothing more about the businesses than that Daniel would ask them to sign documents from time to time. In a finding that has not been appealed, the trial court pierced both corporate veils and held that “Ran Lee, individually, RLee, Inc., Gamillo Lee, individually, and Jonesboro Billiards, Inc. were merely business conduits for their son’s fraudulent business behavior.”

As a part of creating and operating Impacto in February 2004, Daniel Lee obtained all the necessary operational permits and licenses, including a dance floor permit, which was required by Clayton County. Only five or so months later in 2004, Daniel Lee orchestrated the sale of Impacto for $1.2 million to S.M.L. Entertainment, Inc., a company solely owned by Sean Sang Lee (no relation). Daniel Lee even testified that Sean Lee “purchased the business from me.” Sean Lee, however, could not get a liquor license in his own name, and so, all the business licenses remained in the name of Ran Lee or her company RLee, Inc. for the nine months or so that Sean Lee operated Impacto.

Eventually, plaintiffs Jung Souk Shim and Myung Sook Kim approached Sean Lee and Daniel Lee about purchasing Impacto. On March 15, 2005, Shim and Kim entered into a “Purchase and Sale Agreement” in which they agreed to purchase the bar for $1.2 million, the same price Sean Lee had agreed to pay. On April 12, 2005, Shim and Kim’s corporation — Eiffel, Inc. — (together, the purchasers) purchased the sports bar for $700,000 paid on or before that day, plus $500,000 to be paid at a later time. Shim and Kim were concerned about their ability to obtain the licenses and permits necessary to operate the business, and they desired protection from the sellers for that contingency. Accordingly, the transaction was documented in several related agreements that reflect that the sellers induced the purchasers to close without licenses but with the defendants’ guarantee to return all sale proceeds in the event the purchasers could not obtain them.

First, “Special Stipulation (c)” of the “Memorandum of Sale” dated April 12, 2005, provides that S.M.L. Entertainment would refund to Eiffel all of its payments, and the sale would be declared void, if Eiffel was unable to obtain all necessary licenses and permits:

The Closing is contingent upon Purchaser obtaining all licenses and permits necessary to operate the business, including without limitation, business license and alcohol license, from the appropriate City, County, and/or State of Georgia. In the event Purchaser is unable to obtain said licenses or permits without its faults including DUI and criminal records, all payments shall be returned to Purchaser, and this Agreement shall be null and void, and Seller and Purchaser shall have no further claims against each other.

That repayment provision was backed up by three tiers of guarantees executed by two individuals and three corporations. In a separate April 12, 2005 agreement, Daniel Lee, Danvi Enterprises, Inc. (Daniel Lee’s corporation), Sean Sang Lee, S.M.L. Entertainment, Inc., and Jonesboro Billiards, Inc. first acknowledged that they “induced [Eiffel] to consummate the sale of the Business with contingency of [Eiffel] obtaining business and alcohol licenses after the closing (hereinafter referred to as ‘Licenses’)-” (Emphasis supplied.) Accordingly, they agreed “to guarantee to reimburse to [Eiffel] the sale proceeds in the event [Eiffel] fails to obtain the Licenses after the closing.” The specifics of the guarantee show that Danvi and S.M.L. first promised to return the sale proceeds “within ten (10) days after [Eiffel’s] notice of its failure to obtain the Licenses.” Daniel Lee and Sean Sang Lee then personally guaranteed Danvi and S.M.L.’s performance:

Daniel Lee and Sean Sang Lee personally guarantee to [Eiffel] the reimbursement of the Sale Proceeds including note payments of Danvi Enterprises, Inc. and S.M.L. Entertainment, Inc. Both agree to reimburse the Sale Proceeds including note payments in the event that Danvi Enterprises, Inc. and S.M.L. Entertainment, Inc. fail to reimburse the Sale Proceeds to Purchaser.

In a third layer of protection, Jonesboro Billiards, Inc. (Daniel Lee’s father’s company) backed up both of those guarantees with the promise to give Eiffel the other bar — the Corona — in the event the first four guarantors did not perform:

Jonesboro Billiards, Inc. agrees to transfer to Purchaser at no additional cost to Purchaser the business known as “Corona Restaurant & Billiards” ... in the event that Danvi Enterprises, Inc., S.M.L. Entertainment, Inc., Daniel Lee and Sean Sang Lee fail to reimburse to Purchaser the Sale Proceeds including note payments.

Finally, in another April 12, 2005 agreement, Daniel Lee agreed to work as a consultant for Eiffel and agreed “to cooperate with [Eiffel] to obtain such licenses and permits and agrees to execute such reasonable documentation, as may be necessary for [Eiffel] to obtain such licenses and permits.”

From that day forward, Daniel Lee knew that Shim, Kim, and Eiffel were attempting to get licenses and permits in their own name but that they never succeeded.

First and foremost, the alcohol license and dance floor permit remained in RLee’s name the entire time of the events relevant to this lawsuit; in fact, Daniel Lee continued to renew them in RLee, Inc.’s name after Eiffel’s purchase. In addition, Lee admits he knew in April 2005 that the purchasers could not even get a business license until the landlord of the premises agreed to an assignment of the lease from RLee, Inc. to Eiffel, Inc. This assignment was not obtained until July 1, 2005.

Then, later in July, Shim and Kim hired lawyer Thomas Choi to help with liquor licensing. Thereafter, Choi learned that, in addition to other licenses, the purchasers needed a dance floor permit from Clayton County, and he recommended obtaining a lawyer from that county. Daniel Lee admitted that in August 2005, he was aware of these events; he learned from Choi’s firm that the purchasers were having trouble getting necessary licenses. Kim also told Lee at that time that they could not get licenses. Daniel Lee attempted to assist by referring the purchasers to a Clayton County attorney named Steven Frey. Kim and Shim paid Frey $28,000 in fees for him to help them obtain the necessary licenses, and it was Frey who first informed Kim that a dance floor permit was required. Kim testified that Frey applied for the necessary licenses but that the applications were unsuccessful. During this period, Kim told Daniel Lee two or three times a month that they could not obtain the necessary licenses.

On September 16, 2005, Kim and Shim formally notified Sean Sang Lee and S.M.L. Entertainment, Inc., in writing, that the permits necessary to operate the business could not be obtained. They invoked Special Stipulation (c) of the Memorandum of Sale and demanded the return of all sale proceeds and the cancellation of all obligations between the parties. They received no response.

Nevertheless, Kim and Shim continued to attempt to obtain licensure. In November 2005, they hired another attorney, Keith Martin, to obtain a business license, a liquor license, and a dance floor permit. Based on that lawyer’s investigation of the facts, he determined that the purchasers would not be able to obtain a dance floor permit at all, which was essential to the business. He advised Kim and Shim that the only way to continue operating would be to transfer a small portion of Eiffel stock to RLee, Inc., which still held all licenses and permits, so that RLee’s permits could be used for the time being. Accordingly, as Daniel Lee was well aware, the parties entered into an additional agreement in January 2006 to do exactly that. Indeed, Daniel Lee admitted that the January 2006 transaction was necessary so that the purchasers could continue to operate using RLee’s business license, liquor license, and dance floor permit.

The January 2006 transaction included an obligation on the purchasers that they again attempt to obtain the necessary licensing in their own name. If that could be accomplished, the January transaction would essentially be undone. Immediately thereafter, Kim and Shim, with Martin’s assistance, took steps to obtain the licenses in their own names. Nevertheless, the purchasers were never able to obtain the necessary licensing; and in November 2006, they received a denial of their application for a retail alcohol consumption license indicating that the application was denied because a dance floor was not permitted. At that point, the purchasers ceased operating the business. The space is now a Japanese restaurant.

Kim and Shim reiterated their demands on Sean Lee and Daniel Lee for the return of their money pursuant to the original agreements, but the defendants never complied by returning the $700,000 or giving them the other bar.

The purchasers filed suit and raised claims of breach of contract, fraud and misrepresentation, punitive damages, and unjust enrichment. Sean Sang Lee and S.M.L. Entertainment, Inc. apparently failed to answer the complaint. Following a bench trial involving the remaining defendants, the trial court entered a written “Verdict and Judgment” in favor of the purchasers on all claims. The appellants raise five enumerations of error.

1. The appellants’ first enumeration of error concerns the purchasers’ claim of breach of contract:

The trial Court erred in finding that Defendants breached the April 12, 2005 Memorandum of Sale contract based upon a finding that the Appellees, by September 2005, were unable to obtain a liquor license necessary for the operation of the business, that the Plaintiffs notified Appellants of their inability to obtain the necessary license and that Appellants were in breach of the Memorandum of Sale when they declined to pay back $700,000 which Appellees had paid toward the purchase of the Impacto.

This enumeration does not accurately reflect the trial court’s order. The trial court actually held that Danvi, Daniel Lee, Gamillo Lee, and Jonesboro Billiards breached the April 12, 2005 guarantee agreement, not the Memorandum of Sale. The trial court’s finding is supported by the wording of that agreement and the evidence presented at trial. In the guarantee, Danvi and S.M.L. first promised to return the sale procéeds “within ten (10) days after [Eiffel’s] notice of its failure to obtain the Licenses.” The guarantee does not require a written notice. The evidence shows that the purchasers notified S.M.L. in writing on September 16, 2005 that they were unable to obtain the licenses; that they told Daniel Lee, hence Danvi, the same information two or three times a month; and that neither entity ever complied. The failure of S.M.L. and Danvi to honor the guarantee triggered the personal guarantees of Sean Lee and Daniel Lee under the plain wording of the same agreement. And, in turn, their failure triggered the obligation of Jonesboro Billiards, Inc. to transfer the Corona to the purchasers.

The appellants argue that “there is no evidence to support a finding that the Appellees undertook any effort whatsoever between April 12, 2005 and September 25, 2005 ... to properly apply for a dance floor and/or liquor license for which they were rejected.” First, however, there was evidence that the purchasers expended effort during that time and that they were not able to obtain licenses: they had hired two different lawyers by September 25, 2005 to assist them with that process and had spent at least $28,000 in legal fees in an unsuccessful effort; and Kim testified that he applied for licenses in September 2005 and did not get any. Daniel Lee, the only witness for the defendants, admitted he knew nothing about the purchasers’ efforts to obtain licensing, and therefore no rebuttal was offered to the purchasers’ evidence.

Second, after that time, the evidence shows that the purchasers mounted two more efforts to obtain the licenses, and the trial court’s decision was not based solely on the purchasers’ inability to obtain licenses by September 25, 2005; none of the agreements set a deadline. The purchasers hired Keith Martin, who spoke with several county officials about the licensing issues and determined that a dance permit could not be obtained, in part because the county no longer allowed dance floors in establishments that served alcohol. Martin also helped the parties mitigate the problem by helping to arrange the January 2006 transaction, whereby the purchasers gave a portion of ownership back to RLee, Inc. so that they could continue to operate under RLee’s existing licenses. And the purchasers made a renewed attempt immediately afterward, which again proved unsuccessful. This evidence supports the trial court’s true finding that “the permits were never able to be obtained.” Cf. Wallick v. Period Homes, Ltd., 252 Ga. App. 197, 202 (2) (555 SE2d 863) (2001) (question of whether party made “genuine good faith efforts to meet the governmental approval contingency in the contract is a question of fact for the jury to resolve at trial.”); Reid v. Fain, 134 Ga. 508 (68 SE 97) (1910) (“The contractual obligation of the tenant to secure a retail liquor license implies a reasonable effort in good faith to get such a license.”).

The appellants also argue that the contingency in the agreements regarding obtaining licenses was too vague to be enforced and that therefore the agreements should be void. “ ‘[Ijndefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void.’ [Cits.]” Kueffer Crane & Hoist Svc. v. Passarella, 247 Ga. App. 327, 330 (3) (543 SE2d 113) (2000). But “where the manner of performance is left more or less to the discretion of one of the parties to the contract, he is bound to the exercise of good faith.” (Citation, punctuation and emphasis omitted.) Hunting Aircraft v. Peachtree City Airport Auth., 281 Ga. App. 450, 452 (1) (636 SE2d 139) (2006). And “[w]hat constitutes good faith is a question for the finder of fact.” Id. Here, the purchasers were required to use a good faith effort to obtain the licenses within a reasonable time. Thus, we do not find that the agreements were indefinite to such an extreme so as to render them void.

In addition, we fail to see how the appellants benefit from this argument. A finding that the contract is void is essentially the same remedy being enforced under the contingency clause of the Memorandum of Sale:

In the event Purchaser is unable to obtain said licenses or permits without its faults including DUI and criminal records, all payments shall be returned to Purchaser, and this Agreement shall be null and void, and Seller and Purchaser shall have no further claims against each other.

Finally, the appellants contend the contingency clause was not triggered because the purchasers in fact operated Impacto for 20 months under RLee’s license, therefore they in fact obtained the necessary licenses to run the Impacto. But this argument is disingenuous. RLee already had licenses, and the clear intent of the agreements was to provide a contingency for the possibility that the purchasers could not obtain the licenses on their own behalf.

2. The appellants contend the trial court made several errors with regard to the claim of fraud and misrepresentation. They first contend the court erred by finding that in April 2005 the sellers were under a duty to disclose that the purchasers would be unable to obtain a dance floor permit and/or a liquor license; they add that there is no evidence that the sellers were aware of that problem at the time of the sale.

We agree that there is no evidence to support this factual finding. Although there is evidence showing that Daniel Lee knew that Impacto needed a dance floor permit, there is no evidence he was aware in April 2005 that an ordinance had been passed prohibiting dance floors in establishments that sold alcohol, as was claimed by the appellees. The only evidence cited by the appellees in support is the testimony of Thomas Choi and Keith Martin, who were not involved in the transaction in April 2005 and only came to be involved, respectively, in July and November of that year. Although Martin held the opinion that RLee, Inc. should never have been issued a dance floor permit, that testimony was based on hearsay, and, moreover, it does not establish that the sellers illegally obtained a permit or that they knew that they should not have received one in 2004. The alleged ordinance itself was never introduced into evidence or even quoted in the record. “ ‘(I)t is well established . . . that judicial notice can not be taken by the superior court or this court of city or county ordinances, but they must be alleged and proved.’ [Cits.]” Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996) (“trial court erred in ordering appellants to comply with the terms of an ordinance not properly before the court”); see also Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d 133) (2010). Our own review of the record shows no other evidence suggesting that Daniel Lee or any of the appellants knew in April 2005 that the purchasers would not be able to obtain a dance floor permit. This holding also addresses the trial court’s finding that Daniel Lee misrepresented that he was in compliance with all city and county ordinances at the time of the sale.

The court made several other findings in support of its award for fraud against the appellants. The appellants contend the court erred by finding that Daniel Lee agreed to pledge the Corona as a part of the guarantee given that he never intended to transfer the Corona. The court actually found that Lee sold the Corona in violation of the January 2006 agreement after he knew the purchasers could not obtain the required dance floor permit and after the purchasers had made numerous demands for the return of their money and tendered back the Impacto. The January 2006 agreement included a provision stating that Eiffel possessed a lien against the Corona as evidenced by a UCC-1 filing and that Eiffel could foreclose on that lien in the event of a breach of the agreement by RLee, Inc. And Daniel Lee essentially admitted that he sold it knowing that it had been pledged as collateral. Thus there was some evidence to support this finding of the court. The appellants also contend the court erred by finding that Daniel Lee failed to disclose in April 2005 that the purchasers would need a dance floor permit. But Kim testified to that fact.

With regard to the fraud claim as a whole, our holding that there is no evidence to support the finding that the sellers knew at the time of the sale that the purchasers would not be able to obtain a dance floor permit undermines part of the claim, including the point raised in the appellants’ third enumeration of error. But the court made other factual findings to support its finding of fraud. And, although the purchasers “could not recover for both breach of contract and fraud if the fraud related purely to the inducement to enter into the contract,” damages that arise from “[a different fraud] would not be duplicative of those for breach of contract.” Long v. Marion, 182 Ga. App. 361, 366 (5) (355 SE2d 711) (1987) (physical precedent only), aff'd, 257 Ga. 431 (360 SE2d 255) (1987). We therefore vacate that finding and remand for the court to reconsider the issue and modify the judgment consistent with this opinion.

3. The trial court found that Daniel Lee’s parents, RLee, Inc. and Jonesboro Billiards were unjustly enriched because they benefitted unjustly by receiving $514,899.34 of the purchase funds from the purchasers. In their fourth enumeration of error, the appellants contend the trial court erred by entering awards of both breach of contract and unjust enrichment because the claims are mutually exclusive. In their fifth enumeration, they contend the trial court — a state court — lacked jurisdiction to give an award based on the equitable theory of unjust enrichment.

(a) First, the jurisdiction question. State courts have jurisdiction over civil trials, “except those actions in which exclusive jurisdiction is vested in the superior courts.” OCGA § 15-7-4 (a) (2). “All equity jurisdiction shall be vested in the superior courts. ...” OCGA § 23-1-1. Here, the purchasers raised claims of money had and received and unjust enrichment, but in both claims they sought only damages, not equitable relief. Because the complaint contained neither allegations of nor prayers for equitable relief, the state court was not without jurisdiction. Stone Mountain Pool Supply Co. v. Imperial Pool Co., 170 Ga. App. 283 (1) (316 SE2d 769) (1984); and see Multi-Media Holdings v. Piedmont Center, 15 LLC, 262 Ga. App. 283, 287 (3) (583 SE2d 262) (2003) (re: claim of piercing the corporate veil). See generally Regal Textile Co. v. Feil, 189 Ga. 581, 584-585 (6 SE2d 908) (1940) (with regard to superior court jurisdiction, “the question whether it is a suit in equity is determined by the allegations and prayers”; “an ordinary cause of action for money had and received, or for money paid by mistake or (as it is now often called) for unjust enrichment, is one now cognizable at law . . .”); Reidling v. Holcomb, 225 Ga. App. 229, 232 (2) (483 SE2d 624) (1997) (“The theory of recovery for unjust enrichment arises both at law and equity. [Cits.]”). We find no error in the state court’s jurisdiction.

(b) Next, the appellants claim that the court erred by awarding damages for both breach of contract and unjust enrichment because the claims are mutually exclusive. They argue that “the theory of unjust enrichment applies when as a matter of fact, there is no legal contract,” and that the purchaser’s claims were based on a contract.

First, the court awarded unjust enrichment damages against Daniel Lee’s parents (Ran Lee and Gamillo Lee) and their corporate entities (RLee, Inc. and Jonesboro Billiards, Inc). The court assessed damages for breach of the April 2005 Agreement against two of these same defendants — Gamillo Lee and Jonesboro Billiards. The appellees essentially concede that they are not entitled to two recoveries against these latter two defendants: they state that “the liability of those two appellants under the theory of unjust enrichment is subsumed by their liability for a greater amount under breach of contract theories.”

We agree because plaintiffs are barred from a double recovery of damages. See Georgia Northeastern R. R. v. Lusk, 277 Ga. 245, 246 (587 SE2d 643) (2003); see also Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 711-713 (2) (507 SE2d 493) (1998) (party “not permitted a double recovery of the same damages for the same wrong”). A plaintiff who has been successful on alternate contractual and tort remedies is required to elect its remedy. Marvin Nix Dev. Co. v. United Community Bank, 302 Ga. App. 566, 568 (692 SE2d 23) (2010).

Normally, the next step would be to vacate the breach of contract and unjust enrichment judgments against Gamillo Lee and Jones-boro Billiards and remand to require that the purchasers elect between the contractual and tort remedy. Id. But, we first address the ramifications of our holding in Division 2 on all claims of unjust enrichment against the defendants held liable on that claim.

In Division 2, we held that there is no admissible evidence suggesting that the appellants knew in April 2005 that the purchasers would not be able to obtain a dance floor permit, undermining some part of the purchasers’ fraud claim. Their unjust enrichment claim appears to be inextricably intertwined. In that claim, the purchasers contend that Daniel Lee’s parents and their corporate shells were unjustly enriched when a portion of the April 2005 purchase money paid to S.M.L. Entertainment (Sean Sang Lee’s company) was used to pay S.M.L.’s debts to RLee, Inc arising out of the earlier sale of the Impacto to S.M.L. Unjust enrichment has been described as follows:

The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received; otherwise the party has been unjustly enriched at the expense of another and, in fairness and good conscience, must reimburse the other to the extent of the value conferred.

Decided July 12, 2011.

David C. Ates, for appellants.

Kevin T. Moore, for appellees.

Reidling, 225 Ga. App. at 232. This Court cannot determine the degree to which the trial court’s award for unjust enrichment was premised on the erroneous factual finding that Daniel Lee knew in April 2005 that the purchasers could not get the permit. We therefore vacate the entire award of unjust enrichment and remand to reconsider the issue and modify the judgment consistent with this opinion.

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

Barnes, P. J., and Blackwell, J., concur.

       The remaining defendants/appellants are Daniel Lee, Danvi Enterprises, Inc., RLee, Inc., Ran Lee, Jonesboro Billiards, and Gamillo Lee.

       The court also found that Ran Lee and RLee, Inc. breached the January 2006 agreement. The appellants do not argue at all regarding the court’s finding of breach of this agreement, therefore any possible argument is abandoned. See Court of Appeals Rule 25 (c) (2).

       The court found that Ran Lee and RLee, Inc. breached the January 2006 contract. But that contract was separate in time from the payments that Ran Lee and RLee, Inc. allegedly received unjustly in April 2005.


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A0079.
    McMILLIAN v. McMILLIAN et al.
    (713 SE2d 920)
   Blackwell, Judge.

When one partner misappropriates a business opportunity of his partnership for the benefit of a competitor, the remaining partners are deprived of the opportunity to profit from the lost business opportunity, and they may be entitled to recover damages in tort for this deprivation. We granted a petition for interlocutory review in this case to address the extent to which a partner so deprived can discover the financial records of the competitor as proof of his damages. Bruce and Robbie McMillian formed a partnership to engage in the bulk-mail services business. Robbie eventually left the partnership and formed Mail Source & Data, Inc., a company that apparently is engaged in the same kind of business. Bruce sued Robbie and Mail Source, alleging that Robbie misappropriated business opportunities of the partnership and gave these opportunities to Mail Source, thereby violating the duties that Robbie owed to the partnership and Bruce. In the course of discovery, Bruce sought the financial records of Mail Source, arguing that they are admissible proof of his damages. The court below disallowed such discovery, and Bruce sought immediate review, which we allowed. This appeal followed.

This case comes to us before discovery is complete and before the evidentiary record has been developed fully, and the parties vigorously dispute many of the facts. But viewing the facts in the light most favorable to Bruce, the party seeking to compel discovery, it appears that, in April 1997, Robbie met with Bruce, his cousin, and asked Bruce to finance a bulk-mail services business that Robbie hoped to launch. Bruce agreed, and along with a third individual, they formed a partnership for the purpose of operating a bulk-mail services business, which they called “Corporate Mail Management.” Each partner had a different role in the partnership: Bruce funded its operations; Robbie marketed its services; and the third partner managed business operations. In 1999, the third partner decided to pursue other opportunities and withdrew from the partnership, and Bruce and Robbie decided to continue their partnership as equal partners. Robbie continued to market the services of the partnership, and he assumed responsibility for managing its business operations and even held himself out as the president of Corporate Mail. Bruce continued to fund the business and pledged his personal residence as collateral to secure a business loan and to purchase equipment for the partnership. Despite their efforts, the partnership never made much money.

Over time, Robbie became acquainted with other people who had an interest in entering the bulk-mail services business. In August 2002, Robbie met with two of these people and agreed to start up a new company with them. The new company would offer the same kinds of services as Corporate Mail and, in fact, directly compete with it. At some point in 2002, Robbie told Bruce that he planned to withdraw from their partnership, ostensibly because he had tired of the bulk-mail services business and wanted to do something else altogether. It is undisputed that Robbie never told Bruce about his new company or that it would compete with Corporate Mail.

The new company, Mail Source, was formed in January 2003 and commenced operations almost immediately. Between January and April 2003, it appeared that Robbie still was managing Corporate Mail. Bruce now says, however, that Robbie actually was working for Mail Source during this time, diverting to Mail Source the business opportunities that were presented to Corporate Mail. In April 2003, Robbie shut down Corporate Mail, taking all its assets and business opportunities with him to Mail Source. In its first year alone, Mail Source earned more than $245,000 from customers that previously had been customers or prospective customers of Corporate Mail.

Having been left with nothing but the debts of Corporate Mail, Bruce brought this lawsuit against Robbie and Mail Source. In his complaint, Bruce asserts claims against the defendants based on a variety of tort theories, including claims that Robbie breached his fiduciary duties to Bruce and their partnership and that Mail Source wrongfully induced Robbie to breach his fiduciary duties. For these alleged wrongs, Bruce seeks monetary damages, including damages for his loss of the opportunity to profit from the prospective business opportunities that Corporate Mail lost to Mail Source.

In an effort to build his case for such damages, Bruce sought to discover information from Mail Source about its finances — specifically, its revenue and profits — between 2003 and the present. Bruce served Mail Source and Robbie with interrogatories and requests to produce documents about the finances of Mail Source, but Mail Source and Robbie failed to timely respond to these requests. When Bruce moved to compel responses, Mail Source produced some financial information — a list of its sales by customer between 2003 and 2005 — but it refused to produce all the financial information Bruce had requested. So, Bruce continued to press his motion to compel.

The court below concluded that the financial records of Mail Source are not relevant to the measure of damages and, based on this conclusion, denied the motion to compel. Damages for the loss of a prospective business opportunity must be based, the court below said, on the value that a reasonable person would have assigned to the prospective business opportunity at the time of its loss. What Mail Source actually earned from the business opportunities that it and Robbie allegedly misappropriated from Corporate Mail, the court explained, is irrelevant. Bruce appeals from the denial of his motion to compel.

As a general rule, we review the denial of a motion to compel discovery only for an abuse of discretion. Hickey v. Kostas Chiroprac tic Clinics, 259 Ga. App. 222, 223 (3) (576 SE2d 614) (2003). But in this case, our review is more appropriately governed by the “plain legal error” standard because it appears that the court below denied the motion to compel based on its assessment of the proper measure of damages and the manner in which damages properly may be proven, which are questions of law. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Before we turn to the issue at hand, however, we should make clear what we do not decide today. Although the parties vigorously dispute the question of liability, we decide nothing today about liability. Instead, we assume for the purposes of this appeal — as, it appears, the court below assumed when it denied the motion to compel — that Robbie and Mail Source are liable in tort for the loss by Corporate Mail of its prospective business opportunities. It may turn out that they have done nothing wrong and are not liable for these losses, but that is a question for another day.

Turning now to the measure of damages, Bruce argues that his damages properly can be based on the revenues, or at least the profits, that Mail Source earned from any business opportunities misappropriated from Corporate Mail. And he points to some earlier decisions of this Court that suggest that disgorgement of ill-gotten revenues or profits may be an appropriate remedy for a breach of fiduciary duty in some cases. In Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221 (520 SE2d 231) (1999), an agent breached the fiduciary duties that he owed his principal by diverting business to himself, and we sustained an award of the gross revenues that the agent earned as a result of his wrongful conduct. Id. at 224 (3) (“The gross revenue rightfully belonged to NCDS, and Jennette misappropriated it.”). In Vinson v. E. W. Buschman Co., 172 Ga. App. 306 (323 SE2d 204) (1984), we approved of a jury charge that “an unfaithful agent is not entitled to retain the profits of an enterprise operated in competition with the principal’s business.” Id. at 311 (3). And in Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863 (380 SE2d 498) (1989), which involved a breach of the fiduciary duties that the seller of a business owed to its buyer in connection with a covenant restricting the right of the seller to compete with the buyer, we said that the seller was authorized to recover “the profits of” the company through which the seller wrongfully competed with the buyer. Id. at 864-865 (1) (B). If a disgorgement remedy were appropriate, it would resolve the question with which we are presented today, inasmuch as the revenues and profits of Mail Source absolutely would be relevant to damages because they would be the very measure of damages. But these cases involve fiduciary relationships other than partnerships, and we do not need to decide today whether the disgorgement remedy appropriate in these cases would be appropriate in this one because, even if damages more properly are measured by reference to what Bruce lost, not what Mail Source gained, the revenues and profits of Mail Source still might be probative of damages.

We have addressed the misappropriation of the business opportunity of a partnership before, and we have said that, when a partner wrongfully appropriates a prospective business opportunity of his partnership to his own use or that of another, the remaining partners, who are deprived of an opportunity to profit from the misappropriated business opportunity, may recover their share of the profits that the partnership would have earned from the business opportunity. See Asgharneya, 298 Ga. App. at 697 (4) (“A partner may not dissolve a partnership to gain the benefits of the business for himself, unless he fully compensates his co-partner for his share of the prospective business opportunity.”) (citation and punctuation omitted); Arford, 199 Ga. App. at 438 (7) (“[Djamages for wrongfully excluding a partner from a partnership business opportunity should include compensation to the ousted partner for his share of the prospective business opportunity.”). Like any lost profits, a partner’s share of the profits that his partnership would have earned from a lost business opportunity “must be shown with reasonable certainty,” and “[pjrofits which are remote, or speculative, contingent or uncertain are not recoverable.” MTW Investment Co. v. Alcovy Properties, 228 Ga. App. 206, 207 (1) (a) (491 SE2d 460) (1997) (citations and punctuation omitted). That said, the rule that lost profits cannot be speculative or uncertain “relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 780 (3) (415 SE2d 516) (1992) (citation and punctuation omitted). As we have cautioned before, “[m]ere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.” Id. (citation and punctuation omitted). That difficulty in calculating precisely the damages sustained will not preclude their recovery is especially true when it is the conduct of the wrongdoer that prevents a more precise calculation. See Bigelow v. RKO Radio Pictures, 327 U. S. 251, 264-266 (66 SC 574, 90 LE 652) (1946).

If this measure of damages, rather than a disgorgement, is the more appropriate measure of damages — that is, if the measure is what Bruce lost and not what Mail Source gained — the revenues and profits earned by Mail Source from business opportunities that Corporate Mail lost to it would not be dispositive of the amount of damages Bruce might be entitled to recover. But that does not mean that the revenues and profits of Mail Source are irrelevant to the proper measure of damages. Indeed, some reasonable person might say the revenues and profits Mail Source earned from the same business opportunities could be a fair approximation of the revenues that Corporate Mail would have earned from them and are, therefore, probative of the lost revenue and profit of Corporate Mail, at least if there is some evidence that Mail Source and Corporate Mail have similar pricing structures and costs. Robbie and Mail Source would be entitled to respond, of course, that Corporate Mail could not have charged its customers the same price as Mail Source, or could not have done the same volume of work as Mail Source, or would not have earned the same profit as Mail Source, but those are all matters for a jury. At the least, the revenues earned by Mail Source might be probative of the volume of work performed by Mail Source to the extent that more revenue is earned for doing more work, something the parties do not dispute. There may be reasons in this case why such evidence ultimately might not be admitted at trial, but we are reviewing the denial of a motion to compel, not a judgment for money damages or a ruling admitting certain proof of damages at trial. It is enough to decide that the revenues and profits of Mail Source might very well have some relevance to the proper measure of damages in this case.

Decided July 12, 2011.

Bryman & Clerke, David N. Bryman, for appellant.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

OCGA § 9-11-26 (b) (1). We do not decide whether and to what extent Bruce is entitled to the precise financial information he requested in his interrogatories or the precise financial records he requested that Mail Source produce. Those things are committed to the discretion of the trial courts, and we will leave them for the court below to address on remand. But the court below erred when it concluded that the revenues and profits that Mail Source earned from business opportunities lost by Corporate Mail could not possibly be probative of the damages that Bruce may be entitled to recover and that Bruce, for this reason, cannot have any discovery of the finances of Mail Source. Accordingly, we vacate the order of June 22, 2010, denying the motion to compel, and we remand for the court below to reconsider the motion to compel in light of our opinion.

Judgment vacated and case remanded with direction.

Smith, P. J., and Dillard, J., concur.

Gary W. Bross, for appellees.

       The partners never committed their partnership agreement to writing. No one disputes, however, that an oral partnership agreement can be effective. See Asgharneya v. Hadavi, 298 Ga. App. 693, 697 (4) (680 SE2d 866) (2009); Arford v. Blalock, 199 Ga. App. 434, 437-438 (6) (405 SE2d 698) (1991).

       The parties dispute whether this conversation occurred before or after Robbie agreed to form the new company.

       Bruce also seeks other kinds of damages, but the other damages are not relevant to this appeal. We note that Bruce does not identify the specific business opportunities that he contends Corporate Mail lost to Mail Source as a result of the allegedly wrongful conduct of Robbie and Mail Source. Given his ambiguity about the specific business opportunities at issue, one might be tempted to think, after taking a quick glance at his briefs, that he contends that Mail Source itself is a lost business opportunity, or in other words, that he should have been invited to join Mail Source and is entitled to a share of the profits he would have earned as an owner of Mail Source. But we cannot understand him to actually make such a claim, inasmuch as we cannot conceive of any theory supported by the allegations and evidence in this case under which Bruce could claim an entitlement to participate in a newly created business that he was never invited to join. Instead, we understand the parties’ references to losses of prospective business opportunities to refer exclusively to the loss of opportunities for Corporate Mail to provide bulk-mail services to its customers and prospective customers.

       Bruce also asserts an unjust enrichment claim against Robbie and Mail Source, but none of the parties say much on appeal about the proper remedy for unjust enrichment. Instead, the parties focus their arguments on the damages recoverable for the loss of a prospective business opportunity, emphasizing wrongful dissolution of a partnership and breach of fiduciary duty as the theories of liability authorizing the recovery of such damages. We decide nothing, therefore, about whether disgorgement of ill-gotten gains might be an appropriate remedy for any unjust enrichment in this case.

       The Uniform Partnership Act, OCGA § 14-8-1 et seq., itself provides explicitly that disgorgement sometimes is an appropriate remedy for the misconduct of a partner. See OCGA § 14-8-21 (a) (“Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.”). We need not address today whether this disgorgement provision would apply to the misappropriation of a prospective business opportunity.

       These cases do not say whether this measure of damages is the exclusive measure of damages in a case like this one or only an alternative to disgorgement. Perhaps answering that question was not crucial to deciding those cases, just as it is not crucial to our decision today.

       If the proper measure of damages is what Corporate Mail lost, not what Mail Source gained, Bruce would have to prove these lost profits with reasonable certainty. Especially considering that Corporate Mail never made much money, if any, this requirement may be an obstacle that Bruce cannot overcome. See Kitchen v. Hart, 307 Ga. App. 145, 152-153 (2) (704 SE2d 452) (2010) (anticipated profits ordinarily are too speculative to be recovered unless the business has been established, has made profits, and there are definite, certain and reasonable data for the ascertainment of the profits); Triad Drywall, LLC v. Bldg. Materials Wholesale, Inc., 300 Ga. App. 745, 747-748 (686 SE2d 364) (2009) (company generally is required to show a “proven track record of profitability” to recover lost profits). But that is an issue not yet ripe for resolution.

       We note that the court below also said in its order that, “to calculate his damages, TBruce] would have to rely on expert opinion.” An expert witness might be able to provide better evidence of the profits, if any, that Corporate Mail lost (or the revenues and profits that Mail Source gained from any wrongful conduct), and perhaps the evidence about lost or ill-gotten profits would be so confusing that a jury would need an expert to understand it. But we are aware of no requirement of expert proof in all cases involving lost profits, and we cannot say today that an expert absolutely is required in this case. See generally Triad Drywall, 300 Ga. App. at 749 (noting that company must provide jury with “sufficiently specific guidelines” for making an accurate calculation of its lost profits, but not holding explicitly that expert is required to provide this proof); Freightliner Chattanooga, LLC v. Whitmire, 262 Ga. App. 157, 162 (1) (b) (584 SE2d 724) (2003) (lost profits proved without the use of an expert).


author: Phipps, Presiding Judge.

text:
    A11A0339.
    BRITTON v. THE STATE.
    (713 SE2d 914)
   Phipps, Presiding Judge.

Darius Byzear Britton and a co-indictee were jointly tried by a jury on charges arising from a shooting incident. Convicted of numerous offenses, Britton maintains that his motion for mistrial should have been granted. Because he has failed to show that the court abused its discretion in determining otherwise, we affirm.

The evidence showed that, shortly after 1:30 a.m. on July 17, 2004, Britton was a front passenger of a Nissan Maxima that drove alongside another car occupied by four individuals. Britton leaned out of the car window and fired a gun in the direction of the other car. The bullet(s) broke a window of the other car, but struck none of the occupants. A feud had been ongoing between the driver of the Maxima, who was Britton’s co-defendant, and two of the other car’s occupants. There was evidence also that another passenger was in the Maxima at the time of the shooting.

Regarding Britton, the jury returned guilty verdicts on eight counts of aggravated assault, eight counts of possession of a firearm during the commission of a crime (aggravated assault), and one count of criminal trespass to property. After several counts were merged, Britton was convicted of four counts of aggravated assault, four counts of possession of a firearm, and trespass.

On appeal, Britton maintains that he was entitled to a mistrial because of an error made during the final charge to the jurors. At the outset of the charge, the court advised the jurors that they were being handed copies of the jury instructions that the court would read to them; the court gave the jurors the option to follow along, or not, as the court read them. After orally giving the final charge, the court sent the jurors to deliberate with their handouts. It was later discovered, however, that the jurors had been given a previous draft of the final charge that differed from what the court had charged them. The trial court summoned counsel for the state and defense, seeking their input. Britton’s attorney responded that a mistrial was warranted, noting that deliberations had been ongoing for almost two hours. The prosecutor disagreed, asserting that the ways in which the version that had been given to the jurors varied from the oral charge were not of major significance and that the variations had not prejudiced Britton.

The trial court denied Britton’s request for mistrial, electing instead to collect the written instructions from the jurors, call the jurors back into the courtroom, and explain to them that they had erroneously been given copies of a prior version of the final charge. Upon so doing, the court noted, “I see some of you nodding.” And one juror spoke out: “[TJhere were a couple of paragraphs that we had and you didn’t do.”

The court continued, informing the jurors that “the charge that I gave to you orally was the charge of the [cjourt”; that they were to “follow the charge as I. . . gave it to you orally”; that they would be given copies of the correct version of the “charge as I had given it to you orally,” that the correct copies were to be used “as your aid to recalling the instructions,” and that they were to “begin your deliberations and consider the case with those instructions.” The jurors were provided copies of the correct final charge, and the court directed the jurors to “go back . . . and deliberate again and consider the case anew with the — based on the charge the [cjourt gave you orally and based on the correct copies, which I have now given you.” Before allowing the jurors to leave the courtroom to so engage in deliberations, the court asked: “Are there any of you who feel that you cannot follow the instructions that I have given you?” Then after noting on the record that “[ejverybody is indicating they can,” the court excused the jurors for deliberations. Britton’s renewed motion for mistrial was denied.

On appeal, Britton does not complain that there were errors in the oral charge; he does not complain that there were errors in the written instructions handed out after the jurors were recalled and given remedial instructions; and he does not complain that the written instructions provided with the remedial instructions strayed from the oral charge. Instead, he cites certain variations between the language of the initial written charge provided and the language of the oral charge. According to Britton, some of those variations amounted to “incorrect” instructions; the remaining variations were instructions that were included in the initial written charge, but not in the oral charge.

“When a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.” “Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” In this case, it was within the trial court’s discretion to decide whether a mistrial was the only corrective measure or whether any prejudicial effect of the handout error could otherwise be corrected.

Having reviewed the final charge as a whole, including the remedial instructions, and both sets of written jury charges provided to the jury, we find no abuse by the trial court in the exercise of its discretion. Britton has cited variations between the written instructions first provided and the court’s oral charge relating to mere presence, possession of a firearm during the commission of a crime (aggravated assault), and the principle that the defendant has no duty to testify. Even though the exact language differed, Britton has pointed to no substantive difference. Britton complains that the written instructions first provided covered additional impeachment methods, as well as additional factors for consideration when assessing the credibility of a trial witness, which were not included in the court’s oral charge. The trial transcript reveals, however, that except for one witness called by Britton’s co-defendant, all of the trial witnesses were those of the state; Britton, having called no witness, has not explained how the additional impeachment and credibility instructions prejudiced him. Finally, Britton complains that the written instructions first provided included a more expansive definition of party to a crime than the definition read by the court in its oral charge. He does not assert that the more expansive definition constituted an incorrect statement of law; nor does he explain how, given the evidence, he was prejudiced thereby. What is more, Britton has failed to establish that any prejudicial effect caused by the handout error was not corrected by the court’s remedial instructions and second handout to the jury.

Decided July 12, 2011.

James D. Love, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V Patterson, Assistant District Attorney, for appellee.

Given the foregoing, we conclude that the trial court did not abuse its discretion in determining that any prejudical effect could be adequately addressed by the remedial instructions, together with a correct copy of the jury charge, such that a mistrial was not the only corrective measure that would preserve Britton’s right to a fair trial. We are satisfied that “the charge as a whole [including the remedial actions taken by the court] was not likely to confuse the jury.” Consequently, Britton’s challenge to the denial of his motion for the grant of a mistrial fails.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       Four of the aggravated assault counts alleged that Britton made an assault with a firearm, a deadly weapon, by shooting in the direction of each of the four occupants; the other four counts of aggravated assault alleged that Britton made an assault, by discharging, without legal justification, a firearm from within a motor vehicle toward each of the same four persons in the other car. OCGA § 16-5-21 (a) (2), (3).

       See Fletcher v. State, 277 Ga. 795, 797 (4) (596 SE2d 132) (2004) (allowing the jury to have a written copy of the charge during deliberations is proper).

        Smith v. State, 288 Ga. 348, 350 (3) (703 SE2d 629) (2010) (citation and punctuation omitted).

        Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525) (1999) (footnote omitted).

       See Smith, supra; see generally Martin v. State, 271 Ga. 301, 306 (3) (518 SE2d 898) (1999) (noting that, where jury requests further instructions upon a particular phase of the case, trial court in its discretion may recharge them in full or only upon the point or points requested); Robinson v. State, 298 Ga. App. 37, 39 (679 SE2d 61) (2009) (the necessity, extent, and character of any supplemental instruction to the jury are matters within the trial court’s sound discretion).

       See Wilson v. State, 268 Ga. 527, 529 (3) (491 SE2d 47) (1997) (reviewing charge as a whole in assessing argument that recharge had blurred legal principles).

       See generally Massey v. State, 270 Ga. 76, 78 (4) (c) (508 SE2d 149) (1998) (“It is axiomatic that a trial court does not err in refusing to give a requested instruction in the exact language requested where the charges given in their totality substantially and adequately cover the principles contained in the requested charge.”) (citation omitted); Wade v. State, 261 Ga. App. 587, 589 (3) (583 SE2d 251) (2003).

       See Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995) (the giving of an unauthorized charge on an unavailable method of impeachment is generally harmless error, and a conviction in a criminal case will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict).

       The language cited tracked the suggested pattern jury instruction on “Principal, Failure to Prosecute; Other Involved Persons.” See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (3d & 4th eds.), § 1.42.11.

       See Litmon v. State, 186 Ga. App. 762-763 (2) (368 SE2d 530) (1988).

       See Davenport v. State, 283 Ga. 171, 172-173 (4) (656 SE2d 844) (2008) (it is not necessary in considering a charge to assume a possible adverse construction; all that is required is a charge that is sufficiently clear to be understood by jurors of ordinary understanding); see also Johns v. State, 274 Ga. 23, 25 (3) (549 SE2d 68) (2001) (recognizing a presumption that the jury follows instruction to disregard certain matter); Floyd v. State, 277 Ga. App. 166, 167-168 (626 SE2d 149) (2006) (a proper instruction on recharge may correct an improper instruction given in the original charge to the jury, where the correct instruction given on recharge explains away the defect in the previous improper charge); Weaver v. State, 178 Ga. App. 91, 92-93 (2) (341 SE2d 921) (1986) (concluding that the trial court’s remedial instructions to the jury were sufficient to protect defendant’s right to a fair trial).

       See Smith, supra. See generally Duffie v. State, 273 Ga. 314, 315-318 (2), (3) (540 SE2d 194) (2001).

        Davenport, supra at 173 (4) (citation omitted); see Madison v. State, 281 Ga. 640, 642-643 (3) (641 SE2d 789) (2007) (concluding, after reviewing the trial court’s initial charge, together with its recharge to the jury and additional direction that the jury recall the earlier instructions, that the court’s recharge did not mislead or confuse the jurors).


author: Barnes, Presiding Judge.

text:
    A11A0446.
    ASKEW v. THE STATE.
    (713 SE2d 925)
   Barnes, Presiding Judge.

A DeKalb County jury found Antavious Askew guilty of aggravated assault, and following the denial of his motion for new trial, he appeals. He enumerates as error the trial court’s grant of the State’s motion in limine to exclude evidence of the victim’s cocaine use, and the trial court’s ruling that he could not use the victim’s prior convictions for impeachment purposes. He also contends that trial counsel was ineffective. Following our review, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the victim was leaving a friend’s house in the early morning hours of November 22, 2007, when a man he later identified as Askew jumped outof a blue Trailblazer and chased him. The victim recognized the truck as belonging to Askew’s father, Antonio McMichael, who was apparently driving. Askew chased the victim until the victim fell, after which Askew began to beat him with a baton-like stick. McMichael joined Askew, and the men beat the victim for approximately 20 minutes. When the men finished beating him, the victim called police, who responded, and the victim was transported to the hospital with severe injuries, including a possible skull fracture. Although he initially told the 911 operator that he did not know who had attacked him, the victim later told police that Askew and McMichael had attacked him, and positively identified the men from a photographic lineup. Askew was charged with aggravated assault and armed robbery, and following a joint jury trial with McMichael, he was acquitted of armed robbery, but found guilty of aggravated assault. At trial, Askew maintained that the victim had wrongly identified him as the person who attacked him, and presented alibi witnesses as to his location the night of the attack.

1. Askew first contends that the trial court erred in granting the State’s motion in limine to exclude evidence of the victim’s cocaine use. Askew maintains that the evidence was relevant to dispute the victim’s identification of his attackers because the presence of cocaine in his system on the night of the attack could have affected the victim’s ability to recall the events of the attacks, in particular his identification of his attackers.

Before the start of the trial, the State requested that it be permitted to redact a notation in the victim’s medical record from the night of the attack reflecting that his urine sample showed the presence of cocaine. Askew argued that the victim’s cocaine use, “if. . .he was using cocaine that day, would be relevant to explain — as to the issue of his ability to recall facts.” The trial court granted the motion subject to reconsideration, and limited its application to only the opening statements and the examination of witnesses, but permitted “the defense to question the alleged victim outside the jury’s presence as to whether there was any cocaine usage and ... to talk to the doctor to find out what this notation means to see if it would have any relevance to the case.”

The record does not reflect that Askew questioned the victim or the treating physician about the cocaine. However, during the trial the doctor testified that the victim’s heart rate was elevated, and at the conclusion of her testimony a bench conference was held at which Askew asked that he be permitted to question the doctor about the correlation between an elevated heart rate and cocaine use. The trial court denied Askew’s request, but after adjourning for lunch, permitted him to question the doctor about the physical effects of cocaine as a proffer of the evidence for the record.

The doctor testified that the urine screening performed on the victim would not show how much cocaine the victim had in his system or when the cocaine was ingested, and that the victim’s elevated heart rate coupled with low blood pressure was more likely caused by blood loss.

Evidence of drug use is inadmissible when it is intended only to impugn a victim’s character and has no relevance to any disputed issues in the case. OCGA § 24-2-2. “Admission of evidence is a matter committed to the sound discretion of the trial court, and the trial court’s evidentiary decisions will not be disturbed on appeal absent an abuse of discretion.” (Citation and punctuation omitted.) Bozzuto v. State, 276 Ga. App. 614, 618 (2) (624 SE2d 166) (2005).

In Robinson v. State, 272 Ga. 131, 133 (3) (527 SE2d 845) (2000), our Supreme Court found that a toxicology report showing the presence of cocaine metabolites in the victim’s blood was irrelevant where there was no showing of what effect cocaine had on the victim at the time of his argument with the appellant. Id. at 133 (3). Hawes v. State, 261 Ga. 164 (4) (402 SE2d 714) (1991). Similarly, in James v. State, 270 Ga. 675, 676 (2) (513 SE2d 207) (1999), the Court held that as the defendant was unable to show in his proffer that the victim had been using marijuana close enough to the shooting to have had an influence on him at that time, the evidence of marijuana use was not relevant and was properly excluded.

Here, the cocaine was detected in a urine screening, and there was no evidence about the quantity of cocaine in the victim’s system or when it was ingested. Further, the doctor testified that the screening would provide no assistance in providing that information. Although Askew maintained that the victim’s cocaine use was relevant as to the victim’s ability to recall the events of the attack and identify his attackers, there was evidence presented that the victim suffered a significant head injury, which could also explain his ability to correctly access the identity of his attackers and his perception of the attack. The emergency room doctor testified that the paramedics had reported that the victim initially displayed an “altered mental state” which could indicate in medical terms, disorientation, unresponsiveness, lack of clarity in judgment or a decreased level of consciousness.

Thus, as the evidence as to effects of the cocaine in the victim’s body was merely speculative, the trial court did not abuse its discretion in granting the State’s motion in limine to exclude it. See Bell v. State, 280 Ga. 562, 565-566 (4) (629 SE2d 213) (2006) (evidence of postmortem toxicology report showing presence of cocaine metabolites . . . “too attenuated to warrant speculation about the effects of cocaine on the victim at the time of the shooting.”); Hawes v. State, 261 Ga. at 165 (4) (evidence that victim was under the influence of cocaine inadmissible where defendant put forth no evidence that “victim’s use of cocaine contributed in any way to behavior by the victim that might . . . have been relevant to his defense”).

2. Askew also contends that the trial court erred in ruling that he could not impeach the victim with three of the victim’s four felony convictions because the excluded convictions were not more than ten years old for purposes of OCGA § 24-9-84.1 (b).

OCGA § 24-9-84.1 (b) provides for a “time limit” to the general rule of OCGA § 24-9-84.1 (a), which addresses the admission of a prior conviction for purposes of attacking a witness’s credibility. . . . Evidence of a conviction “is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date,” unless the court finds the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. OCGA § 24-9-84.1 (b). In addition, the conviction is not admissible unless the proponent gives the adverse party advance written notice of intent to use such evidence so that the adverse party has a fair opportunity to contest its use.

Crowder v. State, 305 Ga. App. 647, 648 (1) (700 SE2d 642) (2010).

On the first day of trial, defense counsel notified the trial court that he had recently discovered that the victim had three additional convictions. He had apparently represented the victim in two of the convictions, and asked the trial court that if Askew was permitted to use the convictions to impeach the victim, that someone other than he present the documents to impeach the victim. Defense counsel stated that he wanted to apprise the trial court of the potential conflict should the evidence be admitted. The State objected to the use of three of the four convictions, believing them to be more than ten years old, but not the fourth, a 2003 conviction. The trial court held that evidence of the three older convictions was inadmissible because the convictions were more than ten years old and Askew had not provided written notice within ten days of trial. No objection was made, and Askew did not at any point argue that the convictions were less than ten years old, as he now claims.

“In light of trial counsel’s actions, [Askew] cannot now claim that the trial court erred in considering the sufficiency of the advance notice to the State for purposes of OCGA § 24-9-84.1 (b). Matters not objected to at trial cannot be raised for the first time on appeal.” (Citations and punctuation omitted.) Crowder v. State, 305 Ga. App. at 649 (1).

3. Askew also contends that trial counsel was ineffective for failing to impeach the victim with the four felony convictions. He argues that trial counsel was deficient for failing to provide the prerequisite ten-day notice, and also for failing to argue that the three contested convictions were not subject to the notice requirement. We do not agree.

In denying Askew’s motion for new trial, the trial court found that trial counsel was not deficient and also that “even if the three additional felony convictions had been admitted, there is no reasonable probability that the outcome of the trial would have been different given the defenses of mistaken identity and third-party guilt.”

To prove his claim of ineffective assistance, Askew was required to

show that counsel’s performance was deficient and that the deficiency so prejudiced [Askew] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Askew] must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. The trial court’s findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous.

Decided July 12, 2011.

Jennifer A. Trieshmann, for appellant.

R. Javoyne Hicks White, District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

(Citations omitted.) Domingues v. State, 277 Ga. 373, 374 (2) (589 SE2d 102) (2003). Failure to satisfy either prong of this test is fatal to an ineffective assistance claim, and we need not address the deficient performance issue if the defendant has not borne his burden of showing prejudice. Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).

Here, Askew has failed to carry his burden to show that, but for counsel’s failure to introduce the victim’s earlier convictions, there is a reasonable probability that the outcome of the trial would have been different. The victim was referred to as “not trustworthy” and “a thief” during the trial. His 2003 conviction for burglary was admitted and referenced repeatedly during the trial. Also, the victim testified about a dice game that he had with Askew’s father, McMichael, after which he was accused of “tricking” McMichael out of his money. Accordingly, given the jury’s awareness of the victim’s criminal propensities, no reasonable probability exists that the introduction of the additional convictions would have altered the outcome of the proceeding. Taylor v. State, 301 Ga. App. 104, 106 (686 SE2d 870) (2009).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       We affirmed McMichael’s conviction in McMichael v. State, 305 Ga. App. 876 (700 SE2d 879) (2010).

       “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”


author: Dillard, Judge.

text:
    A11A0636.
    SHAW INDUSTRIES, INC. v. SCOTT.
    (713 SE2d 917)
   Dillard, Judge.

In this discretionary appeal, employer Shaw Industries, Inc. appeals a ruling of the superior court, affirming the State Workers’ Compensation Board’s (the “Board”) award of indemnity benefits in favor of Valencia Scott. Specifically, Shaw Industries contends that the superior court erred in affirming the findings of the Board and the administrative law judge (“AU”) that Scott’s inability to continue working was caused by a fictional new injury rather than a change in condition. For the reasons noted infra, we are constrained to reverse.

At the outset, we note that “[i]n reviewing a workers’ compensation award, this Court must construe the evidence in the light most favorable to the party prevailing before the appellate division.” In addition, “[t]he findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this Court may substitute itself as a factfinding body in lieu of the State Board.” More specifically, “whether an employee’s inability to continue working is caused by a fictional new accident or by a change of condition is a question of fact for the ALJ, and such a finding of fact may not be disturbed on appeal if any evidence supports it.” Nevertheless, “erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to a de novo standard of review.”

In the case sub judice, the record demonstrates that Valencia Scott had been employed by Shaw Industries for over 14 years. On February 16, 1996, Scott was performing her work as a carpet inspector when her right foot became caught in a carpet roller. As a result, she suffered a serious injury that required partial amputation of her foot and caused her to miss approximately ten months of work. During that time period, Scott received temporary total disability (“TTD”) benefits. In January 1997, she returned to work for Shaw Industries in the company’s customer service department, which enabled her to work while sitting or standing at a desk as needed. But the partial amputation, and the prosthesis Scott was required to wear as a result, altered her gait, which in turn began causing her significant problems in both knees. Consequently, in May 1997, she underwent bilateral knee surgery.

Over the next 12 years, Scott continued working in Shaw Industries’s customer service department, but her knee problems and the pain associated with those problems became progressively worse. In March 2009, Scott’s treating physician, who had diagnosed her bilateral knee problems as being the result of chondromalacia and osteoarthritis caused by her amputation and altered gait, recommended that she cease working briefly to alleviate her knee pain. Over the course of the next several months, Scott made several attempts to return to work, but she continued to experience significant pain in her knees and, in September 2009, once again upon her physician’s recommendation, she ceased working altogether.

Thereafter, Scott sought workers’ compensation benefits. The ALJ conducted a hearing on her claim, during which Scott argued that her inability to work was the result of a fictional new injury that occurred on March 24, 2009 — the date that she was first held out of work by her physician. In contesting Scott’s claim, Shaw Industries argued that Scott’s inability to work was the result of a change in condition, and thus, her claim was barred by the applicable statute of limitation. After the hearing, the ALJ awarded benefits to Scott, finding that Scott had sustained a fictional new injury. Shaw Industries appealed to the full Board, which affirmed and adopted the ALJ’s award. The company then appealed the decision to the superior court, which also affirmed the award. This discretionary appeal follows.

In its sole enumeration of error, Shaw Industries contends that the ALJ erred in ruling that Scott’s disability resulted from a fictional new injury, as opposed to a change in condition, and that Scott’s claim for TTD benefits was thus not barred by the applicable statute of limitation. We agree that the ALJ erred, and therefore, we are constrained to reverse the award of benefits, as well as the subsequent orders of the Board and the superior court affirming that award.

In Central State Hospital v. James, this Court distinguished between those disabilities resulting from a change in condition and those resulting from a new accident. Specifically, we held that

[w]hen a claimant sustains an injury, is awarded compensation, returns to his normal and ordinary job duties, but then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties, his condition gradually deteriorates to where he cannot continue to perform his ordinary work, such facts constitute a change in condition and not a new accident. On the other hand, when a claimant is injured on the job but continues, without an agreement or award, to perform the duties of his employment until forced to cease work because of a gradual worsening of his condition that is at least partly attributable to his physical activity in continuing to work, such facts constitute a new accident. A new accident may result either from a gradual worsening of a pre-existing injury due to aggravation by work duties or from the occurrence of a specific job-related incident.

Decided July 12, 2011

Indeed, “a necessary factual predicate to a determination that a change in condition, rather than a new injury (or new accident), has occurred is that there has previously been an award (or equivalent) for the injury whose worsening has produced the present disability.”

In the order awarding Scott TTD benefits, the ALJ found that Scott’s knee problems were “caused by [her] altered gait that has occurred as a result of the partial right foot amputation and knee injury and performance of her duties at work which aggravated her injury.” But the ALJ, nevertheless, then found that Scott suffered a new injury and, thus, that an award of benefits was not barred by the statute of limitation. However, it is undisputed that Scott sustained her initial injury while working for Shaw Industries, was awarded workers’ compensation benefits, and, after ten months, resumed her employment (albeit in a different position) for the next 12 years. Thus, the progressive aggravation of Scott’s injuries, which was caused by the performance of her work duties and which ultimately resulted in her inability to work, can only be characterized as a change in condition. The ALJ, therefore, erred as a matter of law in finding that Scott suffered a fictional new injury when she ceased working for Shaw Industries in March 2009, and that her claim was not barred by the statute of limitation. Accordingly, we are constrained to reverse the ALJ’s order awarding Scott workers’ compensation benefits, as well as the subsequent orders of the Board and the superior court affirming that award.

Judgment reversed.

Smith, P. J., and Mikell, J., concur.

Speed & Seta, J. Wallace Speed, Marion G. Waters TV, for appellant.

Gammon, Anderson & McFall, Bryan C. Villarreal, for appellee.

        Laurens County Bd. of Educ. v. Dewberry, 296 Ga. App. 204, 205-06 (674 SE2d 73) (2009) (footnote omitted).

        Id. at 206 (footnote omitted).

        Id. (footnote omitted).

        Trax-Fax, Inc. v. Hobba, 277 Ga. App. 464, 464 (627 SE2d 90) (2006) (citation and punctuation omitted).

       OCGA § 34-9-104 (b) (providing that “any party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided . . . that at the time of application not more than two years have elapsed since the date the last payment of income benefits . . . was actually made”).

       147 Ga. App. 308, 309-10 (1) (248 SE2d 678) (1978).

        Trucks, Inc. v. Trowell, 302 Ga. App. 488, 491 (1) (690 SE2d 880) (2010) (quoting Cypress Cos. v. Brown, 246 Ga. App. 804, 806-07 (542 SE2d 544) (2000)); see also Dewberry, 296 Ga. App. at 206; Northbrook Property & Cas. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988).

        Dewberry, 296 Ga. App. at 206 (punctuation and footnote omitted); see OCGA § 34-9-104 (a) (1) (defining “change in condition” as “a change in the wage-earning capacity, physical condition, or status of an employee or other beneficiary covered by this chapter, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise” (emphasis supplied)).

        See, e.g., Oconee Area Home Care Servs., Inc. v. Burton, 275 Ga. App. 784, 786-87 (621 SE2d 859) (2005) (holding that claimant’s disability constituted a change in condition in light of the fact that claimant received benefits for his initial injury, returned to work, but injury gradually worsened and forced him to cease working); James, 147 Ga. App. at 311 (3) (same).


author: Mikell, Judge.

text:
    A11A0742.
    LeROY VILLAGE GREEN RESIDENTIAL HEALTH CARE FACILITY, INC v. DOWNS et al.
    (713 SE2d 728)
   Mikell, Judge.

In this action to domesticate and enforce a New York judgment for money damages, LeRoy Village Green Residential Health Care Facility, Inc. (“LeRoy Village”), appeals the trial court’s grant of a motion to set aside its prior order domesticating a New York judgment. For the reasons set forth below, we reverse.

The record shows that LeRoy Village filed a lawsuit against Terri L. Downs and Jimmie R. Downs, Jr. (“appellees”), in the Supreme Court of Livingston County, New York, alleging that appellees engaged in a series of fraudulent conveyances rendering Terri Downs’ grandmother, a resident at LeRoy Village, unable to pay for her nursing care. A summons and complaint was personally served upon appellees in Georgia on February 24, 2009. Appellees filed a pro se response to the complaint with the Livingston County Clerk on March 23, 2009. On April 1, 2009, LeRoy Village obtained a default judgment against appellees. On or about May 8, 2009, the appellees sent LeRoy Village’s counsel an unverified copy of their answer. LeRoy Village then sent a letter to appellees that it would not voluntarily vacate its judgment against them absent a meritorious defense. LeRoy Village then filed its petition to domesticate the foreign judgment in the Liberty County Superior Court in Georgia, where appellees resided. The trial court granted the motion to domesticate the foreign judgment on March 25, 2010. On April 7, 2010, appellees filed a motion to set aside LeRoy Village’s judgment. The trial court granted appellees’ motion in an order dated October 7, 2010.

LeRoy Village argues that the trial court’s grant of the motion to set aside was error because it held that Georgia law governed the filing of appellees’ answer in the New York case. We agree and reverse.

Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by courts of this state. To be enforced in Georgia, the foreign judgment must first be domesticated pursuant to the Uniform Enforcement of Foreign Judgments Law (“UEFJL”)- In Georgia, “the proper method for attacking a foreign judgment filed in Georgia under the [UEFJL] is a motion to set aside under OCGA § 9-11-60 (d).” The Georgia court must then apply the foreign jurisdiction’s laws to evaluate whether the default judgment was proper in order to determine whether one of the grounds set forth in OCGA § 9-11-60 (d) applies. A motion to set aside will be granted if the appellees show that the judgment is defective due to lack of jurisdiction over the person or subject matter; due to fraud, accident or mistake; or due to a nonamendable defect on the face of the pleading. “In cases involving a default judgment, this type of defect arises where the record shows on its face that the default was entered on an improper basis.”

In the present case, the trial court held that the default judgment was improper because appellees had timely filed their answer under Georgia law. In its opinion, the trial court cited Kaylor v. Turner for the assertion that the UEFJL “creates a conflict of laws rule applicable to foreign judgments so that the trial court must. . . apply Georgia law as if the foreign judgment had been rendered by the forum court.” In reliance upon this case, the trial court held that Georgia procedural law should be applied in determining whether or not appellees properly served their answer in the New York action. The trial court applied Georgia procedural law to the New York judgment and held that because appellees filed a response with the Livingston County, New York Clerk’s Office within thirty days of service of the complaint, the appellees had complied with OCGA §§ 9-11-5 and 9-11-12, implying that appellees were not in default and the judgment could not be enforced against them in Georgia. However, this interpretation of Kaylor is in error. In Kaylor, this Court was citing to OCGA § 9-12-132, which sets forth the mechanism for challenging a foreign judgment under the UEFJL but does not address the procedure for obtaining a valid foreign judgment.

We hold that the Georgia trial court in this case was required to accord the foreign judgment full faith and credit if it was “proper under the law ... in which the judgment was rendered.” A valid foreign judgment will be entered and enforceable in Georgia “even though such a judgment could not have been obtained in [Georgia] courts.” Accordingly, we must apply New York law to the filing of appellees’ answer.

Applying New York procedural law, we find that appellees were in default because they did not timely serve their answer upon counsel. Appellees were personally served with the New York summons and complaint on February 24, 2009. Although appellees filed an answer with the Livingston County Clerk’s Office within thirty days, they did not comply with the applicable New York procedural laws requiring them to serve the answer directly on LeRoy Village’s counsel. Therefore, we find that the New York court properly entered a default judgment against appellees and that the trial court’s grant of the motion to set aside the judgment was in error.

Judgment reversed.

Smith, P. J., and Miller, P. J., concur.

Decided July 12, 2011.

Batch & Bingham, Marlie A. McDonnell, Christopher S. Anulewicz, for appellant.

Harvey & Hendrix, Mark A. Hendrix, for appellee.

        Chrison v. H & H Interiors, Inc., 232 Ga. App. 45, 49 (1) (500 SE2d 41) (1998).

        NationsBank, N.A. v. Gibbons, 226 Ga. App. 610, 611-612 (487 SE2d 417) (1997).

       (Citation and punctuation omitted.) Noaha, LLC v. Vista Antiques &c., 306 Ga. App. 323, 326 (1) (702 SE2d 660) (2010).

       See, e.g., Aqua Sun Investments v. Kendrick, 240 Ga. App. 671, 673 (2) (524 SE2d 519) (1999) (Court applied Florida law to OCGA § 9-11-60 (d) motion.).

       OCGA § 9-11-60.

       (Punctuation and footnote omitted.) Hiner Transport, Inc. v. Jeter, 293 Ga. App. 704, 705 (667 SE2d 919) (2008) (Trial court’s award of default judgment based on defendant’s failure to file an answer in response to amended complaint was in error, and should have been set aside).

       210 Ga. App. 2 (435 SE2d 233) (1993).

       Id. at 4 (2).

       Under the Georgia Civil Practice Act, a defendant’s answer must be in writing, served upon opposing counsel and filed with the clerk’s office within thirty days after service upon the defendant of the summons and complaint. See OCGA §§ 9-11-5 and 9-11-12 (a).

       OCGA § 9-12-132 (“. . . A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner”).

       (Footnote omitted.) Saye v. King, 255 Ga. App. 276, 277 (564 SE2d 859) (2002) (Georgia trial court had to accord foreign judgment full faith and credit if personal jurisdiction over judgment debtor was proper under the law of the state in which judgment was rendered. Georgia case law was not applicable in determining personal jurisdiction.). Accord P.G.L. & C.C. Employees Credit Union v. Kimball, 221 Ga. App. 108, 109 (470 SE2d 501) (1996) (By the very nature of an action for domestication of a foreign judgment, all parties and the court have notice that foreign law will be relied upon).

       (Citation and punctuation omitted.) Boyer v. Korsunky, Frank, Erickson Architects, Inc., 191 Ga. App. 549, 550 (382 SE2d 362) (1989) (Foreign consent judgment was entitled to full faith and credit, even if provision in consent judgment was penalty in clear violation of public policy of Georgia). See also Chrison, supra at 49 (1) (Tennessee law, rather than Georgia law, controlled determination of whether dismissal of Tennessee action for failure to prosecute was adjudication on the merits, for res judicata purposes).

       New York’s Civil Practice Law and Rules (“CPLR”) governs civil actions in New York state courts. New York law requires that a defendant respond to a complaint by serving an answer on plaintiffs counsel, and not by filing it with the clerk’s office. See CPLR §§ 320 (a) and 2103 (b); Kraus Bros. v. L.V. Hoffman & Co., 470 N.Y.S.2d 1, 3 (99 A.D.2d 401) (1984) (defendant’s default based on failure to timely serve answer on plaintiffs counsel) and Ryan v. Rocky Graziano Foods, Inc., 347 N.Y.S.2d 984, 985 (75 Misc.2d 415) (1973) (There is no statutory requirement that an answer be filed with the clerk’s office).

       See Kraus Bros., supra.


author: McFadden, Judge.

text:
    A11A0040.
    GAWLAK v. THE STATE.
    (714 SE2d 354)
   McFadden, Judge.

After a jury trial, Albert Gawlak was convicted of aggravated sexual battery, cruelty to children in the first degree and two counts of child molestation. He appeals, claiming that the trial court erred in refusing to allow him to testify about certain hearsay statements and that his trial counsel was ineffective. Because Gawlak did not perfect the record with a sufficient proffer of the excluded testimony, we cannot reach the merits of his first claim. The ineffective assistance claim is without merit since Gawlak has not shown that trial counsel’s performance was deficient. Therefore, we affirm.

1. As Gawlak notes, his defense at trial was that the victim, his three-year-old daughter, was in fact molested, not by himself, but by another man, Andy Burt. Gawlak contends that the trial court erred in granting the state’s motion in limine to exclude his own testimony about hearsay statements allegedly made to him by Burt’s former wife, concerning statements purportedly made by Burt to her during her marriage to Burt.

Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort that both courts can know whether the witnesses really exist and that the evidence really exists. The record must show what questions were asked or what answers were expected from the witnesses. In the absence of this information, the assignment of error is so incomplete as to preclude its consideration by this court.

(Citations and punctuation omitted.) French v. State, 288 Ga. App. 775, 777 (3) (655 SE2d 224) (2007).

At the motion in limine hearing, Gawlak failed to make a proffer of a definite sort as to the specific questions that would have been asked or the answers that would have been expected concerning the alleged out-of-court statements by Burt and his ex-wife. Even after the trial judge said at the hearing, “I’m not privy to the actual statements. I don’t know what was said[,]” Gawlak still did not make a detailed proffer of the purported hearsay statements and anticipated testimony. Gawlak’s reliance on Boivin v. State, 298 Ga. App. 411, 413-414 (2) (680 SE2d 415) (2009), in which we held that testimony about certain out-of-court statements was not inadmissible hearsay because it was offered to explain the defendant’s conduct, is misplaced because the defendant in that case, unlike Gawlak, made a detailed proffer of the anticipated testimony before the trial court excluded it. Id. at 413 (2).

In support of his motion for new trial, Gawlak testified about specific statements Burt’s former wife had made in his presence. “However, [Gawlak] should have offered that evidence at trial, [during the motion in limine hearing], so that the trial judge could have conducted the analysis required[.]” (Citations and punctuation omitted.) Johnson v. State, 246 Ga. App. 239, 242 (4) (539 SE2d 914) (2000). Because Gawlak failed to make a sufficient proffer of the excluded hearsay evidence at trial, there is nothing for us to consider. See Holder v. State, 242 Ga. App. 479, 482 (5) (529 SE2d 907) (2000) (no proffer after ruling); Dent v. State, 220 Ga. App. 147, 149 (3) (469 SE2d 311) (1996) (defendant failed to make adequate proffer after state’s hearsay objection was sustained).

2. Gawlak claims that his trial counsel was ineffective in (a) failing to present expert testimony, (b) failing to object to testimony that bolstered the victim’s credibility and (c) failing to object to the state’s closing argument that all the experts who testified at trial agreed that the victim was molested by Gawlak.

To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Further, [the defendant] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous.

(Citations and punctuation omitted.) Vaughn v. State, 307 Ga. App. 754, 758 (4) (706 SE2d 137) (2011).

(a) Gawlak contends that his trial counsel should have presented expert testimony pursuant to both Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998), which authorizes expert testimony about child interviewing techniques, and Hall v. State, 201 Ga. App. 626 (411 SE2d 777) (1991), which authorizes expert testimony about the typical behavior of molested children. These contentions are without merit. Barlow and Hall hold that such expert testimony is authorized, not that it must be admitted in every case. See Wade v. State, 305 Ga. App. 382, 386 (2) (c), n. 4 (700 SE2d 827) (2010) (physical precedent only); Cupe v. State, 253 Ga. App. 851, 857 (3) (e) (560 SE2d 700) (2002).

Trial counsel considered and investigated the possibility of presenting expert testimony pursuant to Barlow, but ultimately decided against it. At the motion for new trial hearing, Gawlak’s trial attorney testified that he believed he could deal with the interview techniques issue on cross-examination of the expert witnesses who had interviewed the child victim. And at trial, the attorney did in fact extensively cross-examine both of those witnesses about their interviewing techniques.

The decision of how to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony, to rely upon cross-examination, to forego cross-examination and/or to forego development of certain expert opinion, is a matter of trial strategy which, if reasonable, cannot be the basis of a successful ineffective assistance of counsel claim. [Cits.]

Thomas v. State, 284 Ga. 647, 650 (3) (b) (670 SE2d 421) (2008). Here, trial counsel’s decision to forego presentation of counter expert testimony and to rely instead on cross-examination to address the interviewing techniques of the state’s witnesses was a matter of trial strategy, “and [Gawlak] did not establish that [this] tactical decision was unreasonable.” Phillips v. State, 285 Ga. 213, 223 (5) (i) (675 SE2d 1) (2009). Although Gawlak’s appellate counsel might have made a different tactical decision, effectiveness of trial counsel is not evaluated by hindsight or by what present counsel would have done. Smallwood v. State, 296 Ga. App. 16, 25 (4) (e) (673 SE2d 537) (2009). Accordingly, the trial court did not clearly err in concluding that trial counsel’s decision not to call a Barlow expert was a reasonable strategy that does not amount to ineffective assistance. See Towry v. State, 304 Ga. App. 139, 147 (2) (f) (695 SE2d 683) (2010) (decision not to call expert in child interviewing techniques was reasonable trial strategy).

Gawlak also argues that his lawyer should have presented expert testimony pursuant to Hall showing that his daughter’s behavior was inconsistent with that of a child who had been sexually abused. Trial counsel considered and investigated this possibility. But this type of expert testimony would have been inconsistent with counsel’s defense theory that the child was in fact sexually abused by someone other than Gawlak. Accordingly, “[Gawlak] has failed to show that trial counsel’s strategic decision in this regard was an unreasonable one no competent attorney would have made under similar circumstances.” (Citations and punctuation omitted.) Davis v. State, 286 Ga. 74, 78 (3) (686 SE2d 249) (2009) (no ineffective assistance where counsel did not present expert testimony that would have been inconsistent with defense theory).

(b) Gawlak argues that trial counsel was ineffective in failing to object to testimony of several witnesses who allegedly bolstered the victim’s credibility. Gawlak has not indicated where in the transcript of the new trial hearing he asked trial counsel about this matter. Although it is not the function of this court to cull the record on behalf of a party in search of instances of error, Mathis v. State, 299 Ga. App. 831, 835 (1) (b), n. 15 (684 SE2d 6) (2009), we have reviewed trial counsel’s testimony at the new trial hearing and have found no testimony about any of his decisions not to object to the testimony in issue. Gawlak’s “failure to ask trial counsel about this matter at the new-trial hearing means that we must presume counsel was acting strategically, thereby vitiating any ineffective assistance claim.” (Citations and punctuation omitted.) Jones v. State, 304 Ga. App. 109, 114 (2) (b) (695 SE2d 665) (2010). See also Allen v. State, 299 Ga. App. 201, 204 (1) (b) (683 SE2d 343) (2009) (any decision not to object is presumed to be a strategic one that does not amount to ineffective assistance where defendant failed to question counsel about it at new trial hearing).

(c) Gawlak contends that trial counsel was ineffective in failing to object to the state’s closing argument that all of the experts who testified at trial agreed that the victim had been molested by Gawlak. This contention is not supported by the record; the state did not make such an argument. Rather, the prosecutor argued that the experts agreed that the child had been molested, and that a videotape, in which the child accused Burt, had been coached. “As a general rule, prosecutors are granted wide latitude in conducting closing argument. . . . This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence.” (Citation and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 637 (1) (d) (ii) (667 SE2d 899) (2008). Contrary to Gawlak’s contention, the argument made by the prosecutor was a reasonable inference from the evidence and fell well within the wide latitude allowed for closing argument. Because the prosecutor’s argument was permissible, “trial counsel’s failure to object to it cannot serve as the basis for an ineffective assistance claim in this instance.” (Footnote omitted.) Hill v. State, 290 Ga. App. 140, 147 (5) (h) (658 SE2d 863) (2008).

Decided June 21, 2011

Reconsideration denied July 13, 2011

Peters, Rubin & Sheffield, Douglas N. Peters, Jason B. Sheffield, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Judgment affirmed.

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