text:
    A15A1278.
    BEST BUY CO., INC. v. McKINNEY.
    (778 SE2d 51)
   BARNES, Presiding Judge.

This appeal arises from a dispute over a workers’ compensation subrogation lien between an employer, Appellant Best Buy Co., Inc., and its former employee, Appellee Christopher McKinney. At issue is whether the trial court erred in denying Best Buy’s motion to enforce its subrogation lien against a settlement reached between McKinney and certain third-party tortfeasors. Discerning no error, we affirm.

The record reflects that in January 2011, McKinney fell off a forklift during the course of his employment with Best Buy. As a result of the fall, McKinney suffered several facial bone fractures and brain damage. McKinney underwent multiple surgeries and received facial implants, and his face is now permanently disfigured and he experiences ongoing cognitive problems caused by his traumatic brain injury. Because of McKinney’s injuries sustained from the fall, Best Buy has paid and continues to pay workers’ compensation benefits to McKinney.

In January 2013, McKinney filed a negligence and strict liability suit in the State Court of DeKalb County against several defendants involved in the manufacture and maintenance of the forklift from which he fell (the “tort defendants”). Pursuant to OCGA § 34-9-11.1 (b), Best Buy moved to intervene in the suit to protect its right to a workers’ compensation subrogation lien against any recovery obtained by McKinney from the tort defendants, and the trial court ultimately granted the motion to intervene.

In May 2014, McKinney and the tort defendants attended mediation and settled the case shortly thereafter. In June 2014, McKinney dismissed with prejudice his suit against the tort defendants in light of the settlement.

When McKinney dismissed his suit against the tort defendants, Best Buy filed its motion to enforce its lien against the proceeds of the settlement and requested that the trial court conduct an evidentiary hearing to address the motion. Best Buy argued that it was entitled to an evidentiary hearing so that it could present evidence that McKinney had been “fully and completely compensated” for all of his economic and noneconomic losses incurred as a result of his injuries, a statutory prerequisite for enforcement of a lien under OCGA § 34-9-11.1 (b).

The trial court granted Best Buy’s request for an evidentiary hearing to determine whether McKinney had been fully and completely compensated, and thus whether Best Buy was entitled to recover under its subrogation lien. At the hearing held in September 2014, Best Buy presented the testimony of two witnesses. The first witness was the general manager of the Best Buy store where McKinney had worked. She testified that, as of September 4, 2014, McKinney had received $173,679.49 in workers’ compensation benefits, which included $162,753.08 in medical benefits and $10,926.41 in income benefits. The second witness was a lawyer who was a partner in an Atlanta law firm who had experience in litigation and mediation. The lawyer sought to demonstrate that McKinney had been fully and completely compensated for his losses by comparing his case to that of other reported civil tort cases involving plaintiffs who suffered head injuries.

After the lawyer testified, Best Buy rested its case. McKinney did not present any evidence, other than the settlement agreement that he had reached with the tort defendants and a settlement statement prepared by his counsel, both of which were filed under seal.

The trial court heard argument from the parties and took the matter under advisement, but the court noted from the bench that it was not persuaded by the lawyer’s testimony comparing McKinney’s case to other cases. The trial court thereafter entered a written order in which it denied Best Buy’s motion to enforce its subrogation lien, finding that Best Buy had failed to carry its burden of proving that McKinney had been fully and completely compensated for his economic and noneconomic losses resulting from his injuries.

1. Best Buy contends that the trial court erred in finding that it failed to prove that McKinney had been fully and completely compensated. According to Best Buy, the evidence demanded a finding that McKinney had been fully and completely compensated, given the testimony of the lawyer at the hearing and the lack of evidence presented by McKinney. We are unpersuaded.

Under the Workers’Compensation Act (the “Act”), OCGA § 34-9-1 et seq., if an employer pays workers’ compensation benefits to an employee who was injured while acting in the course and scope of his employment, and the employee sues a third party for causing the injuries, the employer can intervene in the suit and seek to enforce a subrogation lien against any recovery obtained by the employee from the third party. OCGA § 34-9-11.1 (b). A “recovery” to which the lien can attach includes the proceeds of any settlement between the employee and third party. Ga. Elec. Membership Corp. v. Garnto, 266 Ga. App. 452, 453 (597 SE2d 527) (2004). But the lien is limited

to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under [the Act] and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under [the Act] and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

(Emphasis supplied.) OCGA § 34-9-11.1 (b). In other words, a precondition to the enforcement of the lien is that the employee have been fully and completely compensated for his losses, a determination that “is made by comparing the sum of the workers’ compensation benefits paid by the [employer] and the amount of the employee’s recovery in the third-party action, to all economic and noneconomic losses caused by the injury.” Ga. Elec. Membership Corp., 266 Ga. App. at 453.

The employer has the burden of proving that the injured employee has been fully and completely compensated for his economic and noneconomic losses, and whether the employer has carried that burden is a question for the trial court. Ga. Elec. Membership Corp., 266 Ga. App. at 454; Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 780 (1) (542 SE2d 171) (2000). On appeal, we defer to the trial court’s determination as to whether there has been full and complete compensation unless clearly erroneous. Ga. Elec. Membership Corp., 266 Ga. App. at 454; Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 872-873 (2) (570 SE2d 60) (2002).

In deciding whether an employee has been fully and completely compensated, the trial court should not “take into account the employee’s contributory/comparative negligence or assumption of the risk.” Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 196 (518 SE2d 194) (1999). See Canal Ins. Co., 256 Ga. App. at 873 (2). Furthermore, because a subrogation lien “is available only against recovery for economic losses,” a trial court cannot enforce the lien against the portion of the employee’s recovery that was meant to compensate him for his noneconomic losses, i.e., his pain and suffering. Anthem Cas. Ins. Co., 246 Ga. App. at 780 (1). See Canal Ins. Co., 256 Ga. App. at 873 (2). Hence, we have held that if the trial court is unable to determine what portion of the employee’s recovery against the third party was meant to compensate him for his economic losses versus his noneconomic losses, the court cannot enforce the lien. See City of Warner Robins v. Baker, 255 Ga. App. 601, 604-605 (3) (565 SE2d 919) (2002); Anthem Cas. Ins. Co., 246 Ga. App. at 780 (1).

Guided by these principles, we turn to the record in the present case. As previously noted, Best Buy relied upon the lawyer’s testimony at the hearing to demonstrate that McKinney had been fully and completely compensated. The lawyer was a certified mediator and had experience handling civil litigation and workers’ compensation cases in the metropolitan Atlanta area, including DeKalb County. The lawyer reviewed the settlement agreement reached between McKinney and the tort defendants, and he compared McKinney’s total recovery in workers’ compensation benefits and settlement proceeds to the jury verdicts obtained in four other reported civil tort cases involving plaintiffs who suffered head injuries. One of the four cases involved a domestic violence assault, while the other three involved motor vehicle accidents. Based on the damages awarded by the jury in those four cases, the lawyer concluded that McKinney’s total recovery in workers’ compensation benefits and settlement proceeds exceeded the amount he likely would have been awarded by a jury.

The lawyer also conducted research into McKinney’s employment history. According to the lawyer, McKinney had continued to serve as an assistant high school football coach and then had held coaching positions with several arena football teams after falling from the forklift.

Based on his research into the damages awarded in the other four civil tort cases and McKinney’s career trajectory after sustaining his injuries, the lawyer opined that McKinney had been fully and completely compensated for his economic and noneconomic losses by the workers’ compensation benefits and settlement proceeds he had recovered.

On cross-examination, however, the lawyer conceded that in valuing a case in his own litigation practice, he would not have simply compared the case to the damages awarded by juries in other reported cases,- but would have personally observed the plaintiff testifying in his deposition, reviewed all the depositions and documents that were material to the case, and considered the quality of opposing counsel. The lawyer acknowledged that he had never seen McKinney or interviewed him, had not reviewed McKinney’s deposition in the third-party tort case or his medical records, and had not read the depositions of the other witnesses in the case or spoken to any of the witnesses to McKinney’s injuries.

With respect to the other four cases he had identified, the lawyer conceded that he did not know the extent of the traumatic brain injuries sustained by the plaintiffs in those cases and had not compared the level of disfigurement between McKinney and those plaintiffs. Indeed, the lawyer had never seen photographs of the plaintiffs in the other four cases and thus did not know to what extent they were disfigured by their injuries. Nor did the lawyer know whether or to what extent the jury awards in the four cases were reduced because of contributory or comparative negligence of those plaintiffs. Additionally, the lawyer did not evaluate the quality of the attorneys representing the parties in those four cases.

With respect to McKinney’s football coaching career after sustaining his injuries, the lawyer admitted that he did not know how much McKinney had earned or continued to earn from coaching and had not spoken with any of his co-workers or family. The lawyer also acknowledged that he had not reviewed or considered any evidence of McKinney’s lost wages. Rather, the only wage information he considered in the case was a report showing the workers’ compensation income benefits McKinney had received. The lawyer further noted that while some portion of the settlement proceeds recovered by McKinney would have been for his pain and suffering rather than lost wages, he did not know what portion of the settlement was for pain and suffering, given that the settlement document did not difierentiate between the proceeds meant to compensate for economic losses versus those meant to compensate for noneconomic losses.

After the close of evidence at the hearing, the trial court noted that it “wasn’t really impressed” by the lawyer’s analysis and testimony. The court pointed out that the lawyer had not read McKinney’s deposition and was unaware of the extent of McKinney’s injuries or his long-term prognosis, making comparison of his case to the other four cases identified by the lawyer difficult “because cognitive issues can be very different among different plaintiffs.”

The trial court subsequently entered a written order denying Best Buy’s motion to enforce its subrogation lien. In its order, the court found that Best Buy had failed to meet its burden of proving that McKinney had been fully and completely compensated for his economic and noneconomic losses, noting that the lawyer had acknowledged at the hearing that he did not know the details of McKinney’s injuries or of the plaintiffs’ injuries in the four other cases he had identified. The trial court further found that Best Buy could not enforce its lien because Best Buy did not show what portion of the settlement proceeds recovered by McKinney was intended to compensate him for his noneconomic losses, i.e., his pain and suffering.

The trial court’s conclusion that Best Buy did not meet its burden of showing that McKinney had been fully and completely compensated is supported by the record. In light of the cross-examination of the lawyer detailed above, the trial court was entitled to find that the lawyer had failed to gather all of the essential factual information necessary for a valid comparison between McKinney’s case and the other four civil tort cases that he had identified, and thus was entitled to conclude that the lawyer’s evaluation was too speculative to be credible. The trial court also was authorized to find that the lawyer’s evaluation of McKinney’s career trajectory carried little weight because he did not gather essential information about McKinney’s wages. In light of these deficiencies in the lawyer’s testimony, some evidence supported the trial court’s finding that Best Buy did not meet its burden of proving full and complete compensation. See CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236, 241 (1) (564 SE2d 836) (2002) (affirming trial court’s finding that insurer failed to meet burden of showing full and complete compensation, where there was evidence that insurer’s experts failed to interview the employee and gather other factual information that was “essential to an accurate determination of [the employee’s] losses”). See generally Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 340-341 (3) (535 SE2d 511) (2000) (trial court’s factual determination affirmed because some evidence showed that employee was not fully and completely compensated).

Additionally, the trial court was entitled to find that Best Buy had failed to prove full and complete compensation, given that Best Buy was unable to show what portion of the settlement proceeds recovered by McKinney was for economic losses versus noneconomic losses. The settlement document itself did not apportion the proceeds between economic and noneconomic losses. And while Best Buy presented evidence of the amount of workers’ compensation benefits received by McKinney, “we cannot simply assume that [the] benefits paid to [him] are equal to his economic losses,” given that lost wages are not fully covered by income benefits paid under the Act. Ga. Elec. Membership Corp., 266 Ga. App. at 454-455. Nor did Best Buy specifically address McKinney’s noneconomic losses, and, in fact, the lawyer witness conceded that he was unable to differentiate between the economic and noneconomic damages awarded as part of the settlement. Best Buy’s inability to differentiate between McKinney’s economic and noneconomic losses is fatal to its effort to enforce its lien. See Paschall Truck Lines v. Kirkland, 287 Ga. App. 497, 499 (651 SE2d 804) (2007) (employer unable to prove that employee had been fully and completely compensated, given that settlement agreement between employee and third party did not identify which portion of the proceeds was for economic versus noneconomic losses, and the employer did not come forward with any other evidence to address the issue). See also Canal Ins. Co., 256 Ga. App. at 873 (2); City of Warner Robins, 255 Ga. App. at 604 (3).

For these combined reasons, the trial court’s finding that Best Buy was unsuccessful in proving that McKinney had been fully and completely compensated for his economic and noneconomic losses was not clearly erroneous. The trial court therefore properly denied Best Buy’s request to enforce its lien against the settlement proceeds recovered by McKinney.

2. Best Buy further contends that the trial court erred in finding that it failed to prove that McKinney had been fully and completely compensated because the court relied upon “erroneous law.” Best Buy points out that in the trial court’s order denying the motion to enforce the subrogation lien, the court quoted the following language that appears in several Georgia cases (hereinafter, the “language at issue”):

[W]hen the employee negotiates a settlement of his claim against the tortfeasor and the settlement is a lump sum, a reviewing court cannot determine from the settlement documents what portion of the settlement was allocated to economic losses and what portion was meant to compensate for noneconomic losses. The result is that the lien cannot be enforced, because full and complete compensation cannot be shown.

Paschall Truck Lines, 287 Ga. App. at 499, quoting City of Warner Robins, 255 Ga. App. at 604-605 (3). According to Best Buy, the language at issue was undermined and limited by our Court in the recent case of SunTrust Bank v. Travelers Property Cas. Co. of America, 321 Ga. App. 538, 542-546 (1) (b) (740 SE2d 824) (2013) (physical precedent only), and, as a result, the trial court erred in relying upon that language in its order. We are unpersuaded for several reasons.

First, two of the three judges in SunTrust Bank concurred in judgment only. 321 Ga. App. at 547.The opinion thus decided only the issues presented in that case and is not binding precedent of this Court. See Court of Appeals Rule 33 (a).

Second, the opinion in SunTrust Bank simply pointed out that cases that have quoted the language at issue do not prohibit a trial court — in the circumstance where the employee has reached a settlement with a third party without the input or consent of the employer — from conducting an evidentiary hearing where the employer is allowed an opportunity to prove that the employee was fully and completely compensated for his losses. 321 Ga. App. at 545-546 (1). And the trial court in the present case clearly reached the same conclusion because it conducted an evidentiary hearing where Best Buy was afforded an opportunity to prove that McKinney was fully and completely compensated.

Third and finally, Best Buy’s argument is foreclosed by Austell HealthCare v. Scott, 308 Ga. App. 393, 395-396 (1) (707 SE2d 599) (2011), where the employer and its insurer similarly complained about the language at issue appearing in the trial court’s order declining to enforce their subrogation lien. This Court stated:

[The employer and insurer’s] argument that the trial court erroneously held that they “cannot” show that [the employee] was fully compensated is unavailing.... In order to prevail on their argument to this Court that the trial court erred in extinguishing their lien, [they] must come forward with a proffer of sufficient evidence to show that [the employee] was fully compensated and that the trial court refused to consider this evidence. They have done neither. Accordingly, there is nothing before us to show that the trial court’s order extinguishing the lien was not proper. This enumeration of error is without merit.

Decided September 28, 2015.

Eraclides, Gelman, Hall, Indek, Goodman & Waters, M. George Waters, LeRyan P. Lambert, for appellant.

Warshauer Law Group, Michael J. Warshauer, Trent S. Shuping, for appellee.

Similarly, in the present case, Best Buy has not shown that it came forward with evidence that McKinney was fully and completely compensated that the trial court refused to consider.

For these reasons, we conclude that the trial court did not rely upon an erroneous interpretation of the law in determining that Best Buy had been unsuccessful in proving that McKinney had been fully and completely compensated for his losses. We therefore affirm the trial court’s order denying Best Buy’s motion to enforce its subrogation lien.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The trial court also denied the parties’ respective motions for sanctions, but neither party has appealed that ruling.

       Best Buy also points to McKinney’s brief opposing enforcement of the subrogation lien, where McKinney listed certain medical bills that he had incurred as a result of his injuries. But McKinney’s brief did not quantify his lost past and future wages and did not purport to provide an exhaustive list of all of the economic losses he had sustained. And, as previously indicated, the burden was on Best Buy, not McKinney, to present evidence of the extent of McKinney’s economic losses caused by his injuries, including whether and to what extent his wages were affected. See Liberty Mut. Ins. Co., 244 Ga. App. at 341 (3).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A1597.
    HERRING v. THE STATE.
    (778 SE2d 57)
   BARNES, Presiding Judge.

We granted Curtis Herring, Jr.’s interlocutory review of the trial court’s order overruling his special demurrer. Herring’s indictment charged him with eight sexual offenses against his stepdaughter that took place during three different date ranges — January 11, 2013 to October 28, 2013; October 28, 2013 to August 20, 2014; and August 20, 2014 to September 24, 2014, representing the time periods that Herring and the victim resided in the homes in which she alleged the sexual contact had occurred. Specifically, Herring was charged with: (1) incest between January 11, 2013 and October 28, 2013; (2) incest between October 28, 2013 and August 20, 2014; (3) incest between August 20, 2014 and September 24, 2014; (4) child molestation between August 20, 2014 and September 24, 2014; (5) child molestation between January 11, 2013 and October 28, 2013; (6) aggravated child molestation between October 28, 2013 and August 20, 2014; (7) aggravated sodomy between October 28, 2013 and August 28, 2014; and (8) aggravated sodomy between October 28, 2013 and August 20, 2014.

Herring filed a special demurrer to quash the indictment on the ground that the State failed to adequately narrow the three date ranges, even though it had the ability to do so. Following a hearing, the trial court overruled the demurrer, but certified its order for immediate review. Herring now appeals from the grant of his interlocutory application. On appeal, Herring contends that the indictment is imperfect in form because the State alleged a month-long date range in Counts 3 and 4 even though the victim was able to specify that she had sex with Herring on September 24, 2014. Upon our review, and finding the indictment insufficient as to Counts 3 and 4, we reverse the trial court’s denial of Herring’s demurrer as to those counts.

In reviewing a ruling on a special demurrer, we apply a de novo standard of review, because it is a question of law whether the allegations in the indictment are legally sufficient. Further, because we are reviewing an indictment before any trial, we do not conduct a harmless error analysis to determine if the defendant has actually been prejudiced by the alleged deficiencies in the indictment; rather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.

(Citation omitted.) Blanton v. State, 324 Ga. App. 610, 614 (2) (751 SE2d 431) (2013).

At the hearing on Herring’s special demurrer, the lead investigator who interviewed the victim and who established the date ranges in the indictment, testified that the victim could not remember the exact dates that the sexual contact had occurred. However, she provided him with the three addresses that she had lived when she was molested and that he had then derived the three date ranges in the indictment from the dates on the lease agreements of each address. The victim told him that Herring had sex with her “four or five” times when they lived at the Bark Avenue address which was leased from January 11, 2013 to October 28, 2013, representing Counts 1 and 5. They next leased a residence on El Pino Road from October 28, 2013 to August 20, 2014, Counts 2, 6, 7, and 8, where the victim alleged that sodomy had occurred and she and Herring had sexual intercourse “ten or more times.”

Herring and the victim next lived at an address on Highway 111, where the victim was living when she made her outcry. The victim told the investigator that Herring had sex with her on multiple occasions while at that location, and remembered that September 24, 2014, between 5:30 and 6:30 p.m., was the last day that Herring had sex with her. The date range alleged in the indictment was August 20, 2014 to September 24, 2014, representing Counts 3 and 4. The investigator testified that he included the range of dates because it represented the time Herring and the victim lived on Highway 111 until the date the victim recalled as the last day they had sex.

The investigator testified that when the victim said that she could not remember the dates that the sexual conduct had occurred, only where they were living when it occurred, and once he was able to ascertain the dates in the different residences, he did not attempt to further narrow the dates by asking the victim questions such as whether the incidents occurred near Christmas, her birthday, or while she was in or out of school. The investigator further testified that, rather than bring multiple charges for the various acts, he had charged Herring with only one count each for the crimes committed in each of the three residences.

“We conduct a de novo review of a trial court’s ruling on a special demurrer in order to determine whether the allegations in the indictment are legally sufficient.” (Citation and punctuation omitted.) State v. Godfrey, 309 Ga. App. 234, 239 (3) (709 SE2d 572) (2011). We apply different standards when we review rulings on special demurrers pre-trial and post-trial. When reviewing a ruling before trial, we consider whether the indictment is perfect in form and substance, but when reviewing it after trial, we consider whether the defendant suffered actual prejudice from alleged deficiencies in the indictment. State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001). Here, we review the indictment pre-trial to consider whether it is perfect in form and substance.

“Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer.” (Citations, punctuation and footnote omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005); see OCGA § 17-7-54 (a) (indictment should state with sufficient certainty the time and place of committing offense). However, if the State can show that the evidence does not permit it to allege a specific date, it may allege that the crime occurred between two specific dates. Id. In response to a special demurrer, the State must present evidence to the trial court showing that it cannot narrow the date of the crime, and absent such a showing, an indictment failing to charge a specific date is imperfect and subject to special demurrer. Blackmon v. State, 272 Ga. App. 854, 855 (614 SE2d 118) (2005) (trial court erred in denying special demurrer when State introduced no evidence, only argument, that minor victim was “incapable of adequately articulating exactly when the offense occurred”). Here, the State presented evidence that the victim told the investigator that she and Herring last had sexual intercourse on September 24, 2014 at the Highway 111 address and also engaged in sexual conduct multiple times during the month they lived at the Highway 111 address. Herring was charged with one count of incest and one count of child molestation between August 20, 2014 and September 24, 2014. The State contends that the exception to the single-date rule applies in this case because the victim could not identify the exact dates of “multiple prior occasions when [Herring] molested [the] victim” at the Highway 111 address.

However, the victim’s allegations that Herring committed multiple acts of molestation and incest on unknown dates during that time period are irrelevant to the issue here. Herring is charged with only one count each of incest and child molestation during this date range. The evidence demonstrates that the State is able to identify a single date on which the conduct occurred, September 24, 2014, and was therefore able to narrow the date of those two crimes in the indictment. Thus, those counts of the indictment are subject to a special demurrer. See State v. Layman, 279 Ga. at 340-341; State v. Meeks, 309 Ga. App. 855, 858 (1) (711 SE2d 403) (2011) (trial court did not err in sustaining special demurrer when State presented no evidence about why an investigating officer failed to ascertain specific dates of offenses allegedly occurring during the two-month period alleged in the indictment).

Accordingly, because the evidence showed that the State reasonably could narrow the range of dates alleged in Counts 3 and 4 of the indictment to a single date, we reverse the order of the trial court overruling Herring’s special demurrer as to those counts.

Our holding does not preclude the State from reindicting Herring on Counts 3 and 4 upon the return of this case to the trial court. Wallace v. State, 253 Ga. App. 220, 223 (3) (558 SE2d 773) (2002) (When a defendant files a special demurrer challenging the form of an imperfect indictment, “the quashing of [the] indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant.”) (footnote omitted).

Decided September 28, 2015.

Patrick E. Chisholm, for appellant.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

Judgment reversed.

Ray and McMillian, JJ., concur.

       The Department of Family and Children Services removed the victim from the home on October 6, 2014 after her disclosure.

       The indictment does not specify any particular location for the alleged crimes, other than "Grady County.”


author: ELLINGTON, Presiding Judge.

text:
    A15A1607.
    WIGGINS v. THE STATE.
    (778 SE2d 60)
   ELLINGTON, Presiding Judge.

. A Dougherty County jury found Dominique Wiggins guilty of armedrobbery, OCGA § 16-8-41 (a); two counts of aggravated assault, OCGA § 16-5-21 (a) (1) (2011); and possession of a firearm during the commission of a felony, OCGA § 16-11-106. Wiggins appeals, contending that the State failed to present sufficient evidence to support the jury’s finding of guilt beyond a reasonable doubt. For the reasons that follow, we affirm.

[0]n an appeal following a conviction, the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this Court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

(Citation and punctuation omitted.) Webb v. State, 228 Ga. App. 624, 625 (2) (492 SE2d 312) (1997); see also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows the following. On December 8, 2011, around 9:00 a.m., Wiggins and another man, both clothed so as to cover their faces, ran into the Havmor store, pointed their handguns at the store clerk, and demanded money along with Newport cigarettes. After being handed approximately $300 and the cigarettes, the two men fled the store. Upon the arrival of the police, the victim identified Wiggins, a daily customer, as one of the robbers. Several months later, when presented with a photographic lineup, the victim, yet again, identified Wiggins. The robbery was recorded by the store’s surveillance video, which was published to the jury at trial.

Shortly after Wiggins was initially identified, officers went to Wiggins’s residence, where he lived with four other family members, and they were allowed in to search the premises. Although the officers entered to determine whether Wiggins and his accomplice were hiding therein, they noticed clothing, in plain view, that matched the description given by the victim. A search warrant was obtained. After a more thorough search of the residence, the officers found two handguns, one black and the other silver and black, later identified by the victim as having been in possession of the robbers, and various items of clothing. They seized clothing including a jacket depicting a lion or tiger across the back. The victim testified that Wiggins wore that jacket during the robbery.

During the investigation, fingerprint evidence was collected from the crime scene. Officers were not able to lift prints from the two handguns recovered from Wiggins’s residence. An officer testified that out of the 21 fingerprints recovered from the crime scene, only four were identifiable, none of which were a match for Wiggins.

During trial, Wiggins presented an alibi defense through the testimony of his girlfriend, Shakilla Cleveland. Cleveland testified that she was with Wiggins at her home from 8:00 a.m. until around 10:30 a.m. on the day of the robbery.

The State indicted Wiggins on four counts, charging him with the following offenses: in Count 1, committing armed robbery in that he “did unlawfully take U. S. currency... from the person of the [victim] by the use of a certain handgun, an offensive weapon”; in Count 2, committing aggravated assault in that he “did make an assault upon the person of [the victim], with the intent to rob”; in Count 3, committing aggravated assault in that he “did make an assault upon the person of [the victim] with a certain handgun, a deadly weapon”; and in Count 4, committing the offense of possession of a firearm during the commission of a felony in that he “did unlawfully have on his person a certain handgun .. . during the commission of the crime of [aggravated [a]ssault[.]” The jury found Wiggins guilty beyond a reasonable doubt on all four counts.

On appeal, Wiggins contends that the evidence presented was insufficient to prove guilt beyond a reasonable doubt.

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations, punctuation and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B). Thus, our concern here is whether, applying the foregoing standard, the evidence presented supported Wiggins’s convictions.

1. Wiggins contends that the evidence was insufficient to support his convictions because the victim’s identification was mistaken. However, the credibility of the victim’s identification was a matter to be determined by the jury. As this court has previously held, on appeal “we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citation and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (1) (436 SE2d 799) (1993). The evidence shows that, even though Wiggins was covered from head to toe in clothing with only his eyes visible, the victim was able to identify Wiggins, who spoke during the robbery, because Wiggins was a regular customer and the victim had watched Wiggins grow up. Similarly, in Roberts v. State, 317 Ga. App. 385, 386-387 (1) (730 SE2d 753) (2012), evidence sufficient to support the appellant’s armed robbery conviction included the victim’s identification of the appellant, who, although masked during the robbery, had been a customer at the victim’s stores since the appellant was a child. “Contrary to [Wiggins’s] assertion on appeal, the combined evidence set out above was sufficient to authorize a rational jury to find him guilty beyond a reasonable doubt of the charged offenses.” (Citation omitted.) Id.

2. Wiggins argues that it was impossible for him to have committed the charged offenses because he was at Cleveland’s home at the time of the crime. In support of this argument, Wiggins points to selected language from Hightower v. State, 224 Ga. App. 703, 705 (2) (481 SE2d 867) (1997), particularly our statement that “[a]n alibi defense creates a reasonable doubt on behalf of the accused[.]”

To the extent Wiggins suggests that, having presented an alibi defense, he necessarily established reasonable doubt, he is mistaken. As we also explained in Hightower, evidence of alibi “is simply evidence in support of a defendant’s plea of not guilty, and should be treated merely as evidence tending to disprove one of the essential factors in the case of the prosecution, that is, presence of the defendant at the time and place of the alleged crime.” (Citation and punctuation omitted.) Id. at 704-705 (2). Although Cleveland’s testimony provided an alibi for Wiggins and so was inconsistent with the testimony of the victim, it was for the jury to assess the credibility of these witnesses. See, e.g., Newberry v. State, 182 Ga. App. 857 (1) (357 SE2d 309) (1987) (The evidence was sufficient to support the appellant’s armed robbery conviction even though the appellant presented evidence of an alibi which was corroborated by two others.).

3. Wiggins further claims that because certain evidence, including items seized from his home, does not prove his guilt beyond a reasonable doubt, such “confirm[s] [the] insufficiency of the evidence.” More specifically, Wiggins contends that various items seized from his home, such as red hats not shown to be used in the robbery; a black handgun which, he maintains, was not consistent with the handgun used in the robbery; unremarkable gloves; and a graphic tee shirt, were irrelevant and immaterial to the case. He argues that although Wiggins’s DNA was found on a red hat seized from his home, this did not connect him with the robbery inasmuch as the victim testified that the perpetrators had not worn red hats. He points to testimony that the black handgun and the “lion” design jacket seized by the police were not owned by Wiggins, but by Wiggins’s brother. And Wiggins shows that there was a lack of fingerprint evidence connecting him to the crime, notwithstanding that officers recovered several prints from the crime scene.

All the same, “as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.” Askew v. State, 248 Ga. App. 230 (1) (546 SE2d 15) (2001). Thus, we need not determine if all of the evidence supported the State’s case. Rather, the State presented evidence from which the jury could conclude that Wiggins was one of the two men who took cash from the victim by the use of a handgun. Accordingly, we find that any rational trier of fact could have found Wiggins-guilty beyond a reasonable doubt of the crimes for which he was convicted.

Decided September 30, 2015.

Troy E. Golden, for appellant.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Cania Brown-Gordon, Heather H. Lanier, Assistant District Attorneys, for appellee.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       The State indicted Toddrick Mills as the second gunman, and Mills was tried jointly with Wiggins. The jury found Wiggins guilty of all charges hut were unable to reach a unanimous verdict as to Mills.

       See OCGA § 24-6-620 (“The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.”).

       Evidence showed that the black handgun used in the robbery was equipped with a laser pointer, but that the black handgun seized from Wiggins’s residence was not equipped with a laser pointer.


text:
    A15A0770.
    TUCKER et al. v. ROGERS.
    (778 SE2d 795)
   BARNES, Presiding Judge.

Alan David Tucker and Alan David Tucker, Esq., PC., appeal the trial court’s grant of partial summary judgment on liability to Tucker’s former client James Rogers in this legal malpractice case. For the reasons that follow, we reverse.

“To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law.” (Citation omitted.) Duke Galish v. Arnall Golden Gregory, 288 Ga. App. 75, n. 1 (653 SE2d 791) (2007). We view the evidence in the light most favorable to the respondent, as the nonmoving party. Peters v. Hyatt Legal Svcs., 211 Ga. App. 587, 592 (2) (b) (440 SE2d 222) (1993).

So viewed, the evidence establishes without dispute that Rogers was on his motorcycle stopped at a stop sign on November 24, 2006, when a car turned onto the street where Rogers was waiting and struck him head-on. Rogers initially attempted to negotiate a settlement with the other driver’s liability carrier but signed a contingency fee contract with Tucker on December 10, 2007 because he was dissatisfied with the carrier’s $7,500 offer of settlement.

The contract provided that Rogers retained Tucker’s firm “to prosecute, settle, compromise or litigate all claims arising” from the November 24, 2006 incident, “as a result of which [Rogers] may have an action for damages against [the other driver].” It authorized Tucker “to fully investigate the facts and law relative to the Matter” and gave him “the discretionary right to determine whether or not it is feasible to pursue the Matter.” If Tucker determined it was feasible to pursue the claim, he would be entitled to a contingent fee of one-third of the sum recovered if the claim was settled before suit was filed, 40 percent if suit was filed, and 45 percent if any judgment was appealed or post-judgment collection proceedings were required. Tucker was not authorized to settle or compromise the client without Rogers’ specific approval, and if a lawsuit did not end favorably, Rogers would owe no attorney fees to Tucker, although Rogers would remain responsible for paying fees and costs. Finally, the contract contained a disclaimer noting that Tucker had no control over the length of time it would take to reach a resolution of the case once he filed a lawsuit.

Rogers began obtaining treatment from a physician recommended by Tucker. After Rogers finished treating with that physician, Tucker sent a demand letter on October 3, 2008, to the other driver’s insurer, offering to settle the claim for $100,000. The insurer countered with the same $7,500 it offered to Rogers before he hired Tucker. On October 21, 2008, about a month before the expiration of the statute of limitation, Tucker called Rogers’ home number and found it had been changed, then called Rogers’ cell phone number twice and Rogers did not answer. Tucker testified that although he had Rogers’ work number in his file, he did not call it because it was a work number and “[rjather than bother him at work,” he chose to write Rogers a letter instead and send it by regular mail.

In the letter, Tucker stated that the insurer had offered to settle the claim for $7,500 and advised Rogers that he thought the claim was worth more than that. He advised Rogers to decline the settlement offer and allow him to file suit. The letter continued:

However, the decision to file suit or take their offer is totally up to you. Please remember that the “Statute of Limitation” runs on your claims against [the other driver] on November 23, 2008. If you want me to file suit, you must authorize me to do so prior to November 23, 2008. Please advise me as to how you wish to proceed. I have tried to call you several times and have been unable to reach you.

Tucker made no further efforts to contact Rogers and did not hear back from him. He did not know for certain that Rogers had received the letter or whether Rogers was incapacitated in any way. The statute of limitation ran on November 24, 2008, without suit being filed. On December 15, 2008, Tucker testified, he picked up Rogers’ file, “noticed [Rogers] hadn’t called,” and closed it. Then, although he did not have Rogers’ permission to settle the case, Tucker decided to contact the insurance adjuster to see if he “could at least get [Rogers] his $7500” since the statute had already run. Tucker sent the adjuster a letter on December 18, 2008, accepting her October 21, 2008, offer to settle Rogers’ claims for $7,500. When asked why the insurer agreed to honor the settlement offer even though the statute of limitation had expired, Tucker theorized that perhaps the insurer did so due to Tucker’s “long working'relationship” with the adjuster.

Shortly afterward, someone from the insurance company called Tucker’s office and asked his assistant if Rogers were married, and if so, was she a party to the settlement and for her name and social security number. The assistant tried calling the three telephone numbers in Rogers’ file, and reached Rogers on his cell phone. The cell phone number was written on a post-it note in the file and had been in the file folder since the file was created on December 10, 2007. When Rogers asked why the assistant wanted the information, she responded that the insurance company had asked for it and she thought it had something to do with a check. Rogers asked the assistant what she was talking about, and she said all she knew was that the adjuster called and asked her for the name and social security number of Rogers’ wife.

Rogers came to Tucker’s office to ask about his case. Tucker told him he had a check “for $7,000 and some change,” but Rogers protested that the insurer had already offered him $7,500 and he would not take it, which is the reason he hired Tucker. Tucker then told Rogers that the statute of limitation had run and it was too late to file suit. Rogers testified that the first time he had ever seen Tucker’s October 21, 2008, letter was the day he went to Tucker’s office in December 2008. Rogers obtained a copy of his file and subsequently sued Tucker for legal malpractice, breach of fiduciary duty, breach of contract, punitive damages, and attorney fees under OCGA§ 13-6-11.

Following discovery, Rogers moved for partial summary judgment as to liability for legal malpractice, based on two separate violations of the standard of care: (1) Tucker’s failure to file suit before the expiration of the statute of limitation, and (2) Tucker’s settlement of Rogers’ claim without permission. Rogers further sought summary judgment as to proximate cause, arguing that Tucker’s failure to file suit before the statute expired made Rogers lose his right to pursue a personal injury suit against the driver who hit him. Finally, Rogers sought summary judgment on the liability of the defendant in the underlying case, because Tucker had admitted that it was a clear liability case.

The trial court granted the motion for partial summary judgment and found no genuine issues of material fact regarding liability for legal malpractice, proximate cause, and liability of the other driver in the underlying personal injury case. On appeal, Tucker argues that the trial court erred on each of these issues.

1. To prevail on a claim for legal malpractice, the plaintiff must show three things: (1) that plaintiff employed the defendant attorney, (2) that the attorney failed to exercise ordinary care, skill and diligence, and (3) that this failure proximately caused damages to the plaintiff. Paul v. Smith, Gambrell & Russell, 267 Ga. App. 107, 108 (1) (599 SE2d 206) (2004). In this case, the parties do not dispute that Rogers hired Tucker to represent him in his personal injury claim, but Tucker argues on appeal that genuine issues of material fact exist for a jury to determine regarding the second and third prongs of the malpractice claim: whether his actions breached the standard of care and if so, whether the breach proximately caused damages to the plaintiff.

(a) Tucker asserts that the trial court erred in granting summary judgment on the issue of legal malpractice because questions of fact exist for a jury to determine regarding whether he breached the standard of care by failing to file suit before the statute of limitation ran. Tucker also points out that Georgia’s Code of Professional Responsibility alone does not determine liability in a legal malpractice action, and argues that, under the circumstances in this case, his failure to file suit before the statute of limitation expired did not make him strictly liable.

Both Tucker’s expert and Rogers’ expert agreed that an attorney should consult with a client before filing a lawsuit. As Tucker’s assistant observed, “A lot of people don’t want a lawsuit,” and so standard practice in Tucker’s office was to send out a letter and tell them when the statute will run so that if they want suit filed the clients can contact Tucker and let him know.

Our appellate courts have held that

an alleged violation of the Code of Professional Responsibility (State Bar Rules 3-101 et seq.) or the Standards of Conduct (State Bar Rule 4-102), standing alone, cannot serve as a legal basis for a legal malpractice action.... This is so because [,] while the Code of Professional Responsibility provides specific sanctions for the professional misconduct of the attorneys whom it regulates, it does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof.

(Citations and punctuation omitted.) Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374 (1) (453 SE2d 719) (1995); Georgia Rules of Professional Conduct, Part 1, Scope [18] (“These Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.”). While a violation of the Professional Code does not per se establish legal malpractice liability, however, “pertinent Bar Rules are relevant to the standard of care in a legal malpractice action.” Allen, 265 Ga. at 376 (2) (a).

Tucker testified that he had no authority to file suit without explicit instructions from Rogers, and contends that the statute ran without suit being filed because Rogers failed to inform him that he had changed his home number, failed to answer his cell phone when called twice in one day, and failed to respond to Tucker’s October 21, 2008, letter seeking permission to file suit. Tucker needed permission from Rogers to file suit, he testified, because his fee would increase from one-third to 40 percent and because Rogers would become responsible for paying the costs of filing suit.

Tucker’s expert on legal malpractice testified that the decision whether to file suit belonged to the client, and that an attorney is not automatically obligated to file suit solely because he had been retained as counsel. Whether an attorney was entitled to file suit on behalf of a client depended on whether he was authorized to do so, and that authority depended on the case, the client, and the understanding between the attorney and client, the expert said. In the expert’s opinion, the provision in the fee agreement that Rogers retained Tucker to prosecute or litigate the claims, was just a “standard sort of language used that any of those possibilities may occur during the representation,” and did not authorize Tucker to file suit on Rogers’ behalf. Finally, Tucker’s expert testified that Tucker’s actions in sending a letter via regular mail a month before the statute, asking Rogers to elect whether to settle for $7,500 or file suit, and then making no further attempt to contact Rogers before the statute ran, did not fall below accepted standards of care. Tucker was aware of the date the statute would run, he informed Rogers, and Rogers “missed the statute if he wanted his lawsuit filed” by failing to respond to the letter.

Tucker’s expert would have done things differently, and would have filed suit with his client’s permission long before the statute was close to expiring. But how long in advance of the statute’s expiration a suit should be filed, he asserted, was entirely “driven by the communication with your client and your advice given to the client and your instructions received from the client and there has to be a meeting of the minds.” Both Tucker and his expert testified that they thought that the parties’ fee agreement in this case did not authorize Tucker to file suit without Rogers’ permission.

Rogers’ legal malpractice expert was of the opinion that Tucker’s actions fell below the standard of care because he failed to obtain a response from the client about whether to accept the settlement offer or file suit before the statute ran. In the expert’s opinion, “sending a letter to a client that places an affirmative duty on the client to respond to you and [assuming] that the absence of that response constitutes an acceptance of the offer you advise they not take” did not meet the standard of care. And in her opinion, sending the letter in this case with a fairly short time before the filing deadline was “extremely unusual.” Further, the expert opined, Tucker had the authority and permission to file suit in the case pursuant to the fee contract, and did not require further permission to file under Bar Rule 1.2 (a), which provides that a lawyer is impliedly authorized to do what is necessary to effect the purpose of the engagement.

The competing expert testimony regarding whether Tucker’s actions fell below the standard of care or not constitutes a genuine issue of material fact that must be resolved by a jury.

(b) Tucker also contends that the trial court erred in holding that Tucker violated the applicable standard of care in accepting the insurer’s offer to settle Rogers’ claim for $7,500 after the statute ran. We disagree.

Tucker admitted he had no authority to settle Rogers’ claim without express permission, and the parties’ contract explicitly required that Tucker obtain approval from Rogers before agreeing to a settlement. Rogers’ expert testified that accepting the offer violated not only the parties’ contract but also the Code of Professional Responsibility. Tucker’s expert testified that telling the insurance company that Rogers accepted its $7,500 offer without talking to Rogers was “probably a technical violation.”

The experts thus agree that Tucker violated the applicable standard of care by accepting a settlement offer that the insurer was not obliged to pay after the statute of limitation ran, and the trial court did not err in so finding.

2. Tucker also argues on appeal that the trial court erred in finding that Tucker’s breach of the standard of care was the proximate cause of Rogers’ damages. We agree. Based on our conclusion in Division 1 (a) that a jury question exists as to whether Tucker violated the standard of care by not filing suit before the statute ran, it follows that the trial court erred in granting summary judgment on the issue of whether that breach proximately caused damages.

Further, while the experts agreed that Tucker breached the standard of care in accepting the insurer’s offer without consulting Rogers, Tucker’s expert testified that accepting the insurer’s offer after the statute expired actually benefitted Rogers because there was no claim left to settle after the statute expired. Whether this breach proximately caused damages is therefore a factual issue for the jury to resolve.

3. Finally, Tucker argues that the trial court erred in granting summary judgment to Rogers on the liability of the at-fault driver in the underlying personal injury claim.

An action for the negligence of the attorney in the unskillful conduct and management of litigation is for the value of the claim lost through such negligence. The claim must be valid, and every fact essential to its validity must appear, and it must further appear that the party against whom the claim was asserted was solvent.

(Citation and punctuation omitted.) McDow v. Dixon, 138 Ga. App. 338 (226 SE2d 145) (1976). If the plaintiff proves the first two elements of a legal malpractice claim, he must then “show that, but for the attorney’s negligence in the underlying case, the plaintiff would have prevailed.” (Citation and punctuation omitted.) Leibel v. Johnson, 291 Ga. 180, 182 (728 SE2d 554) (2012). This phase is “the so-called ‘suit within a suit,’ to determine whether the client was, in fact, damaged by that negligence. Thus, the ultimate goal of the ‘suit within a suit’ is to determine what the outcome should have been if the issue had been properly presented in the first instance.” Id.

Here, Tucker testified that the other driver in the underlying incident was clearly liable for colliding with Rogers as he waited on his motorcycle at a stop sign, and that he thought that Rogers’ damages claim was worth more than $7,500. He advised Rogers in his October 2008 letter not to take the offer of $7,500, which was the amount the insurer had offered Rogers a year before and which resulted in him hiring Tucker. Tucker further testified that if the insurer had “put [$]25,000 on the table” he would have told Rogers to consider the offer. And the record contains some proof that Rogers could have recovered a damages award because the tortfeasor was insured. The record thus establishes no issue of fact as to the liability of the defendant in the underlying personal injury claim, and the trial court did not err in this regard. We note, however, that a question of fact remains regarding the amount of damages a jury would have awarded Rogers if Tucker had filed suit before the statute of limitation expired and the case had gone to trial.

In summary, the jury must first determine whether Tucker violated the applicable standard of care in the events leading up to the expiration of the statute of limitation without suit being filed. If he did not, then the jury should consider only whether his violation of the standard of care in settling Rogers’ claim without consulting him proximately caused damages. On the other hand, if the jury finds that Tucker did violate the standard of care by allowing the statute to expire without filing suit, then the jury should consider whether the breach proximately caused damages, based on the value of his underlying personal injury claim.

Decided October 1, 2015.

Hall Booth Smith, Michael G. Frick, Madeline J. Mitchell, for appellants.

Linley Jones, Jennifer S. Ivey, for appellee.

Judgment reversed.

Ray and McMillian, JJ., concur.


author: DOYLE, Chief Judge.

text:
    A15A0850.
    REGAN v. EDWARDS.
    (778 SE2d 233)
   DOYLE, Chief Judge.

Beverly Regan appeals from an order awarding attorney fees under OCGA § 9-15-14 (b) to her ex-husband, Donald Blair Edwards III. For the reasons that follow, we vacate the award of attorney fees.

We review a trial court’s grant of attorney fees for an abuse of discretion.

The record reveals that the parties’ divorce settlement agreement was entered in September 2009, and the final order of divorce entered in February 2010.

On July 17,2012, Regan provided written notification to Edwards that she expected to move to Massachusetts with their two sons by September 8, 2012. In response to the notification, on July 25, 2012, Edwards filed a petition for modification of child custody, parenting time, and child support, and a citation for contempt. Edwards requested an emergency hearing on the matter, and a hearing was held on August 29,2012. Regan answered and responded, asking for a change in custody based on long-distance visitation and alleging that the move was necessary because she required family support based on Edwards’s continued failure to provide previously agreed-to financial support and payment on the couple’s marital tax obligations. Thereafter, a temporary order was entered.

On March 15, 2013, the parties had a mediation, which resulted in a partial agreement. On April 2, 2013, a partial final agreement was filed, and Edwards filed an amended petition, asking the trial court to decrease his child support payments to Regan. Regan answered, arguing that the children’s childcare costs had not materially changed since entry of the 2009 decree, and she had experienced a 25 percent decrease of income since that time. Additional mediation and negotiations ensued regarding substantial pre-divorce tax obligations, and although the parties purportedly agreed to a settlement of those issues, Regan refused to agree to formal entry with the court of that purported agreement. Edwards successfully moved for enforcement of this settlement agreement, the details of which have no bearing on this appeal, and for attorney fees pursuant to various provisions of OCGA § 9-15-14.

Regan contends that the trial court erred by awarding a portion of attorney fees to Edwards under OCGA § 9-15-14 (b) because the conduct precipitating the award occurred prior to initiation of the litigation. We agree.

Pursuant to OCGA § 9-15-14 (b):

The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or- party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures .... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

This Court has explained that attorney fee awards pursuant to OCGA § 9-15-14 (b) may not be based on conduct that occurred prior to litigation.

Decided October 1, 2015.

Manchel, Wiggins & Kaye, Scott M. Kaye, for appellant.

Pachman Richardson, Kyla S. Lines, for appellee.

Although the trial court’s order announced that $10,463 fees were awarded under OCGA § 9-15-14 (b) for “unnecessarily expanding] the proceedings,” the conduct underlying this award was the trial court’s finding that there was “no basis” for Regan’s planned move to Massachusetts that precipitated Edwards’s filing of the action for modification of child support and parenting time. Regan’s announced intention to move to Massachusetts occurred prior to the instigation of Edwards’s petition; therefore, the trial court abused its discretionby granting Edwards’s motion for fees under OCGA § 9-15-14 (b) for this conduct. Regan’s defense of Edwards’s petition for custody and child support modifications was legally supportable except for two instances of conduct for which the trial court awarded separate amounts of attorney fees, the award of which Regan does not challenge on appeal. Accordingly, the order and amended order are vacated as to the attorney fee award of $10,463 erroneously based on Regan’s pre-litigation conduct. The case is remanded for entry of an award consistent with this opinion.

Judgment vacated and case remanded with direction.

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

       See Longe v. Fleming, 318 Ga. App. 258, 261 (2) (733 SE2d 792) (2012); Wallace v. Noble Village at Buckhead Senior Housing, 292 Ga. App. 307, 310 (664 SE2d 292) (2008).

       Regan filed a number of contempt actions after the final order of divorce was entered in order to enforce provisions of the incorporated settlement agreement, including payment of back taxes, payment of child support and medical expenses, and payment of attorney fees.

       We note that Edwards has failed to file an appellate brief.

       See Stone v. King, 196 Ga. App. 251, 253 (3) (396 SE2d 45) (1990) (comparing fee awards pursuant to OCGA § 13-6-11, which may be based on conduct arising prior to litigation); Cobb County v. Sevani, 196 Ga. App. 247,248-249 (395 SE2d 572) (1990) (holding that “[t]he focus of [OCGA § 9-15-14 (b)] is clearly upon actions that are undertaken in connection with the underlying legal proceedings, and not upon the pre-litigation actions of one who only subsequently becomes a party to a legal proceeding.”).

       The trial court separately awarded fees of $5,250 for two hearings that the court found unnecessary and based on Regan’s conduct during the pendency of the action. Regan has not appealed this portion of the attorney fee award.

       See Sevani, 196 Ga. App. at 248-249. Compare with Stone, 196 Ga. App. at 253 (3).

       See, e.g., Kitchens v. Ezell, 315 Ga. App. 444, 451-452 (2) (726 SE2d 461) (2012) (physical precedent only).

       Compare Wallace, 292 Ga. App. at 311 (reversing award under OCGA § 9-15-14 because evidence did not support award) with Longe, 318 Ga. App. at 261 (2) (vacating and remanding as to the issue of attoney fees “[b]ecause the trial court failed to make [any] findings sufficient to support such an award under” OCGA § 9-15-14 (b) or cite to a specific code section authorizing its attorney fee award). In this case, the trial court’s specific finding of fact does not support the award under OCGA § 9-15-14, and therefore, we decline to remand for additional findings of fact.


text:
    A15A1488.
    CALDWELL et al. v. EVANS et al.
    (778 SE2d 235)
   BARNES, Presiding Judge.

Craig Caldwell and his professional practice, Internal Medicine Associates of Middle Georgia, PC. (collectively “Caldwell”), appeal the trial court’s order permitting a substitution and addition of plaintiffs in this medical malpractice case following the deaths of the named plaintiffs. Caldwell contends that the trial court erred in allowing the plaintiffs to add only two of the five surviving children of the deceased plaintiffs, arguing that the wrongful death statute requires all surviving children must be parties to the suit in the absence of a surviving spouse. For the reasons that follow, we affirm the trial court.

In 2012, Claudia Evans sued Caldwell for medical malpractice, alleging that he had negligently failed to diagnose her cancer. Claudia’s husband, Edison Evans, asserted a claim for loss of consortium. Edison died in 2013, and Claudia died in 2014, leaving five surviving children. Two of those children — the ones appointed as executors of their parents’ estates — filed a motion to substitute parties and add additional parties. The trial court granted the motion, substituting the two children in their capacities as co-executors in place of the parents and adding the two children as additional parties for the purpose of pursuing a wrongful death claim for Claudia’s life. At Caldwell’s request, the court certified its order for immediate review, we granted Caldwell’s application for interlocutory appeal, and this appeal followed.

Citing OCGA § 51-4-2, which addresses the parties entitled to bring wrongful death actions for the death of a spouse or parent, Caldwell argues on appeal that the trial court erred by allowing fewer than all of Claudia Evans’ five surviving children to be added as plaintiffs. The plaintiffs argue that Caldwell lacks standing to make this argument because he is subject to only one cause of action, and that, in any event, Caldwell’s interpretation of the law is wrong.

The predecessor to OCGA § 51-4-2 has been amended several times over the years, and most of the cases cited by both Caldwell and the plaintiffs were decided under earlier versions of the law. In 1939, Code Ann. § 105-1306 provided a right of action for wrongful death to the survivors of a married woman:

The husband and/or child or children may recover from the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with the right of survivorship as to said suit, if either shall die pending the action.

Ga. L. 1939, p. 233, § 1 (emphasis supplied). The Supreme Court interpreted this language as requiring that all surviving parties had to join in the wrongful death action for any surviving party to recover. See Happy Valley Farms v. Wilson, 192 Ga. 830, 835 (16 SE2d 720) (1941) (explaining “the necessity of all joining as plaintiffs”).

In 1960, the statute was amended to add the following language:

Provided, however, if any one or more of those comprising the husband and children ... shall desire to bring an action seeking to recover for the tortious homicide of such mother, he or they may file such action and cause a copy thereof to be served personally upon the remaining individuals comprising said husband and children, .. . and any of such persons may intervene in said case as an additional plaintiff at any time before final judgment. After final judgment, any of such persons not a party plaintiff shall have no further right of action against the alleged tortfeasor; but any of such persons not duly served as provided above shall have a right against the parties plaintiff for his or their proportionate part of the recovery in said action.

Code Ann. § 105-1306 (Ga. L. 1960, p. 968, § 1). Interpreting this additional language, we held:

This legislation evidences a clear intent that less than all of the potential plaintiffs may bring an action for the full value of the life of the decedent, and all potential plaintiffs who are not served may bring a subsequent action against the successful plaintiffs for a proportionate share of any amount recovered from a tortfeasor.

Adams v. Wright, 162 Ga. App. 550, 552 (2) (293 SE2d 446) (1982). We further held that the wrongful death defendant in such a case “has no standing to object to an action by less than all plaintiffs since only one action can be brought against him.” Id. Thus, if the present case had arisen under the 1960 law, then the plaintiffs plainly would be correct — all five surviving children would not need to be made parties plaintiff, and Caldwell would lack standing to object to the addition of fewer than all of them.

But the law was amended in 1985 to substantially its present form, which provides:

(a) The surviving spouse or, if there is no surviving spouse, a child or children .. . may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.
(b) (1) If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.
(2) If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.
(d) (1) Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita ....

OCGA § 51-4-2. See Ga. L. 1985, p. 1253, § 1. The current version of the law, then, does not contain the language from the 1960 amendment specifically providing that fewer than all survivors may bring a wrongful death action. Caldwell relies upon this omission for his claim that the current law requires full survivor participation. He also argues that the holding in Adams, supra, that the defendant lacks standing to challenge such matters, does not apply in light of the 1985 statutory change.

Caldwell’s arguments lack merit. First, although the current law does not explicitly say that full participation is not required, the language of the statute strongly implies it. Under OCGA § 51-4-2 (b) (2), if a child brings a wrongful death action for a parent’s death, but the child later dies, the action “shall survive to the surviving child or children” — suggesting that the “surviving child or children” was not a plaintiff at the outset. Second, nothing in the current law changes the rule announced in Adams that a wrongful death defendant “has no standing to object to an action by less than all plaintiffs since only one action can be brought against him.” 162 Ga. App. at 552 (2). Under OCGA § 51-4-2 (d) (1), the recovery from the wrongful death action is to be divided equally among the survivors, suggesting that there is only one recovery and therefore only one action to be brought. Accordingly, Caldwell has no real stake in the question of whether all the children join in the action, as the number of plaintiffs does- not affect the outcome for him. Under Adams, Caldwell lacked standing to object to the motion to add plaintiffs.

Decided October 1, 2015.

The McArthur Law Firm, Katherine L. McArthur, Caleb F. Walker; The Dellacona Law Firm, Tracey L. Dellacona, for appellants.

Martin Snow, John C. Edwards, Richard A. Epps, Jr., for appellees.

Because Caldwell lacks standing to complain that fewer than all of Claudia Evans’ surviving children are named plaintiffs, and because the trial court did not err in granting the plaintiffs’ motion to add and substitute parties, we affirm.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The plaintiffs also argue that even if Caldwell’s interpretation of the current statute is correct, the trial court had equitable discretion to allow the prosecution of a wrongful death claim by parties other than those designated by the statute. See Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369, 370-371 (667 SE2d 348) (2008) (recognizing court’s equitable authority to allow a representative of a minor child to bring a wrongful death action when a surviving spouse will not). In light of our conclusion that Caldwell lacks standing and has misread the statute, we do not reach this argument.


text:
    A15A1519.
    LEVIN v. THE STATE.
    (778 SE2d 238)
   BARNES, Presiding Judge.

In 1994, Gregory A. Levin was tried by a jury and convicted of kidnapping with bodily injury, two counts of aggravated assault, burglary, cruelty to children, aggravated battery, possession of a firearm during the commission of a crime, and making harassing phone calls. The trial court merged the aggravated battery conviction into the kidnapping with bodily injury conviction and sentenced Levin to a total of life plus 48 years in confinement. Levin appealed, and this Court reversed his conviction for making harassing telephone calls based on an improper verdict form, and his convictions for aggravated assault and possession of a firearm based on erroneous jury charges. Levin v. State, 222 Ga. App. 123, 126-127 (5), (6) (473 SE2d 582) (1996).

In 2014, the Supreme Court of Georgia reversed Levin’s conviction for kidnapping with bodily injury and vacated his life sentence based on the State’s failure to satisfy the asportation requirement as set forth in Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008). Levin v. Morales, 295 Ga. 781 (764 SE2d 145) (2014). The Court also noted that the aggravated battery conviction had been merged into the kidnapping conviction and ordered, “[n]ow that the kidnapping conviction has been reversed, on remand the trial court will need to revisit sentencing appellant on the conviction for aggravated battery.” Id. at 784.

On remand, the trial court conducted a resentencing hearing and on the day of the hearing, Levin filed a plea in bar on double jeopardy grounds, seeking dismissal of the aggravated battery count of the indictment. The trial court denied the plea in bar, and sentenced Levin to 20 years in confinement for the aggravated battery conviction. Levin now appeals the trial court’s denial of his plea in bar and his resentencing. For the reasons that follow, we affirm.

The facts of the case, as set forth in the Supreme Court of Georgia’s opinion, are as follows:

The record shows that the victim [Levin’s ex-wife] was asleep in her bedroom when her 12-year-old daughter heard appellant banging on the back door of their small duplex apartment. The daughter ran into the bedroom, woke her mother, and closed and locked the bedroom door. Determining that they could not leave the bedroom because the windows were painted shut, the victim- called police. While the victim was on the phone with authorities, appellant entered the house and proceeded to punch through the bedroom door so he could unlock it. The daughter testified that when appellant entered the bedroom he had a hammer and a gun in his hands. The victim was able to tell police about the gun before appellant snatched the phone away from her and hung it up. When the phone rang immediately after having been placed on its cradle, appellant destroyed it. Appellant told the daughter to leave the house, and she did so. As she ran out of the house police were arriving on the scene. After the daughter left and while still in the victim’s bedroom, appellant held the gun to the victim’s head, made threats, and slapped her. He also hit the victim on the back with an unattached bureau mirror, pistol whipped her, and kicked her in the stomach. Then he started destroying the bedroom furniture. At some point, the police used a public address system, instructing appellant to call them so they could negotiate the victim’s release. Having destroyed the phone in the bedroom, appellant dragged the victim by the neck and at gunpoint to the living room in order to retrieve a working telephone. Upon retrieving the telephone, he took the victim back to the bedroom. At that point, he also barricaded the front and back doors of the apartment.
Appellant held the victim hostage for approximately 12 hours. . . . The victim testified she was with appellant throughout the entire ordeal and that any movement was at gunpoint----The incident ended when a SWAT team forced their way into the apartment and apprehended appellant.

Levin, 295 Ga. at 781-782.

1. Levin contends that the evidence was insufficient to support his conviction for aggravated battery, which was based on his indictment for maliciously causing bodily harm to the victim “by seriously disfiguring her body by repeatedly beating her about her head, face and body.” He argues that the evidence only showed some bruising on the victim’s face and did not rise to the level of serious disfigurement. We disagree.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” (Citation and punctuation omitted.) Jones v. State, 329 Ga. App. 439 (765 SE2d639) (2014). So viewed, the evidence showed that after the victim was rescued by the SWAT team, she was taken to the hospital. Her daughter saw her when she arrived at the hospital and testified that she looked like “[a] pumpkin.” “Her face was swollen ... and she had a real bad bruised eye and she had blood on her and her lips were swollen. Basically her whole face was swollen.” The victim testified that Levin repeatedly slapped and hit her, kicked her in the stomach, hit her in the back with a large bureau mirror, punched her in the nose, beat her with the gun, choked her, and dragged her around with his arm around her throat. He also rammed the gun and his finger sharply into her eye, slammed her against the refrigerator, and hit her in the back of the head with the gun so hard that she could not stand up, lost her balance, and thought she had a concussion. Police officers at the hospital observed the victim’s injuries and took photographs, which showed her bruised and swollen face, with one eye swollen shut, and a “goose egg” on her face. The victim also sustained injuries to her hands, which photographs showed were bruised and swollen from the beating, and her feet, which were cut from walking on glass Levin had broken.

A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another... by seriously disfiguring his or her body or a member thereof. OCGA § 16-5-24 (a). Although OCGA § 16-5-24 does not define the term “serious disfiguring,” this Court has ruled that the crime of aggravated battery does not require that the victim’s disfigurement be permanent; however, the injury must be more severe than a mere visible or superficial wound. Notwithstanding this threshold for determining whether the disfiguring injuries meet the requisite level of seriousness to constitute an aggravated battery, we have further acknowledged that the circumstances of each aggravated battery vary; thus, whether a disfigurement is serious is almost always a question for the jury to resolve on a case-by-case basis.

(Citations and punctuation omitted.) Jones, 329 Ga. App. at 443 (1) (a).

Based on the evidence of the victim’s injuries, the jury could reasonably find that the combined injuries to her face, eyes, head, hands, and feet were more than mere visible or superficial wounds and that the victim’s disfigurement was serious. See Penland v. State, 229 Ga. 256, 257 (1) (190 SE2d 900) (1972) (evidence sufficient for aggravated battery conviction where victim’s head was covered in blood, body was covered with cuts and bruises, eyes were swollen shut, and she was incoherent after the attack); Jones, 329 Ga. App. at 444 (1) (a) (jury could reasonably find serious disfigurement where victim had marks on her jaw, neck, and earlobe and cuts on her ear and eye area; both eyes were bruised and swollen shut, and she temporarily lost consciousness); cf. Williams v. State, 248 Ga. App. 316, 317-319 (1) (546 SE2d 74) (2001) (evidence insufficient to support aggravated battery conviction where victim sustained minor scratches and bruises and there was no evidence of bleeding wounds or swelling).

2. Levin contends that the trial court erred by denying his plea in bar as to the resentencing on the aggravated battery conviction because the resentencing violated his protection against double jeopardy. He argues that because the greater offense (kidnapping with bodily injury) was reversed due to insufficient evidence, double jeopardy bars resentencing on the merged offense of aggravated battery. We disagree.

As Levin correctly points out, “where a defendant is tried and convicted of a crime, and that conviction is reversed due to insufficient evidence, procedural double jeopardy bars re-prosecution for that same crime and any lesser included crime.” Prater v. State, 273 Ga. 477, 481-482 (4) (545 SE2d 864) (2001); but see Levin, 295 Ga. at 784-786 (Blackwell, J., concurring) (noting existence of an open question under Georgia law — where a reviewing court determines that the evidence presented at trial has been rendered insufficient only by a post-trial change in the law, do double jeopardy concerns preclude the government from retrying the defendant?). Here, however, Levin was not reprosecuted, but merely resentenced as the Supreme Court of Georgia had instructed. The evidence was sufficient to support Levin’s conviction for aggravated battery, and the trial court did not err by resentencing him on that count of the indictment. See Harris v. State, 286 Ga. 245, 253 (8) (686 SE2d 777) (2009) (where counts of motor vehicle theft and theft by taking were merged and conviction for motor vehicle theft was reversed, on remand, conviction was to be “unmerged” from the reversed count and appellant sentenced on the other count); see also Donaldson v. State, 222 Ga. App. 532, 533 (474 SE2d 722) (1996) (where evidence is insufficient to support armed robbery conviction but sufficient to support lesser included offense of attempted robbery, robbery conviction vacated and case remanded to enter sentence and conviction on attempted robbery); Barnett v. State, 204 Ga. App. 491, 498 (3) (420 SE2d 43) (1992) (where evidence insufficient to prove that trafficking in cocaine committed in the manner averred in the indictment but sufficient to support conviction for possession of cocaine, case remanded with direction to enter conviction and sentence for that offense).

3. Levin contends that the trial court erred by denying his motion for continuance, which was filed on the same day as the resentencing hearing, to allow him additional time to obtain the trial transcript from his prior counsel. Finding no error, we affirm.

“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends ofjustice may require.” OCGA § 17-8-22; Cunningham v. State, 244 Ga. App. 231, 232 (1) (535 SE2d 262) (2000). Although Levin states that the transcript was necessary “for an adequate and effective review of the sentencing issues involved,” he does not contend or show that he was harmed at the resentencing hearing by not having access to the transcript and there can be no reversible error where no harm is shown. See Beene v. State, 202 Ga. App. 857 (1) (415 SE2d 545) (1992); see also Cunningham, 244 Ga. App. at 232-233 (1) (where appellant failed to show how transcript would have assisted in his defense, there is no reversible error).

Decided October 1, 2015

James K. Luttrell, for appellant.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       Levin was found guilty but mentally ill of kidnapping with bodily injury and making harassing phone calls.

        Garza was superseded by statute for offenses occurring after July 1, 2009. See OCGA § 16-5-40 (b); Thomas v. State, 289 Ga. 877, 879 (2), n. 3 (717 SE2d 187) (2011).

       See Division 1.