author: Ellington, Chief Judge.

text:
    A12A0014, A12A0015.
    YANG v. SMITH et al.; and vice versa.
    (728 SE2d 794)
   Ellington, Chief Judge.

Following a trial in this medical malpractice action, the jury returned a verdict in favor of defendants Stephanie Smith, M.D., and Gwinnett Anesthesia Service, P.A. (“GAS”). In Case No. A12A0014, the plaintiff, Chong Yang, appeals from the final judgment and from the denial of her motion for new trial, contending that the trial court abused its discretion in denying her motions in limine to exclude certain testimony of two expert witnesses for the defense. In Case No. A12A0015, Dr. Smith and GAS cross-appeal, contending that the trial court abused its discretion in denying their motion to exclude certain testimony of one of Yang’s expert witnesses, as well as in excluding the testimony of one of their defense witnesses. For the following reasons, we affirm the judgment in Case No. A12A0014, and dismiss as moot the appeal in Case No. A12A0015.

The standard of review for all four of the enumerated errors is the same. “The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the trial court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” (Punctuation and footnote omitted.) Carter v. Smith, 294 Ga. App. 590, 591 (1) (669 SE2d 425) (2008). Further, “[w]e review a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Punctuation and footnote omitted.) Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

Viewed in favor of the jury’s verdict, the evidence shows that, in 2005, Yang suffered an injury to the area around her left eye. In 2006, after being treated for severe facial pain by several other physicians and alternative practitioners and after trying numerous prescription medications without success, she sought treatment from Dr. Gurudat Setty at GAS. Dr. Setty initially diagnosed Yang with trigeminal neuralgia, and he recommended a trigeminal nerve block injection near a facial nerve as an initial effort to block the pain and to verify the diagnosis. According to Dr. Setty, if the trigeminal nerve block did not relieve Yang’s pain, then other diagnostic and treatment modalities would have to be pursued to discover and address other potential causes of the pain, such as atypical facial pain, a tumor, multiple sclerosis, lupus, sarcoidosis, or disk herniation, among others. Dr. Setty’s partner, Dr. Smith, performed the trigeminal nerve block injection on June 14, 2006. Dr. Smith recommended that Yang return for a second trigeminal nerve block injection in two weeks.

Although the first trigeminal nerve block reduced Yang’s pain, it also caused some swelling and side effects, and, when Yang saw Dr. Smith at the two-week follow-up appointment, she refused to have the second nerve block injection. Because Yang was still experiencing some pain, Dr. Smith broadened her working diagnosis to include atypical facial pain, which can be the result of at least 20 different disease processes, including trauma, stroke, cervical spine problems, immunologic disorders, herpes zoster and other infections. According to Dr. Smith, in attempting to diagnose the actual cause of atypical facial pain, it is often necessary to try different types of injections to see whether they are effective in treating the pain. Consistent with that approach, Dr. Smith performed a stellate ganglion injection; she also gave Yang a prescription for pain medication. On September 15, 2006, Yang called Dr. Smith’s office and reported that she had had significant improvement in her pain, but was still experiencing some pain and “heaviness” around her left eye and her mouth. Dr. Smith renewed Yang’s pain medicine prescriptions and instructed her to return to the clinic in four weeks.

When Yang saw Dr. Smith in mid-October, she reported having ongoing facial pain and swelling, as well as moderate depression, anxiety and panic attacks. Dr. Smith performed a cervical epidural steroid injection, during which she inserted the needle between Yang’s C5 and C6 vertebrae. According to Dr. Smith and a nurse who observed the procedure, Yang was sedated but semi-conscious, was able to move her hands and feet, and was able to respond to questions throughout the procedure.

Yang went home after the procedure, but, a few hours later, she began experiencing severe pain, could not move her arm and was unable to walk. She was transported to Gwinnett Medical Center by ambulance. An MRI revealed that Yang had a lesion inside her cervical spinal cord that extended from the C2 to the C7 vertebrae. Over a few months, the lesion gradually shrank to a “focal lesion” between the C5 and C6 vertebrae, the area where Dr. Smith had performed the cervical epidural injection. While Yang’s symptoms improved over time, she continued to experience severe pain, to have problems with her left hand, and to have difficulty walking.

Yang filed this medical malpractice suit against Dr. Smith and GAS, contending, inter alia, that Dr. Smith had caused the lesion to develop by improperly injecting medication directly into her spinal cord during the cervical injection and that such act violated the standard of care. Dr. Smith and GAS defended the claim by presenting, in addition to other evidence, the expert witness opinion testimony of Dr. Owen Samuels, who testified that Yang’s theory of causation was not supported by the evidence and was very unlikely. Dr. Samuels also offered alternative explanations for the cervical lesion which he deemed much more probable than Yang’s theory, including the opinion that a cervical inflammatory lesion was present before Dr. Smith’s cervical injection, that it was the result of an unrelated and previously undiagnosed autoimmune disorder, and that it may have been irritated by the cervical injection.

The jury rendered a defense verdict, and Yang filed a motion for new trial, challenging, inter alia, the trial court’s decision to admit the testimony of Dr. Samuels and Dr. Setty. The trial court denied the motion, concluding that Dr. Samuels’ testimony was admissible because he had applied a scientifically reliable method, differential diagnosis, to the evidence before concluding that it was unlikely that the cervical injection had caused the lesion and that, instead, it was more likely that Yang’s symptoms were caused by the irritation of a pre-existing lesion. As for Dr. Setty, the court concluded that the physician’s testimony was admissible because he was one of Yang’s treating physicians and had developed his opinions about her treatment during such care — not in anticipation of litigation. Thus, the defense was not required to disclose his opinions prior to trial, and his opinion testimony regarding the applicable standard of care was admissible. In Case No. A12A0014, Yang appeals from the court’s order.

Case No. A12A0014

1. Yang contends that the trial court abused its discretion in denying her motion in limine to exclude the expert witness testimony of Dr. Samuels. Yang does not contend that Dr. Samuels, a neurologist, was unqualified to be an expert witness on the issue of causation. Instead, Yang challenges the admissibility of his testimony, arguing that it lacked the requisite relevance and scientific reliability to be admissible as an expert opinion under OCGA § 24-9-67.1 (b) and Daubert v. Merrell Dow Pharmaceuticals. Specifically, Yang argues that Dr. Samuels allegedly failed to consider her complete medical history; failed to affirmatively testify as to the exact cause of the lesion, instead of simply ruling out possible causes; improperly ignored other possible causes of her pre-injection symptoms; and relied upon a “leap in faith” in concluding that the lesion must have existed prior to the cervical injection, given that the lesion had not been discovered or diagnosed prior to the injection. She also contends that Dr. Samuels’ causation testimony was inadmissible because she has never been diagnosed with an autoimmune disorder.

Under OCGA § 24-9-67.1 (b) (2010), a qualified expert witness may offer his or her opinion testimony to help the jury understand the evidence or determine a fact in issue if

(1) [t]he testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case.

In determining whether the expert testimony meets the requirements of OCGA § 24-9-67.1 (b), Georgia’s courts may look to federal authority, including Daubert. OCGA § 24-9-67.1 (f); Bd. of Regents &c. of Ga. v. Casey, 300 Ga. App. 850, 851 (686 SE2d 807) (2009). Daubert, in turn, states that the trial court has “the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.” Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. at 597 (IV). See Hankla v. Jackson, 305 Ga. App. at 393 (1) (b) (“Applying the Daubert standard, expert testimony is admissible if it is both relevant and reliable.”) (punctuation and footnote omitted).

As noted above, the trial court in this case ruled that Dr. Samuels’ testimony was admissible because he had applied a scientifically reliable method, differential diagnosis, to the evidence before reaching his conclusions about the issue at the heart of this dispute, i.e., the cause(s) of Yang’s cervical lesion and symptoms.

A differential diagnosis is a method by which a physician determines what caused a patient’s symptoms. The physician considers all relevant potential causes of the symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and a thorough case history. This type of analysis meets the requirements of Daubert if the expert makes scientifically valid decisions when he determines which potential cause should be ruled in or ruled out as the cause in the specific case. Whether to allow such testimony is made on a case-by-case basis by the [trial] court.

(Punctuation and footnotes omitted.) Bd. of Regents &c. of Ga. v. Casey, 300 Ga. App. at 852-853 (2). See also Hawkins v. OB-GYN Assoc., 290 Ga. App. 892, 893 (1) (660 SE2d 835) (2008) (“[A] ‘differential diagnosis’... is ‘a patient-specific process of elimination that medical practitioners use to identify the most likely cause of an injury from a list of possible causes.’ ”) (citation omitted).

The record in this case shows that Dr. Samuels is an experienced, board-certified neurologist, the director of the Neuroscience Critical Care Division at Emory Healthcare, and the leader of the hospital’s monthly morbidity and mortality conferences, during which the hospital’s medical staff reviews complications that result in patients’ injuries or deaths. In fact, Dr. Samuels is the only expert witness (other than Yang’s treating physicians) to testify in this case who is a neurologist. He has extensive experience in diagnosing and treating atypical facial pain, regional pain disorder, multiple sclerosis and other nervous system autoimmune diseases, traumatic injuries to the nervous system, strokes, and complications from nervous system treatments, including those arising from an improper injection into the spinal cord. He also routinely interprets CT and MRI scans during the diagnosis and treatment of his patients.

At trial, Dr. Samuels testified that he had been retained by the defense to determine what may have caused Yang’s neurologic issues both before and after the cervical epidural injection. He reviewed Yang’s medical history and treatment records, her CT and MRI scans, and the depositions of her treating physicians and expert witnesses before concluding that, in his opinion, her cervical lesion was not the result of an injection of medication into Yang’s spinal cord. Dr. Samuels explained that, if Dr. Smith had injected medication into Yang’s spinal cord in the cervical area, Yang would have immediately experienced extremely severe pain, would have screamed and/or jerked reflexively on the table, and would have had significantly impaired breathing and difficulty moving her limbs and walking. According to Yang’s medical records and the testimony of Dr. Smith and the nurse assisting with the procedure, none of these complications were evident during the procedure, nor did Yang experience a sudden change in her vital signs that would have indicated she was in extreme pain. In fact, as noted above, Yang was sedated but semi-conscious and able to respond to questions during the procedure. In addition, Dr. Samuels testified that, if medication had been injected into Yang’s spinal cord, the fluid would not have spread out (as Yang’s lesion appears on her MRI), but would have instead created a bulging pocket of fluid within the cord. The fluid would have then killed the spinal cord’s cells, which is inconsistent with subsequent MRIs showing that Yang’s lesion became significantly smaller over time.

Dr. Samuels also offered alternative explanations for the presence of the cervical lesion, all of which he deemed much more probable than Yang’s theory. Among these explanations was his opinion that, to a reasonable degree of medical probability, a cervical inflammatory lesion was present before Dr. Smith’s cervical injection, and the lesion had been caused by a previously undiagnosed autoimmune disorder, such as multiple sclerosis, lupus, sarcoidosis, or similar conditions. According to Dr. Samuels, such inflammation in the upper spinal cord can cause, among other problems, “severe, unrelenting, difficult-to-treat facial pain,” which is consistent with the symptoms Yang was experiencing before the cervical injection. He opined that, while Yang’s spinal cord lesion may have been irritated by the cervical injection, the injection did not cause the lesion, as Yang contends.

(a) The record shows that Dr. Samuels, in developing his opinions about the cause(s) of Yang’s cervical lesion and her symptoms, applied his medical knowledge and experience with spinal cord injuries and diseases, autoimmune disorders, and other neurological maladies to information obtained from Yang’s medical history and records, CT and MRI scans, and the deposition testimony of Yang’s treating physicians and expert witnesses. Then, during his deposition and at trial, Dr. Samuels explained in detail how and why he eliminated certain possible causes, found others to be unlikely, and ultimately concluded that the most likely explanation, based on his experience and the evidence before him, was that Yang had a pre-existing inflammatory lesion that had resulted from an undiagnosed autoimmune disorder. Thus, the evidence authorized the trial court to conclude that Dr. Samuels “applied a scientifically reliable method, differential diagnosis, to the evidence before concluding that it was unlikely that the cervical injection had caused the lesion and that, instead, it was more likely that Yang’s symptoms were caused by the irritation of a pre-existing lesion.” Consequently, the admission of Dr. Samuels’ expertopinion testimony was proper under OCGA § 24-9-67.1 (b), and Daubert, and we discern no abuse of discretion in the trial court’s denial of Yang’s motion in limine to exclude such testimony. See Bd. of Regents &c. of Ga. v. Casey, 300 Ga. App. at 852-853 (1), (2).

(b) Yang argues that, for his testimony to be admissible, Dr. Samuels not only had to “rule out” potential causes, but also had to “rule in” or prove his own theory of causation. The cases upon which Yang relies for this argument, however, are inapplicable here because they address only the admissibility of the testimony of the plaintiffs expert witnesses, i.e., what those witnesses must show in order to meet the plaintiffs burden of proving, as part of her case-in-chief, that the defendant’s negligence caused her injuries. Accordingly, Yang’s argument lacks merit.

(c) Moreover, we note that Dr. Samuels’ testimony about the possibility that Yang had a pre-existing, undiagnosed autoimmune disorder, like multiple sclerosis or lupus, or that her lesion was caused by something other than an injection of medicine into her spinal cord was consistent, if not cumulative, with the testimony of another defense witness, Dr. Richard Rauck, an expert in anesthesia and pain management. Accordingly, even if the admission of Dr. Samuels’ testimony was error, it was harmless to the extent that it was merely cumulative of Dr. Rauck’s testimony. See Flowers v. Union Carbide Corp., 271 Ga. App. 438, 442-443 (3) (a) (610 SE2d 109) (2005) (The improper admission of evidence is harmless when it is cumulative of other admissible evidence.).

2. Yang challenges the denial of her motion in limine to exclude the testimony of Dr. Setty regarding the applicable standard of care for administering the cervical epidural injection, because Dr. Smith had failed to provide pretrial notice that she intended to present Dr. Setty’s expert opinion at trial, as required by OCGA § 9-11-26 (b) (4) (A) (i). Under that statute, a party may

require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

The statute, however, “applies only to experts whose knowledge of the facts and opinions held were acquired or developed in anticipation of litigation or for trial, and not to an expert witness who is in fact an actor or observer of the subject matter of the suit.” (Punctuation and footnote omitted.) Stewart v. Odunukwe, 273 Ga. App. 380, 381 (615 SE2d 223) (2005). Thus, OCGA§ 9-11-26 (b) (4) (A) (i) does not apply to a physician whose knowledge and opinions arose from his own involvement in the plaintiffs medical care. Id. at 381-382.

Further, “[t]he purpose of identifying witnesses [before trial] is to eliminate the possibility of surprise to each party.” (Footnote omitted.) Stewart v. Odunukwe, 273 Ga. App. at 381. See Kamensky v. Stacey, 134 Ga. App. 530, 532 (215 SE2d 294) (1975) (“[W]here the complaining party cannot legitimately claim surprise, either because he knew of the existence of the witness or had equal means of knowing, it is not error to fail to invoke the sanctions of postponement, mistrial, barring the witness, etc.”) (citations omitted).

(a) In this case, Dr. Setty was the first physician to examine Yang at GAS, after she had been referred to the facility in 2006. After Dr. Setty examined Yang and reviewed the numerous medications and treatments she had tried for pain relief without success, he made a preliminary diagnosis and an initial treatment plan that called for an injection near Yang’s facial nerve to see if it alleviated the pain, with other procedures to follow, if necessary. Therefore, because Dr. Setty was an expert witness whose knowledge and opinions about Yang’s medical conditions and treatment needs arose from his involvement as one of her treating physicians (as opposed to an expert witness whose knowledge of the facts and opinions held were solely acquired or developed in anticipation of litigation or for trial), his testimony did not fall within the ambit of OCGA § 9-11-26 (b) (4) (A) (i). Stewart v. Odunukwe, 273 Ga. App. at 381-382.

(b) Further, the appellees argue that, even if they should have disclosed Dr. Setty as an expert witness prior to trial, Yang was not prejudiced. We agree.

(i) The record shows that, in the consolidated pretrial order, Yang listed Dr. Setty as a witness whom she may call at trial in her case-in-chief. Therefore, Yang cannot legitimately argue that she was surprised by Dr. Smith’s decision to call Dr. Setty as a witness at trial. Kamensky v. Stacey, 134 Ga. App. at 532.

(ii) In addition, any error in admitting Dr. Setty’s testimony was harmless, as it was consistent with and cumulative of the testimony of Dr. Richard Rauck, an expert in anesthesia and pain management. See Flowers v. Union Carbide Corp., 271 Ga. App. at 442-443 (3) (a).

Accordingly, we conclude that Yang has failed to demonstrate any reversible error in the trial court’s decision to admit the testimony of Dr. Samuels and Dr. Setty in this case. The trial court’s judgment on the jury’s verdict is, therefore, affirmed.

Decided June 12, 2012

Reconsideration denied June 28, 2012

Anderson, Tate & Carr, Render C. Freeman, Lawrence B. Schlachter, for appellant.

Carlock, Copeland & Stair, Wade K. Copeland, Lee S. Atkinson, for appellees.

Case No. A12A0015

Pursuant to our decisions in Divisions 1 and 2, supra, the cross-appeal, Case No. A12A0015, is dismissed as moot.

Judgment affirmed in Case No. A12A0014. Appeal dismissed in Case No. A12A0015.

Dillard, J., concurs. Phipps, P. J., concurs in judgment only.

        Almond v. McCranie, 283 Ga. App. 887, 888 (643 SE2d 535) (2007).

       “The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” (Punctuation and footnote omitted.) Bd. of Regents &c. of Ga. v. Casey, 300 Ga. App. 850 (686 SE2d 807) (2009).

       509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).

       We note that the Georgia General Assembly repealed OCGA § 24-9-67.1 in 2011, effective January 1, 2013. Ga. L. 2011, p. 99, § 2.

       Notably, these are the same materials that Dr. Stephen Abram and Dr. Gordon Sze, Yang’s expert witnesses in anesthesiology and neuroradiology (respectively), reviewed before arriving at their opinions about the possible causes of Yang’s spinal cord lesion.

       See, e.g., Hankla v. Jackson, 305 Ga. App. at 392-395 (1) (b) (i)-(iii) (This Court concluded that the trial court did not abuse its discretion in admitting the testimony of the plaintiff’s expert witnesses, because the experts based their opinions of causation on the particular facts of the case and their prior knowledge of the specific injury at issue and, in the process, ruled out other potential causes.); Hawkins v. OB-GYN Assoc., 290 Ga. App. at 893-895 (1) (This Court concluded that the testimony of the plaintiff’s expert witness was insufficient to meet the plaintiff’s burden of proving causation, because the witness offered only his bare assumption that the alleged negligence was “more probably than not” the cause of the injury and testified that the injury could have been the result of other causes.).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A12A0106.
    CAPELLAN v. THE STATE.
    (729 SE2d 602)
   Boggs, Judge.

Following a bench trial, Omar Capellán was convicted of trafficking in marijuana, possession of marijuana with intent to distribute, and giving a false name and date of birth. The trial court denied Capellan’s motion for new trial, and he appeals, seeking review of the trial court’s denial of his motion to suppress. For the following reasons, we reverse.

“On appeal, we accept the trial court’s findings on disputed facts and credibility issues unless clearly erroneous. However, where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo.” (Citations and punctuation omitted.) Boyd v. State, 315 Ga. App. 256 (1) (726 SE2d 746) (2012).

The facts here are undisputed. The record reveals that an officer patrolling on Interstate 85 noticed a flatbed wrecker carrying a van run onto the shoulder of the road “across the fog line approximately three times.” The officer also noticed that the wrecker’s New Jersey license plate was illegible because of “grease or dirt or some kind of black smudges all over the tag.”

The officer stopped the wrecker and asked the driver, Capellán, for his driver’s license. When Capellán stated that he did not have his driver’s license, the officer asked him for his name and date of birth. Capellán told the officer “that he was 26 years old and born in 1974,” and that his name was “Sammy Ba[d]away.” The officer testified that he asked Capellán “a couple of more times” about his date of birth and age, because the “math didn’t add up,” and that Capellán “kept sticking to that he was 26 years old and born in 1974.” When the officer called police dispatch to inquire about Capellan’s license, the name and date of birth given by Capellán came back as “not on file.” Capellán then told a second officer on the scene that his driver’s license was behind the seat of his wrecker and that it might be suspended. Capellán was then arrested for giving a false name and date of birth.

When the first officer went into the cabin of the wrecker to look for Capellan’s license, he smelled “a fairly strong odor of raw or green marijuana.” This officer testified that he was trained in marijuana recognition. The officer did not “locate any marijuana,” but did locate a valid Florida driver’s license and a suspended New Jersey driver’s license, showing Capellan’s real name and date of birth.

The officer testified and the video recording reveals that after Capellán was secured in the back of the police vehicle, he began “inventorying” the wrecker and the van. The officer retrieved the keyless entry for the van from the key ring in the ignition of the wrecker, unlocked it, and opened the cargo area of the van. In the back of the van, the officer found two large duffel bags containing clear plastic bags of “a green leafy substance [the officer] suspected to be marijuana.” Apolice department evidence technician who qualified at the bench trial as an expert in the analysis of narcotics determined that the duffel bags found in the van contained approximately 29 pounds of marijuana. Following the hearing on the motion to suppress, the trial court denied Capellan’s motion concluding that the case “presents a strong case for impoundment and inevitable discovery.”

On appeal, Capellán argues that the trial court erred in denying his motion to suppress because the State failed to show that the searches of the locked van and the duffel bags were lawful. Specifically, he argues that there was no evidence of a police department policy with respect to the opening of closed containers — here the locked van and duffel bags — encountered during the inventory search and no other exceptions to the warrant requirement exist. The State, on the other hand, asserts that the police conduct in having a lawful basis for impounding the wrecker (and the van it was carrying) was reasonable and that the marijuana in the van would have been inevitably discovered during a subsequent inventory search of the van following impoundment. Thus, impoundment, inventory, and inevitable discovery are inextricably tied here.

The first step in our analysis requires us to determine whether the “impoundment was reasonably necessary under the circumstances.” Grizzle v. State, 310 Ga. App. 577, 579-580 (1) (713 SE2d 701) (2011). “Cases supporting the State’s right to impound a vehicle incident to the arrest of a person in control of it are founded on a doctrine of necessity.” (Citation, punctuation and footnote omitted.) Dover v. State, 307 Ga. App. 126, 128 (1) (a) (704 SE2d 235) (2010). The record shows that Capellán was the sole occupant of an out-of-state vehicle governed by the Department of Transportation and required a special commercial driver’s license (CDL) to drive. The wrecker was parked on.an exit ramp of an interstate highway at night. The officer acknowledged that he did not offer Capellán an opportunity to make his own arrangements to remove the wrecker from the side of the highway ramp, explaining “I knew nobody would have been able to get here for a reasonable amount of time from where he was from.” Based upon information available to the officer on the scene — that Capellan’s only valid driver’s license was issued in the state of Florida, that the van was being moved from Florida to Virginia, the New Jersey license plates on the wrecker, and the need for the holder of a CDL to drive the wrecker — the officer’s decision to impound the wrecker was entirely reasonable. See Wiley v. State, 274 Ga. App. 60, 61 (1) (616 SE2d 832) (2005) (impoundment reasonable where U-Haul truck stopped at night created potential hazard and driver had suspended license); Colzie v. State, 257 Ga. App. 691, 692 (2) (572 SE2d 43) (2002).

Having determined that impoundment of the vehicle was reasonably necessary, we must now determine whether the officer’s search of the van, following Capellan’s arrest, was a valid inventory search.

The United States Supreme Court has held that an inventory search may be “reasonable” under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause. In this respect, an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, but instead the policy or practice governing inventory searches should be designed to produce an inventory. Pursuant to these principles, . . . the first purpose of an inventory search is the protection of the owner’s property while it remains in police custody and the second purpose is the protection of the police against claims or disputes over lost or stolen property. And . . . this Court recognized that taking an inventory of the contents in a closed container in the trunk of a vehicle serves both of these purposes.

(Citations and punctuation omitted.) Grizzle, supra, 310 Ga. App. at 580 (2). “[Inventories conducted by the police pursuant to standard police procedures are deemed to be reasonable under the Fourth Amendment.” (Citation, punctuation and footnote omitted.) Id.; see also Colorado v. Bertine, 479 U. S. 367, 374, n. 6 (107 SC 738, 93 LE2d 739) (1987). In Clay v. State, 290 Ga. 822 (725 SE2d 260) (2012), the Supreme Court of Georgia noted “that the inventory of containers must be in accordance with established inventory procedures.” (Citation and punctuation omitted.) Id. at 830 (2) (A). Accord Florida v. Wells, 495 U. S. 1, 4-5 (110 SC 1632, 109 LE2d 1) (1990) (affirming decision to suppress search based upon absence of evidence of policy to open closed containers during inventory search).

In this case, Capellán argues that the inventory search of the locked van and the duffel bags inside it was not proper in the absence of evidence of the police department’s policy on inventory searches. The record contains no evidence about the police department’s policy or procedures on inventory searches. Rather, both officers simply testified that their searches of the wrecker, van, and its contents were inventory searches pursuant to the impoundment. The police department may well have had such a reasonable inventory procedure. However, there is no evidence in the record to establish the existence of such a policy or procedure. Without evidence of such policy it is difficult, if not impossible, to conclude that the inventory was conducted pursuant to such policy and not simply a “rummaging” to discover incriminating evidence. The inventory search here was therefore unreasonable under the Fourth Amendment. See Wells, supra; compare Grizzle, supra, 310 Ga. App. at 580 (2) (State presented evidence of police department policy regarding inventories and officer who conducted inventory testified that he did so according to that policy).

The State asserts that we should nonetheless uphold the search under the doctrine of inevitable discovery. This assertion also fails, however, based upon the lack of evidence about the police department’s inventory policy. Clay, supra, 290 Ga. at 830 (2) (A) (rejecting claim of inevitable discovery based upon lack of evidence regarding routine inventory procedures).

Decided June 28, 2012.

Bernard S. Brody, for appellant.

J. Bradley Smith, District Attorney, Erica P. Shepley, Assistant District Attorney, for appellee.

Because the inventory search here was unreasonable because of a lack of evidence of police policy, the trial court erred in denying Capellan’s motion to suppress. We are therefore constrained to reverse.

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

       Before his arrest, Capellán told officers that he was coming from Loganville, Georgia, was headed to Virginia, and that he had picked up the van on the back of the wrecker from Clearwater, Florida. But after he was arrested and placed in the back of the police vehicle, Capellán told officers that he picked up the van in Loganville.

       We note that our courts have held that an inventory may be conducted at the scene of arrest or at the police station. See Carson v. State, 241 Ga. 622, 623 (1) (247 SE2d 68) (1978).


text:
    A12A0201.
    CROSSING PARK PROPERTIES, LLC et al. v. JDI FORT LAUDERDALE, LLC.
    (729 SE2d 605)
   Boggs, Judge.

Crossing Park Properties, LLC and Joan and Glen Hammer appeal from the trial court’s order granting JDI Fort Lauderdale, LLC’s (“JDI”) motion to dismiss their complaint. In their sole claim of error on appeal, the appellants contend that the trial court erred by concluding that it lacked personal jurisdiction over JDI. For the reasons explained below, we agree and reverse.

In Georgia, defendants filing a motion to dismiss based upon a lack of personal jurisdiction bear the burden of proof. Home Depot Supply v. Hunter Mgmt., 289 Ga. App. 286 (656 SE2d 898) (2008).

Where as here, the motion was decided on the basis of written submissions alone, any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction, and the appellate standard of review is nondeferential.

(Citations, punctuation and footnotes omitted.) Id.

Construed in favor of the appellants, the record shows that they filed suit against JDI based upon its actions in connection with a 2006 real estate transaction. It is undisputed that JDI is an Illinois limited liability company that is not and never has been authorized to conduct business in Georgia.

In 2005, Condominium Ventures of America, Inc. (“Condominium Ventures”), a Georgia corporation, and its associates approached Glen Hammer about an opportunity to purchase property in Florida, refurbish it, form it into condominium units, and then resell the individual condominium units for a profit. According to the complaint,

[Condominium Ventures and its associates] proposed that Glen Hammer participate in the transaction by arranging the loans used to purchase and refurbish the Florida Property. In exchange, [Condominium Ventures and its associates] proposed that Glen Hammer would be paid a fee.

In April 2006, 2000 Ocean Drive, LLC (“2000 Ocean”), a Florida limited liability company, was created “for the purpose of being the purchaser of the Florida Property and the primary borrower of funds needed for the purpose of purchasing and refurbishing of the Florida Property.” 2000 Ocean was formed by the Schmitts, Harris, Condominium Ventures, and TKW, a Georgia limited liability company.

Bank of America provided an initial loan of $13,500,000 for the down payment on the purchase of the Florida property and other expenses associated with the project. It was an interim loan designed to be replaced by additional financing to be obtained in December 2006 to complete the purchase of the property as well as the condominium conversion. Glen Hammer guaranteed the Bank of America loan in exchange for a promise by 2000 Ocean to pay him a fee. 2000 Ocean’s promise was guaranteed by Condominium Ventures and its associates.

In October 2006, Mark Rowell, a broker with offices in Alpharetta, Georgia, began exchanging e-mails with JDI’s senior vice president seeking a loan to complete the purchase of the Florida property. In one of these exchanges, Rowell mentioned that Glen Hammer would be willing to sign “if needed,” but the other participants in the deal would prefer to do it without him because “his signature costs them $1M.” According to JDI’s vice president, “JDI did not initiate contact with Mr. Hammer, nor did it seek out Mr. Hammer’s guaranty.” Although the Hammers and Crossing Park were not directly involved in negotiating the terms of the loan, Hammer’s guaranty ultimately became part of the transaction.

On December 1, 2006, JDI entered into a $40 million loan with 2000 Ocean for the purchase price of the property. The primary collateral for the loan was the Florida property. On the same day, Archer Capital Fund, L.P. gave a second priority $11 million loan to 2000 Ocean. All of the documents in connection with these loans were signed in Florida except those executed by the Hammers and Crossing Park in Georgia. The JDI loan guaranty and the JDI subordination agreement documents were sent to Hammer in Georgia from JDI’s counsel in Florida, and the record includes e-mail exchanges between Hammer and JDI’s Florida counsel. The guaranty document drafted by JDI provides that notices shall be provided to Glen Hammer at his Norcross, Georgia address.

According to JDI’s vice president, the loan guaranty signed by Hammer “terminated by its terms shortly after the closing” and “JDI has never sought any recovery from Mr. Hammer.” Additionally, “JDI never held a security interest in any of Plaintiffs’ property.” In the subordination agreement signed by Hammer, he agreed “to subordinate to JDI his interest in money owed to him by 2000 Ocean.”

The obligors on the Archer second priority loan included 2000 Ocean, Crossing Park Properties, Joan Hammer, and TKW. Collateral for this loan included the Florida property, condominiums owned by Joan Hammer located in Georgia, an office park owned by Crossing Park located in Georgia, and Glen Hammer’s interest in Crossing Park.

On the same day that the Hammers and Crossing Park executed their documents in connection with the JDI and Archer loans, JDI, Archer, and 2000 Ocean signed an additional subordination agreement (“Undisclosed Agreement”). The Hammers and Crossing Park contend that they were not informed of the Undisclosed Agreement which “altered the landscape of the deal” and “drastically and materially increased” their personal risk in the event of default. It is undisputed that this document was executed in Florida.

In December 2007, both the JDI and Archer loans were in default. In July 2008, JDI, 2000 Ocean, Condominium Ventures and its associates entered into an agreement to give JDI a deed to the Florida property in lieu of foreclosure. According to the Hammers and Crossing Park, the effect of this deed in conjunction with the Undisclosed Agreement left them as “the target for repayment of the Archer loan.” They also assert that the value of the Florida property at the time the deed was given to JDI “exceeded the outstanding balances of the JDI loan and the Archer loan.” Finally, they assert that as a result of the Undisclosed Agreement between JDI and Archer, Archer foreclosed upon the Georgia condominiums owned by Joan Hammer and the Georgia office park owned by Crossing Park.

On April 29, 2009, Glen Hammer filed suit in Florida against JDI, as well as other parties, and initially asserted only conversion and accounting claims against JDI in connection with three condominium units owned by Glen Hammer. On July 2,2009, the Hammers and Crossing Park filed a suit in Georgia against JDI, Archer, 2000 Ocean, Condominium Ventures, TKW, the Schmitts, and the estate of Kenneth Harris in connection with the December 1, 2006 transaction, asserting that the defendants had committed fraud by failing to tell them about the Undisclosed Agreement. In a later amended complaint to the Georgia action, the Hammers and Crossing Park sought to rescind all documents executed by them in connection with the transaction based upon fraud, including all documents executed in connection with the JDI loan. They also asserted that they were entitled to damages based upon JDI’s constructive fraud and breach of implied duty of good faith and fair dealing. On January 7, 2010, Glen Hammer amended his Florida complaint to add Archer as a defendant and also asserted for the first time a fraudulent inducement claim against JDI in connection with the Undisclosed Agreement.

JDI moved to dismiss the Georgia action based upon its contention that it does not have sufficient minimum contacts in Georgia for a Georgia court to exercise personal jurisdiction over it. The trial court granted the motion based upon its conclusion “that the fortuitous nature of where Plaintiffs executed the documents is not sufficient to confer ‘minimum contacts’ over JDI. There is no evidence that the location of Plaintiffs’ execution of the documents in Georgia was directed or initiated by JDI.” It also found that the documents executed by Glen Hammer in Georgia were “at best only tangentially related to the Plaintiffs’ core claim, which concerns the JDI-Archer forbearance agreement. Neither party is claiming a breach of the above agreements.” Finally, the trial court found that because Glen Hammer had already initiated a suit in Florida against JDI asserting similar allegations, “it would not work a hardship upon him or the affiliated plaintiffs to pursue any remaining claims in the Florida litigation should they wish to do so.”

In their sole enumeration of error on appeal, the Hammers and Crossing Park assert that the trial court erred by concluding it lacked personal jurisdiction over JDI. We agree.

Georgia’s Long Arm Statute provides that a court may exercise jurisdiction over a nonresident if he personally, or through an agent, “[tjransacts any business within this state.” OCGA § 9-10-91 (1); Paxton v. Citizens Bank &c., 307 Ga. App. 112, 115 (704 SE2d 215) (2010). “[Bjecause this statutory language would expand the personal jurisdiction of Georgia courts beyond that permitted by constitutional due process,” the Supreme Court of Georgia has construed it to reach “only to the maximum extent permitted by procedural due process.” (Citations and punctuation omitted.) Innovative Clinical &c. Svcs. v. First Nat. Bank &c., 279 Ga. 672, 675 (620 SE2d 352) (2005). In determining the limits of due process, we must apply the following three-part test:

[Jjurisdiction exists on the basis of transacting business in this state if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.

(Citations and punctuation omitted) Amerireach.com v. Walker, 290 Ga. 261, 269 (2) (719 SE2d 489) (2011). We consider

the first two factors to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. If such minimum contacts are found, we move to the third prong of the test to consider whether the exercise of jurisdiction is reasonable — that is, to ensure that it does not result solely from random, fortuitous or attenuated contacts.

(Citation and punctuation omitted.) Paxton, supra, 307 Ga. App. at 116.

With regard to the first prong of the test, our Supreme Court has held that “nothing in subsection (1) [of the Long Arm Statute] requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State. [Cit.]” Innovative Clinical &c. Svcs., 279 Ga. at 675. And the assertion of long-arm jurisdiction over nonresident defendants can be based upon business conducted through postal, telephonic, and Internet contacts. Paxton, supra, 307 Ga. App. at 116, 119 (1); First Nat. Bank &c. v. Innovative Clinical &c. Svcs., 280 Ga. App. 337, 338 (634 SE2d 88) (2006). Moreover, “[a] single event maybe a sufficient basis if its effects within the forum are substantial enough. Such a result may obtain whether or not the non-resident is physically present in the state.” (Citation, punctuation and footnote omitted.) Robertson v. CRI, 267 Ga. App. 757, 760 (601 SE2d 163) (2004). With regard to guaranties,

our inquiry is not limited to the execution of the guaranty contracts alone, as the contract is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction. It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

(Citation, punctuation and footnotes omitted.) Id. at 761.

In this case, the record shows that JDI negotiated the transaction through a broker in Georgia, decided to require a guaranty from a Georgia resident, and sent loan documents to Glen Hammer in Georgia for the purpose of availing itself of his financial resources in Georgia to consummate the closing of the underlying transaction. Significantly, its decision to send closing documents to Georgia without including the Undisclosed Agreement lies at the heart of Hammer’s claims against JDI. Hammer contends he would not have entered into the transaction had he known about the Undisclosed Agreement, making the effect of JDI’s conduct in sending incomplete documents to Glen Hammer in Georgia substantial, particularly when one of the consequences of the transaction as a whole was the foreclosure of real property in Georgia. And Hammer also seeks in his complaint to set aside the documents he executed in Georgia. Based upon all of these facts, we conclude that the first two prongs of the minimum contacts test have been fulfilled. First Nat. Bank, supra, 280 Ga. App. at 338; Paxton, supra, 307 Ga. App. at 116-121 (1) & (2).

Our final step in the application of the three-part test is to determine whether the exercise of jurisdiction by a Georgia court in this case comports with traditional notions of fairness and substantial justice. Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.

Decided June 28, 2012.

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., Stephen M. Forte, William W. Maycock, for appellants.

Robbins, Ross, Alloy, Belinfante & Littlefield, Richard L. Robbins, Jean-Alain Schneider, Cohen, Pollock, Merlin & Small, Gus H. Small, Jr., Paul N. Monnin, Mark E. Grantham, for appellee.

(Citations and punctuation omitted.) Noorani v. Sugarloaf Mills &c., 308 Ga. App. 800, 804 (2) (c) (708 SE2d 685) (2011) (full concurrence in Division 2). In this case, JDI’s conduct in negotiating with a Georgia broker and sending documents to a Georgia resident for execution in Georgia provided fair warning that it might be subject to suit in Georgia, particularly when its decision to omit the Undisclosed Agreement from the documents sent to Georgia forms the central basis of the claims against it. “Georgia has an interest, as does every state, in providing its own citizens with a convenient forum for redressing injuries wrought by nonresidents who have sought the state’s citizens out for the purpose of business gain. [Cit.]” First Nat. Bank, supra, 280 Ga. App. at 338. And finally, the record shows that the particular claims at issue in this lawsuit were first brought in Georgia, not in Florida as alleged by JDI. See Booksing v. Holley, 210 Ga. App. 869, 872 (2) (437 SE2d 857) (1993).

Based upon our conclusion that the trial court had personal jurisdiction over JDI pursuant to OCGA § 9-10-91 (1), we reverse its order granting JDI’s motion to dismiss.

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

       This is not the first appearance of these parties before this court. In Crossing Park Properties v. Archer Capital Fund, 311 Ga. App. 177 (715 SE2d 444) (2011), we reversed the trial court’s grant of summary judgment to JDI’s co-defendant, Archer Capital Fund (“Archer”), and two of its related affiliates.

       Georgia residents William Schmitt, Thomas Schmitt, and the late Kenneth Harris owned and operated Condominium Ventures.

       The guaranty provided that “if no Event of Default has occurred and at such time the guaranteed debt (as defined below) is less than the product of (A) the number of Unsold Units (as defined [in the Loan Agreement]) multiplied by (B) $315,000, then this Guaranty shall be terminated and the undersigned shall he released from all obligations hereunder.”

       Joan Hammer and Crossing Park are not parties to the Florida action.


author: DOYLE, Presiding Judge.

text:
    A12A0583, A12A0584.
    REININGER et al. v. O’NEILL et al.; and vice versa.
    (729 SE2d 587)
   DOYLE, Presiding Judge.

After Peter and Diana Reininger purchased a home from Richard and Elaine O’Neill, they discovered that the basement leaked water. The Reiningers filed this action against the O’Neills, alleging fraudulent misrepresentation, negligent concealment, and negligent repair. The trial court granted in part the O’Neills’ motion for summary judgment. In Case No. A12A0583, the Reiningers challenge the trial court’s partial grant of summary judgment on their claims of fraudulent misrepresentation and negligent repair, while in Case No. A12A0584, the O’Neills contend that the trial court should have granted their renewed motion for summary judgment on the Rein-ingers’ remaining claim of negligent concealment. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that in late May 2006, the Reiningers contracted with the O’Neills to buy the O’Neills’ 16-year-old home, which had no previous owners besides the O’Neills. Prior to this time, Mr. O’Neill, in an effort to abate water entry into his basement at times of heavy rainfall, dug a six to seven foot hole in an area where a retaining wall in the rear of the home intersected the brick facade of the home. Mr. O’Neill discovered an area of separation, which he attempted to close using a bead of sealant and a bead of hydraulic cement. Mr. O’Neill deposed that further leakage did not occur prior to the sale of the home in the summer of 2006.

The purchase and sale agreement signed by the parties contained an “As-Is Clause”:

Property Sold “As Is”. All parties agree that Property is being sold “as is,” with all faults including but not limited to lead-based paint and lead-based paint hazards and damage from termites and other wood destroying organisms. Seller shall have no obligation to make repairs to property;

and a Merger Clause:

Binding Effect, Entire Agreement, Modification, Assignment: This Agreement constitutes the sole and entire agreement between the parties and shall be binding upon the parties and their successors, heirs, and permitted assigns. No representation, promise or inducement not included in this Agreement shall be binding upon any party hereto. This Agreement may not be amended, modified, or waived except by the written agreement of Buyer and Seller.

The agreement also included two attachments to the purchase and sale agreement form, including the Property Disclosure Statement, on which Mr. O’Neill had checked ‘Tes” to the following questions: “(a) Has there been any water leakage, water accumulation, or dampness within the basement, crawl space [,] or other part of the main dwelling at or below grade?”; and “(b) Have any repairs been made to control any water or dampness problems in the basement, crawl space, or other parts of the main dwelling at or below grade?” The O’Neills did not supply any detail about these answers in the section for “additional explanations or disclosures.” Mr. Reininger, however, deposed that Mr. O’Neill verbally disclosed a water pipe leak in the basement, that Mr. O’Neill verbally disclosed that he had previously experienced a leak and repaired another area in the basement closet, and that Mr. O’Neill verbally disclosed that he had previously experienced a leak around a crack in the basement wall, which he repaired.

Although the couples closed on June 30, 2006, the Reiningers did not move into the property until May 2007, and during the interim, they visited the property infrequently. There were times during the year after closing that the Reiningers noticed the accumulation of water in the basement after a rain near a utility door. The Reiningers had a home inspection after signing the purchase and sale agreement, which inspection showed that the utility door and one garage door had water damage on the doors’ exteriors and would need replacement.

In early April 2008, the Reiningers notified the O’Neills that

[s]ince purchasing the house from you we have come to realize the extent of damage to the property was greater than described. . . . We would appreciate a few moments of your time so we may discuss resolving these matters. Should you wish, you may provide us with the name and policy information of your homeowner’s insurance so we can contact them directly. . . .

Approximately one month later, the Reiningers filed suit in magistrate court, which suit later was transferred to state court, where an amended complaint was filed in March 2009. In February 2010, the Reiningers declared in court that they intended to rescind the contract and filed an amendment to their complaint.

In its order granting in part the O’Neills’ renewed motion for summary judgment, the trial court found that because the Reiningers failed to rescind the contract, they were bound by the terms therein. Thus, the merger clause contained in the purchase and sale agreement barred the Reiningers’ fraudulent misrepresentation claim. With regard to the Reiningers’ negligent repair claim, the trial court determined that it failed as a matter of law because the O’Neills were not builders/sellers of the home. Nevertheless, with regard to the Reiningers’ negligent concealment claim, the trial court determined that a question of fact existed, and it denied the O’Neills’ motion for summary judgment as to this claim.

Generally speaking,

[cjaveat emptor (“Let the buyer beware”) is a common-law doctrine which serves as the general rule with regard to the purchase of realty. The long-standing recognition of the existence of an exception to the application of caveat emptor where the seller’s fraud induced a purchaser of realty to buy the land makes caveat emptor unavailable as a defense to a seller, whether a builder or non-builder, when the seller engages in fraud, whether it be “active fraud” or “passive concealment fraud.” Thus, where the seller of a house knows the house has serious defects and fails to disclose the defects to the buyer who is unaware of the defects and could not have discovered them in the exercise of due diligence, the suppression of the facts constitutes fraud to which caveat emptor is not a viable defense.

Case No. A12A0583

1. Negligence

The Reiningers first claim that the trial court erred by finding as a matter of law that they could not maintain a claim of negligent repair against the O’Neills. We disagree.

In Cendant Mobility Financial Corp. v. Asuamah, the Supreme Court of Georgia explained the Worthey v. Holmes

exception to the application of caveat emptor to a negligence action against the builder/seller of a dwelling affixed to real estate: where a dwelling is sold containing latent defects which the builder in the exercise of ordinary care knew or should have known and which the buyer could not have reasonably discovered in the exercise of ordinary care, it is only right that the builder should be liable in negligence.

Based on this exception, the home-buyer in Cendant Mobility alleged a claim for negligent repairs made to a pre-existing home against the nonbuilder/seller of the home. The Supreme Court declined to extend the Worthey exception to the general rule of caveat emptor beyond claims against builders/sellers, explaining that barring fraud or breach of contract “it is inappropriate to found a cause for negligence on mere defective or inadequate conditions in a used house, about which the buyer was not overtly or passively misled. Caveat emptor is still the general rule.”

Here, the trial court determined that the Reiningers’ claim of negligent repair against Mr. O’Neill failed as a matter of law based on the holding of Cendant Mobility. The Reiningers contend that the fact that Mr. O’Neill himself performed the repairs distinguishes their claim from that of the plaintiff in Cendant Mobility because the defendant in that case hired a company to perform the repairs. Nevertheless, because the O’Neills were not builders/sellers of the dwelling purchased by the Reiningers, the trial court did not err when it granted summary judgment on this claim.

2. Fraud

Traditionally two actions have been available to a buyer in which to sue a seller for alleged misrepresentation in the sale. The buyer could affirm the contract and sue in contract for breach or he could seek to rescind the contract and sue in tort for alleged fraud and deceit. But.. . affirming the sales contract does not eliminate a tort claim by the buyer that the sale was fraudulently induced. A suit for damages by the defrauded party for the fraud committed is not a suit for the violation of the contract, but is one for a tort and involves affirmance of the contract.... It can not be said that merely affirming the contract by the defrauded party will necessarily deprive him of the right to sue for damages for the fraud inducing him to make the contract, as the right to affirm the contract and the right to sue for damages for the fraud coexist.
Moreover [,] there are differences between claims based on misrepresentations and those based on fraudulent concealment. When a buyer claims the seller made oral or written misrepresentations outside the sales contract to induce the sale, and elects to affirm the sales contract and sue, the same contractual defenses apply whether the suit is brought as a breach of contract or as a tort claim for fraud. In either case, because the sales contract was affirmed, the buyer is bound by the terms of the contract and subject to defenses asserted by the seller based on the contract. Accordingly, . . . entire agreement clauses in affirmed sales contracts are commonly asserted as a defense by sellers to estop buyers from claiming they relied on misrepresentations made outside the contract. On the other hand, where a buyer affirms the sales contract and sues claiming, not that the seller made extracontractual oral or written misrepresentations about the purchased property, but that the seller actively or passively concealed damage or defects in the purchased property, there is no basis for using an entire agreement clause in the sales contract as a defense to the suit.

(a) The Reiningers argue that the trial court erred by granting summary judgment as to their fraudulent misrepresentation claim. We disagree.

The trial court correctly determined that the sale contract’s merger clause precluded the Reiningers’ claim that the O’Neills committed fraudulent misrepresentation concerning the water leakage into the basement. As this court has repeatedly explained,

[t]he entire agreement clause operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement. [The Reiningers are], therefore, barred from claiming that [they] relied on an alleged misrepresentation not contained within the agreement.

The fraudulent misrepresentation claim is thus defeated because the Reiningers cannot show that they relied upon any prior assurances regarding the state of the basement from prior documents provided by or assertions made by the O’Neills.

While the Reiningers maintain that the trial court erred by finding that their fraud claim was barred by their failure to properly attempt to rescind the contract prior to filing suit, this argument is without merit. As the Supreme Court of Georgia recently explained in Novare Group v. Sarif,

[i]t is well-settled law in Georgia that a party who has the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument based on oral representations that differ from the terms of the contract. Statements that directly contradict the terms of the agreement or offer future promises simply cannot form the basis of a fraud claim for the purpose of cancelling or rescinding a contract. In fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.

Here, the contract clearly states that the “Property is being sold in its present condition, without warranties or guarantees of any kind by Seller or Brokers. No representations concerning the condition of Property are being relied upon by Buyer except as disclosed herein or stated in the Purchase and Sale Agreement.” Thus, any allegedly fraudulent statements concerning the state of the property made prior to the contract are not “the type of fraud that allows a party to cancel or rescind a contract” because the Reiningers have not alleged that the merger clause or as-is clause within the contract was concealed from them prior to signing.

Accordingly, the trial court properly granted summary judgment to the O’Neills on the Reiningers’ fraudulent misrepresentation claim.

Case No. A12A0584

(b) The O’Neills contend that the trial court erred by denying their motion for summary judgment with regard to the Reiningers’ fraudulent concealment claim because the O’Neills did not build the home and the contract contained a valid merger clause. We agree and reverse.

Based on the facts presented here, the Reiningers’ fraudulent concealment claim fails. First, the O’Neills indicated on the disclosure statement that the water leakage had occurred in the basement and that repairs had been made thereto. Moreover, Mr. Reininger deposed that Mr. O’Neill verbally disclosed that multiple leaks had occurred in the basement and that he had attempted to repair them. The only allegation presented by the Reiningers that the O’Neills concealed the leak is that Mr. O’Neill removed pre-existing pegboard from a wall and cut a hole in the drywall to investigate the leak, thereafter replacing the drywall and pegboard. But this act was simply part of the disclosed repair and is not evidence of concealment.

Finally, as the Supreme Court of Georgia explained in Sarif, because the

[Reiningers] did not properly elect rescission as a remedy, and more importantly, were not entitled to rescission as a remedy, they are bound by the terms of their agreement [, which clearly indicated they were purchasing the property as is and identified prior water entry into the basement]. Therefore, [the Reiningers] cannot maintain their claims for fraud in the inducement based on active concealment [or] negligent misrepresentation . . . ,

Decided June 28, 2012

Garcia & Bradley, Nicholas P. Garcia, for appellants.

McNally, Fox & Grant, Patrick J. Fox, Meredith F. McClure, for appellees.

Accordingly, the trial court erred by denying the O’Neills’ motion for summary judgment as to this claim, and we hereby reverse.

Judgment affirmed in part and reversed in part.

Andrews and Boggs, JJ., concur.

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

       (Citation and footnotes omitted.) Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818, 819-820 (684 SE2d 617) (2009).

       Id.

       249 Ga. 104 (287 SE2d 9) (1982), affirming Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919) (1981).

       (Punctuation omitted.) Cendant Mobility, 285 Ga. at 820, citing Holmes, 159 Ga. App. at 272.

       See Cendant Mobility, 285 Ga. at 820.

       (Punctuation omitted.) Id. at 821-822.

       See Cendant Mobility, 285 Ga. at 821-822 (“There is probably no such thing as a perfect house and to hold the homeowner liable for any such defect would be to hold all homeowners liable for every flaw and defect, when in fact the purchaser knows or is placed upon reasonable notice that the house is not new and, almost certainly, not perfect.”) (punctuation omitted). Cf. Morgan Constr. Co. v. Kitchings, 110 Ga. App. 599, 600 (139 SE2d 417) (1964) (holding that a plaintiff cannot maintain a nuisance claim based upon damage to a house resulting from a defect constructed into the house that was concealed from the plaintiff by the builder and/or the seller; instead, the applicable causes of action are fraud against the seller and/or negligent construction against the builder).

       (Citations and punctuation omitted.) Browning v. Stocks, 265 Ga. App. 803, 805-806 (2) (595 SE2d 642) (2004).

       (Citations and punctuation omitted.) Peck v. Lanier Golf Club, 315 Ga. App. 176, 182 (b) (726 SE2d 442) (2012).

       290 Ga. 186 (718 SE2d 304) (2011).

       (Citations omitted.) Id. at 188-189 (2).

       Id. at 189 (2).

       Id. at 190 (3). Additionally, the record does not contain evidence that the Reiningers attempted to rescind the contract prior to serving the lawsuit on the O’Neills, and as the Supreme Court of Georgia has recently restated, if “a party elects to rescind the contract, he must do so prior to filing the lawsuit.” Id. at 188 (1).

        Grossman v. Brown & Webb Builders, 255 Ga. App. 897, 899 (1) (567 SE2d 116) (2002) (“A defendant who does not bear the burden of proof at trial need not produce evidence or disprove the plaintiff’s claim on summary judgment. Rather, the defendant meets its summary judgment burden by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the plaintiff’s case.”) (punctuation and footnotes omitted).

       290 Ga. at 190 (3).


author: Adams, Judge. MCFADDEN, Judge,

text:
    A12A0710.
    GUNTER v. THE STATE.
    (729 SE2d 597)
   Adams, Judge.

Sheila Lashunn Gunter appeals her conviction of aggravated assault and terroristic threats. She contends the evidence was insufficient to sustain the conviction of aggravated assault, that the court erred by failing to charge the jury on a lesser included offense, and that her counsel was ineffective.

On appeal, we do not assess the weight of the evidence or the credibility of witnesses. 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

Construed in favor of the verdict, the evidence shows that Agatha Dadzie finished her overnight shift at Walmart, walked to her car in the parking lot on a dark and drizzly morning, got into her car, and accidentally backed into a car being driven by Gunter. Dadzie exited her car and told Gunter they should call the police, but Gunter refused and an argument ensued. Gunter said, “No, if you call the police, I will kill you.” Dadzie saw Gunter pull something black out of her purse, which she thought might be a gun. Gunter threatened Dadzie’s life several more times, and Dadzie ran back inside the store screaming while Gunter chased her with one arm raised and the object in her hand. Gunter eventually appeared at the entrance to the store with something in her hand and said to Dadzie, “I’ll get rid of you.” Dadzie demonstrated for the jury how Gunter held the black object up at about head level. Dadzie identified State’s Exhibit 1 as the object that was in Gunter’s hand. It is a large knife and sheath. Pictures from a security camera video of the incident show Gunter carrying what appears to be a knife in a sheath. The video corroborated Dadzie’s account of Gunter following her with an object in her hand and her arm raised.

Other witnesses corroborated that Gunter came into the entrance of the store appearing very angry and agitated, running toward Dadzie and screaming, with her hand drawn back like she had an object in it. One witness testified that the object looked like a knife, she identified State’s Exhibit No. 1 as the knife, and she testified that Gunter was holding it up near her head when she came in the store. On cross-examination, she admitted that she may have only seen the knife sheath. After the police arrived and handcuffed Gunter, that same witness heard the defendant say, “Bitch, I’ll be back for you.” An officer testified that Gunter threatened his life, too.

The police arrived, and the officer who arrested Gunter testified that after speaking with Dadzie, he approached Gunter and asked her if she hada knife on her person or in her car, which Gunter denied. Gunter refused to obey the officer’s request to stop walking back toward her car, and when she opened the door, the officer detained her and saw a long knife between the center console and the driver’s seat; the knife was in its sheath. The knife and sheath were introduced as State’s Exhibit No. 1.

1. Gunter was charged with committing assault with a deadly weapon “which, when used offensively against a person [,] is likely to or actually does result in serious bodily injury, by chasing said victim with the knife. . . .” See OCGA § 16-5-21 (a) (2). One form of assault occurs when a person “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20.

Here, the evidence shows that Gunter threatened Dadzie in a way that put her in reasonable apprehension of immediately receiving a violent injury. She threatened Dadzie’s life, pulled out a dark object that Dadzie thought was a gun, and chased Dadzie with the object held over her head in a threatening manner. Thus, she committed an assault. Further, the object proved to be a deadly weapon. Thus, she committed aggravated assault.

Gunter argues the evidence was insufficient to support the conviction of aggravated assault because there was no testimony that anyone saw the blade of the knife, suggesting that at all times that she was chasing the victim with the knife held up over her head, it was in the sheath. She relies on Ware v. State, 289 Ga. App. 860 (658 SE2d 441) (2008). Based on the facts of Ware, we held that there was insufficient evidence to show use of a deadly weapon where a woman “hit her husband once with the ‘non-business end’ of a box cutter and inflicted a minor cut to his face and an injury to the inside of his mouth” and where there was “no evidence that the blade or knife of the box cutter was ever exposed or that [the wife] ever threatened her husband with an exposed blade.” But Ware is physical precedent only. See Court of Appeals Rule 33 (a). And second, that case addressed an object that is not per se a deadly weapon. Id. at 864. And “[f]or objects not considered deadly weapons per se, the State has the burden of showing that the circumstances under which the object was used made it a deadly weapon. [Cit.]” In the Interest of T. W., 280 Ga. App. 693 (634 SE2d 854) (2006). Here, the jury was authorized to conclude that the large knife held by Gunter, which itself was introduced into evidence, was a deadly weapon and that it could be easily removed from its sheath.

Gunter further argues there was no testimony of Gunter’s proximity to the victim and therefore insufficient evidence that the threat of injury was imminent. But the facts show that Gunter pulled out the weapon and chased the victim with it. See generally Davis v. State, 184 Ga. App. 230, 231 (1) (361 SE2d 229) (1987) (question of whether victim was “out of striking range” of deadly weapon was for jury).

2. Gunter contends the trial court erred by failing to charge on the lesser included offense of simple assault. At the charge conference, the court, the prosecutor, and defense counsel were all in agreement that a charge on simple assault should be given. But the court eventually instructed defense counsel to ask Gunter whether she wanted the charge or whether she was inclined to assert an all-or-nothing defense. Defense counsel objected to this procedure, but the court insisted. Defense counsel then consulted with Gunter and reported that she did not wish to have the charge given on the lesser included offense. Defense counsel told the court that his advice to her was that the charge should be given. The court did not give the charge. On appeal, Gunter, with new counsel, contends it was an abuse of discretion not to give the requested charge based solely upon her personal desire. At the new trial hearing, defense counsel admitted that after the court decided not to give the charge based on Gunter’s decision, she acquiesced and did not further object.

Under these circumstances, appellate review of the court’s decision not to give the charge has been waived. First, “absent a written request to charge, the failure to instruct the jury on a lesser included offense is not error.” (Footnote omitted.) Durrance v. State, 250 Ga. App. 185,187 (3) (549 SE2d 406) (2001). See also Chancey v. State, 258 Ga. App. 319, 320 (2) (b) (574 SE2d 383) (2002). Second, trial counsel admitted that she acquiesced and did not further object to the court’s decision to not give the charge, which is reflected in the record where trial counsel stated that she had no objections following the charge to the jury. Thus, appellate review of the issue has been waived. See, e.g., Watkins v. State, 306 Ga. App. 769, 770 (2) (702 SE2d 904) (2010).

3. Finally, Gunter contends that trial counsel was ineffective by her failure to preserve the same issue for appeal.

To prevail on her claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced her to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. [Cits.]

Coggins v. State, 275 Ga. 479, 481-482 (3) (569 SE2d 505) (2002).

We find no error. In connection with a claim of ineffective assistance of counsel, this court has held a defendant “cannot blame trial counsel for a decision he himself made over counsel’s objection.” Alvarado v. State, 271 Ga. App. 714, 719 (3) (610 SE2d 675) (2005). In Alvarado, the defendant waived a trial by jury over his attorney’s advice that to do so would be unwise. Here, Gunter waived the charge of a lesser included offense over her attorney’s advice. See also Rose v. State, 258 Ga. App. 232, 235 (2) (a) (573 SE2d 465) (2002) (not ineffective assistance where defendant decided to introduce prior drug conviction). Cf. Gabler v. State, 177 Ga. App. 3, 7 (2) (338 SE2d 469) (1985) (failure to object to bad character evidence not ineffective assistance where testimony was duplicative of testimony given by a witness whom defendant insisted upon calling over his trial counsel’s advice).

Judgment affirmed.

Barnes, R J., Mikell, P. J., Doyle, P. J., Miller and Blackwell, JJ., concur. McFadden, J., concurs in part and dissents in part.

MCFADDEN, Judge,

concurring in part and dissenting in part.

I agree that the evidence is sufficient to sustain the conviction. But when the trial court refused to respect trial counsel’s authority to invoke Gunter’s right to a charge on the lesser included offense and interfered with the attorney/client relationship, I think he committed harmful error. I therefore concur in Division 1 of the majority opinion, but respectfully dissent from Divisions 2 and 3.

1. As to the scope of a criminal defendant’s right to control trial counsel’s decisions, our Supreme Court has drawn a bright line.

(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; and (iii) whether to testify in his or her own behalf, (b) The decisions on what witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.

(Punctuation omitted; emphasis supplied.) Van Alstine v. State, 263 Ga. 1, 2-3 (426 SE2d 360) (1993) (quoting ABA Standards for the Administration of Criminal Justice (1974), The Defense Function § 5.2). See also Reid v. State, 235 Ga. 378, 379 (219 SE2d 740) (1975). In Van Alstine our Supreme Court expressly rejected the proposition that “whether to seek submission to the jury of lesser included offenses” should be removed from the class of decisions that are “the exclusive province of the lawyer.” Van Alstine, supra at 3.

[W]e do not agree with the [ABA] commentary that the decision whether to seek submission to the jury of lesser included offenses rises to the same level as the decision to plead guilty or not guilty to charged offenses so as to require the defendant alone to make that decision. A person accused of committing a crime is required by law upon arraignment to answer the indictment or accusation read to him. OCGA § 17-7-93 (a). No such mandate is placed upon the decision whether to seek the submission to the jury of lesser included offenses. Rather, that decision is often based on legal complexities only the most sophisticated client could comprehend, not unlike the tactical decisions involved regarding the assertion of technical defenses. [Cit.]

Id. Consequently in refusing to respect trial counsel’s authority to invoke Gunter’s right to a charge on the lesser included offense of simple assault, the trial court erred.

I cannot agree with the majority that, as a result of that error, Gunter received “greater protection.” On the contrary, the trial court deprived Gunter of the effective assistance of her trial counsel. The circumstances here confirm our Supreme Court’s observation about the complexities of tactical decisions like this one. As detailed in the majority opinion, there was an abundance of evidence that — screaming and carrying a large knife — Gunter chased the victim from the parking lot back into the store. But the knife remained in its sheath. Acquittal was highly improbable, but the jury might well have opted for the lesser included offense. The trial court did Gunter no favor when he invited her to overrule her experienced trial counsel and adopt an all-or-nothing strategy.

2. The majority holds that trial counsel waived the issue of the trial court’s failure to give the charge and that Gunter cannot assert ineffective assistance as to that waiver because it implemented a decision Gunter made herself over trial counsel’s objection. I do not disagree. But, the error asserted on appeal is not the trial court’s failure to give the lesser included charge, as such. The trial court correctly acknowledged that Gunter was entitled to that charge — if she wanted it. Rather the error asserted is the trial court’s underlying refusal to respect trial counsel’s authority to invoke Gunter’s right to that charge and the trial court’s interference with the attorney/client relationship.

It is true that the enumerations of error specify the court’s failure to charge on the lesser included offense. Nevertheless,

[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, ... what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding . . . that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.

OCGA § 5-6-48 (f). Here, it is apparent from the record, as well as appellant’s brief, that the error sought to be asserted was the trial court’s refusal to recognize trial counsel’s authority to insist on the charge and his interference with the attorney/client relationship. Once the trial court had so ruled, and through that ruling had elicited from Gunter a decision not to seek the charge, trial counsel was prevented from requesting the charge or objecting to the failure to give it.

Decided June 28, 2012.

Maryann F. Blend, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.

When the trial court, after initially agreeing to give the lesser included charge, announced that he would not respect trial counsel’s authority to invoke Gunter’s right to it, a lengthy colloquy ensued. During that colloquy trial counsel objected energetically and unambiguously. As to the details of her interactions with Gunter, trial counsel was appropriately reticent at trial. But at the new trial hearing she testified:

Ms. Gunter and I did not have a lot of discussions during the trial. She and I did not really get along. She didn’t really want to talk to me about her case. She didn’t want to go over the evidence. Her quote was: Do your job.
I was doing my job.

Because the trial court — over vigorous objection — prevented trial counsel from doing her job, we should reverse and remand for a new trial.


text:
    A12A0721.
    ELROD v. THE STATE.
    (729 SE2d 593)
   DOYLE, Presiding Judge.

Billy Scott Elrod was convicted of cruelty to a child in the first degree. He appeals, alleging that the trial court erred by overruling his objection to portions of the testimony of one of the State’s expert witnesses and by refusing to charge the jury on the lesser included offense of simple battery. He also contends that trial counsel provided ineffective assistance by failing to call an expert witness to rebut the testimony of the State’s expert witness. Finding no error, we affirm the judgment of conviction but remand the case to the trial court for a hearing on Elrod’s ineffective assistance of counsel claim.

Viewed in favor of the verdict, the record shows that Elrod and his co-defendant, Katherine Scott Barlow, began a romantic relationship in approximately November 2010. Elrod lived on the ground floor of a two-story, single-family residence in Cartersville and rented out most of the top floor, reserving the right to use the bathroom and kitchen on the top floor. The entire downstairs part of the house featured a cement floor, including Elrod’s bedroom, where he kept a crib for his six-month-old son, who would occasionally visit. Barlow lived with her mother a short distance away, but by December, she began spending nights at Elrod’s house and introduced Elrod to her children, A. M. and L. M., who were three years old and twenty months old, respectively, on the date of the incident.

On January 18, 2011, Barlow and Elrod put L. M. in the crib for a nap. The mattress for the crib was set at the highest level, which setting allowed L. M. to stand with the crib railing only reaching his chest. Barlow then went upstairs to take a shower, and when she returned approximately 15 minutes later, she found L. M. sitting upright on the couch with Elrod. Elrod claimed that he was in the adjacent room when he heard L. M. cry out, and when he went to check on the child, he found L. M. had fallen out of the crib, with his leg lodged in the crib railing and his face on the cement floor. Barlow did not see any noticeable injuries on L. M. at the time, although he indicated that his leg was uncomfortable and seemed less active than usual.

The following morning, L. M. continued to show signs of unusual inactivity, and Barlow first noticed signs of bruising on his face. Barlow gave him Tylenol all day, but did not call the child’s pediatrician until that evening, at which time she was advised to take the child to an urgent care facility. Rather than doing so, she took him to the pediatric clinic the following afternoon — January 20 — where Dr. Tammy Williams observed swelling in L. M.’s leg, advised Barlow that his leg might be fractured, instructed her that L. M. needed to go to Scottish Rite Hospital in Atlanta, and suggested that he be transported there in an ambulance. Barlow declined, however, instead choosing to transport L. M. from Elrod’s house to her mother’s house and pack L. M.’s things.

In the meantime, Dr. Williams reported L. M.’s injuries and need for immediate treatment to the Department of Family and Children Services (“DFCS”), who in turn sent a representative, Jenna Cliver, to Barlow’s mother’s house to ensure that L. M. received the necessary care. Oliver followed Barlow, Elrod, and the two children to Scottish Rite Hospital, where L. M. was seen by the doctors, diagnosed with a transverse right tibia fracture, and fitted with a cast.

The following day, Dr. Jordan Greenbaum from the Center for Safe and Healthy Children at Children’s Healthcare of Atlanta conducted her own examination of L. M. and observed numerous facial, chest, and abdominal bruises, many of which were inconsistent with normal accidental toddler bruising. Dr. Greenbaum also conducted separate interviews with Barlow and Elrod in order to obtain their recollections of the event, and she noticed several inconsistencies in the details provided by each of them. In her opinion, Elrod’s explanation did not adequately account for the bruises on L. M.’s body or the type of fracture L. M. had sustained to his leg, and she concluded that L. M.’s injuries had resulted from physical abuse. Dr. Greenbaum also noted that her review of L. M.’s x-rays revealed a healing left fibula fracture as well. At trial, Dr. Greenbaum was introduced as an expert witness and testified as to the examinations she performed and the conclusions she reached. She also was asked to consider a hypothetical scenario resembling the version of events provided by Elrod in order to judge the likelihood of L. M.’s accidental injuries in such a scenario.

Elrod was charged with aggravated battery (Count 1) and first degree cruelty to a child (Count 2). Following deliberations, the jury found Elrod not guilty of aggravated battery and guilty of cruelty to a child in the first degree, and the trial court sentenced him to twenty years in prison, to serve ten. This appeal followed.

1. Elrod asserts that the trial court erred by overruling his objection to hypothetical questions posed by the State to Dr. Green-baum during redirect examination. We disagree.

After L. M. was discharged from the hospital, a DFCS worker went to Elrod’s house and took photographs of the crib from which L. M. allegedly fell; the photographs were admitted at trial. Barlow clarified, however, that the mattress in the photographs was on the lowest setting; at the time of L. M.’s injuries, the mattress was set “on the very top level” such that the crib railing came to his chest when he stood in the crib. During re-direct examination of Dr. Greenbaum, the State asked her to “imagine” the placement of L. M.’s foot and ankle through the rail, in the position provided by Elrod in his version of the incident and the child’s face on the concrete floor. Elrod objected on the grounds that Dr. Greenbaum had not viewed the actual scene and that the photographs did not accurately depict the crib at the time of the incident. The trial court overruled the obj ection, and Dr. Greenbaum went on to testify that in her opinion, the child’s injuries were inconsistent with Elrod’s version of events.

It is well-settled that “an expert witness may testify about opinions based on facts within . . . her personal knowledge or facts admitted into evidence at trial and presented to the expert in the form of hypothetical questions.” And “where an expert bases [her] opinion on facts within the bounds of evidence... the testimony is admissible notwithstanding the fact that the expert never went to the scene at all. . . ,”

In the instant case, Dr. Greenbaum was asked to consider a scenario based on Elrod’s version of the facts and photographs of the crib in order to determine whether L. M.’s injury was consistent with Elrod’s story. Because the hypothetical was supported by the evidence, the trial court did not err by allowing Dr. Greenbaum to respond to the hypothetical.

2. Next, Elrod argues that the trial court erred by failing to charge the jury on simple battery as a lesser included offense of first-degree cruelty to a child. We disagree.

“Atrial judge never errs in failing to instruct the jury on a [lesser included] offense where there is no written request to so charge.” In this case, there are no written requests to charge in the record on appeal. Accordingly, we find no reversible error in the trial court’s failure to charge the jury on simple battery.

Pretermitting Elrod’s failure to make a written request, however, the trial court did not err by failing to charge the jury on simple battery because the evidence did not authorize such a charge. “It cannot be found to be error to refuse to charge a lesser included offense if the jury would be unauthorized to return that verdict based on the evidence.” Aperson commits simple battery by either “[intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another” or “[intentionally causing] physical harm to another.” In this case, Elrod did not testify, and his explanation to Barlow and Dr. Greenbaum was that L. M. fell out of the crib. Therefore,

[e]ven assuming that simple battery as set forth in either subsection (1) or subsection (2) of OCGA § 16-5-23 (a) can be a lesser included offense of cruelty to children in the first degree, it is not in this case because there was simply no evidence to support the offense of simple battery. ... If the jury believed that an accident occurred, no battery was committed. However, if the jury accepted the State’s evidence, then it was authorized to find that [Elrod intentionally] assaulted the child, thereby maliciously causing the child cruel and excessive physical. . . pain. In the circumstances, as here, where the evidence demonstrates commission of the completed offense as charged or that there was no criminal offense committed, the trial court is not required to charge on a lesser included offense.

3. Finally, Elrod contends that he received ineffective assistance of counsel at trial because counsel failed to call an expert witness. Trial counsel did not file a motion for new trial, but instead filed a notice of appeal on September 7, 2011. Appellate counsel subsequently filed an entry of appearance on October 3, 2011. Thus, this appeal is Elrod’s first opportunity to raise an ineffective assistance of trial counsel claim.

“Generally, when the appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue.” In this case, Elrod’s argument that he was prejudiced by trial counsel’s failure to call an expert cannot be decided as a matter of law based on the existing record.

Accordingly, we remand this case to the trial court for a hearing and determination on the ineffective assistance claim. If the trial court concludes that trial counsel was ineffective, [Elrod] is entitled to a new trial. On the other hand, if the trial court finds that [Elrod] received effective assistance, he may appeal the trial court’s ruling within 30 days thereafter.

Decided June 28, 2012.

Gerard P. Verzaal, for appellant.

T. Joseph Campbell, District Attorney, Jana W. Allen, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

Andrews and Boggs, JJ., concur.

       OCGA§ 16-5-70 (b).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Barlow entered a guilty plea to second-degree cruelty to children and is not a party to this appeal.

       The trial court included a jury charge of second-degree cruelty to children (OCGA § 16-5-70 (c)) as a lesser included offense of first-degree cruelty to children.

        Peters v. State, 268 Ga. 414, 415 (1) (490 SE2d 94) (1997). See also Ga. Dept. of Transp. v. Baldwin, 292 Ga. App. 816, 820 (4) (665 SE2d 898) (2008).

        Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981).

       See Ga. Dept. of Transp., 292 Ga. App. at 820-821 (4).

       (Punctuation omitted.) Gadson v. State, 264 Ga. 280, 281 (2) (444 SE2d 305) (1994).

       See id.

        Moore v. State, 283 Ga. 151, 154 (2) (656 SE2d 796) (2008).

       OCGA § 16-5-23 (a) (1).

       OCGA§ 16-5-23 (a) (2).

       (Citation omitted.) Moore, 283 Ga. at 154 (2).

       See Williams v. Moody, 287 Ga. 665, 666 (1) (697 SE2d 199) (2010) (“The pre-appeal opportunity is ‘available’ when the convicted defendant is no longer represented by the attorney who represented him at trial.”).

       (Punctuation omitted.) McMahon v. State, 308 Ga. App. 292, 295-296 (3) (707 SE2d 528) (2011).

        Bynum v. State, 300 Ga. App. 163, 168 (7) (684 SE2d 330) (2009).