text:
    A12A0278.
    TORRES v. ELKIN.
    (730 SE2d 518)
   Dillard, Judge.

In this personal-injury action arising from a motor-vehicle accident, Jason Torres appeals the trial court’s order granting Cassandra Lee Elkin’s motion to enforce settlement and denying his motion for partial summary judgment. Torres argues that Elkin’s insurance company’s purported acceptance was neither identical to the terms of his offer nor unconditional and unequivocal. For the reasons discussed infra, we conclude that the parties failed to enter into an enforceable settlement agreement and thus reverse the trial court’s order.

The record in this case shows that on March 27, 2008, Torres and Elkin were involved in a motor-vehicle accident, which resulted in Torres suffering injuries so severe that he incurred over $500,000 in medical expenses. Elkin’s vehicle was covered by an insurance policy issued by Infinity Standard Insurance Company (“Infinity”). After the accident, Infinity offered to settle Torres’s bodily-injury claims for $25,000 in exchange for Torres executing an enclosed release and agreeing to satisfy any medical liens. Torres’s attorney rejected the offer and returned the check for $25,000, indicating that his client had not yet made a decision about whether to settle the case. Subsequently, Infinity resent a check for $25,000 and proposed a new settlement agreement, according to which Infinity would settle Torres’s claims in exchange for Torres’s execution of a limited-liability release.

Torres’s attorney rejected Infinity’s proposed offer in a letter dated February 12, 2010, and made a counteroffer to settle Torres’s claims if certain conditions were met by “the end of the month.” Torres’s attorney’s letter stated in relevant part:

We will need to [sic] a release of your insured that reserves Mr. Torres’ rights to recover uninsured motorist benefits and that does not contain any language about how my client has not relied upon any representations by your side in signing the release. If you get me that described release with a check for $250.00 and all of the statements and insurance documents requested above by the end of the month, then my client will sign the release. Please note that acceptance may only occur by my timely receipt of all of the requested items.

The “documents requested above” consisted of the following: (1) any recorded statements from eyewitnesses to the accident; (2) recorded statements obtained by Infinity from Elkin; (3) verification under oath that the previously offered $25,000 represented the full amount of available bodily-injury insurance coverage; (4) a copy of each insurance policy issued by Infinity with a statement under oath from a corporate officer or claims manager verifying that the documents were complete and accurate copies of each policy; and (5) a release that reserved Torres’s rights to recover uninsured-motor-vehicle benefits and that did not contain any language that Torres “had not relied upon any representations” by Infinity.

Infinity faxed Torres’s attorney a letter on February 22, 2010, asking whether the $250 represented an additional property-damage claim. On February 24, 2010, Infinity wrote Torres’s attorney, advising him that Infinity was preparing a response to his February 12, 2010 letter and asking whether his client would agree to satisfy any medical liens arising from the accident.

In a separate letter dated February 24, 2010, Infinity responded to the February 12 offer to settle Torres’s claims, noting that Torres’s attorney had already received the requested affidavits, a check for $25,000, and the declarations page. Infinity also attached a certified copy of Elkin’s liability-insurance policy, Elkin’s recorded statement, a check for $250, and a third proposed limited-liability release. The letter from the Infinity representative further stated, “Please note that I have included indemnification language in the release due to the hospital lien notices we have received. I have not received a response to the question in my letter faxed to you yesterday in which I asked if you intended to protect the liens.” Infinity went on to emphasize its “trust that your office will satisfy any liens arising out of this matter.” Infinity’s enclosed release required Torres to indemnify Infinity for all claims for liens arising out of the accident and to pay all reasonable costs in defending against liens, including attorney’s fees. At the close of the letter, Infinity asked to be informed

immediately “if any items are deficient in any manner” and emphasized Infinity’s “intent to comply with all conditions of [Torres’s] demand.” There were no further communications between the parties before the settlement offer expired on February 28, 2010.

On March 4, 2010, Torres’s attorney wrote to Infinity, acknowledging the receipt of what he described as Infinity’s “counteroffer to settle [his] client’s bodily injury claims” and insisting that his client would not agree to defend Infinity or Elkin against claims by third parties. The next day Infinity sent another release that did not contain indemnification language, but which did contain language stating that Torres had not relied on any representations outside of the agreement. The parties communicated further regarding the documentation Infinity provided, but they were unable to resolve the matter.

On March 9, 2010, Torres filed suit against Elkins and the other motorists involved, Cathy Isola and Michael Carter, for injuries and other damages that he suffered as a result of the motor-vehicle accident. Shortly thereafter, uninsured-motorist carriers Progressive Max Insurance Company and Progressive Premier Insurance Company of Illinois entered appearances as unnamed defendants in this suit. On February 1, 2011, Elkin filed a motion to enforce settlement, contending that Infinity had settled with Torres on Elkin’s behalf by its letter of February 24, 2010. Torres opposed the settlement motion and moved for partial summary judgment on the same issue. The trial court granted Elkin’s motion to enforce the settlement and denied Torres’s motion for partial summary judgment on April 18, 2011, holding that Infinity had accepted Torres’s settlement offer via its February 24, 2010 letter.

On May 13, 2011, Torres filed a notice of appeal from the April 18 order. However, this Court dismissed the appeal because the April 18 order did not dispose of all claims against all parties. A few months later, Torres filed a motion to dismiss defendant Isola and the two defendant insurance carriers and for entry of final judgment, and on August 15, 2011, the trial court granted this motion, stating, “[t]he issues having been duly heard and a decision having been rendered, it is hereby ordered and adjudged that judgment is entered in favor of Defendant Elkin, and that Plaintiff takes nothing by this action.”

On September 14, 2011, Torres filed a notice of appeal from the trial court’s August 15,2011 order. But this Court again dismissed the appeal on the ground that a plaintiffs voluntary dismissal of a party is not a decision that a plaintiff may then appeal. We further noted that a voluntary dismissal cannot be used to obtain appellate review of a ruling entered by the trial court more than 30 days from the filing of the notice of appeal. Torres then moved for reconsideration. Consequently, we reinstated the case and directed the parties to address the jurisdictional issue as well as the merits. This appeal follows.

1. We first address the issue of whether we have jurisdiction in this case. It is well established that this Court has a solemn duty to inquire into our jurisdiction to review the errors enumerated on appeal, and it is a duty we do not take lightly. At the same time, this Court is also charged with avoiding the dismissal of an appeal and reaching the merits of a case whenever it is reasonable to do so. After conducting such an inquiry in this matter, we find that we have jurisdiction over this appeal.

OCGA § 5-6-34 (a) (1) provides that direct appeal may be had from all final judgments of the trial court. A final judgment exists only “[when] the case is no longer pending in the court below... ,” A party has 30 days after entry of an appealable judgment to file its notice of appeal. And once a final judgment is appealed, all judgments, rulings, or orders rendered in the case which are raised on appeal and may affect the proceedings below may be appealed regardless of whether they would be appealable standing alone. In the case of an order granting a motion to enforce a settlement agreement, the order is not final until the trial court expressly enters final judgment on that order. The Supreme Court of Georgia has held that “notwithstanding the trial court’s grant of a motion to enforce a settlement, a case is not at an end until such time as the agreement has been made the judgment of the court, thereby terminating the litigation.” And our Supreme Court has further held that the 30-day period for filing a notice of appeal begins to run only when the trial court explicitly enters final judgment, rather than when the trial court grants the motion to enforce the settlement agreement.

And here, no final judgment was entered simultaneously with the trial court’s April 18, 2011 order granting Elkin’s motion to enforce settlement and denying Torres’s motion for partial summary judgment. In fact, the trial court entered final judgment with respect to its April 18 order only on August 15, 2011, when it also granted Torres’s motion to dismiss his claims against the other remaining defendants, and thus, the 30-day time period for filing his notice of appeal did not begin to run until that point.

Nevertheless, our conclusion that the trial court’s August 15, 2011 order represented a final judgment does not end our inquiry. In addition to the requirement of finality, a notice of appeal must be from an appealable decision or judgment, and must be brought by one with standing to pursue the appeal. It is a well-established principle that “at the appellate level, one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” And thus, a voluntary dismissal is not a decision or judgment that a plaintiff may appeal. But in this matter, Torres is appealing a final, appealable entry of judgment that was included in the same order that voluntarily dismissed the remaining defendants. Accordingly, the order enforcing settlement was not appealable until the trial court entered final judgment. Therefore, Torres’s dismissal of the additional defendant was not sufficient to create an appealable judgment, and the judgment from which Torres is appealing is not one his own conduct procured or caused. Given the foregoing and our statutory mandate to decide cases on the merits whenever it is reasonable to do so, we find that we have jurisdiction over this appeal.

2. We now turn to the merits of this case, and Torres’s claim that the trial court’s decision granting Elkin’s motion to enforce the settlement agreement and denying his motion for partial summary judgment runs contrary to a fundamental principle of Georgia contract law — i.e., that a party offering to contract with another is at liberty to specify the terms and conditions by which that offer is to be accepted. Specifically, Torres argues that the performance by which Infinity purported to accept his offer was neither identical to the terms of the offer nor unconditional and unequivocal. We agree that Infinity’s purported acceptance constituted a counteroffer and therefore, reverse the trial court’s order.

In reviewing the trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment, we apply a de novo standard of review and, thus, view the evidence in a light most favorable to the nonmoving party. Moreover, well-established principles guide our inquiry into whether the parties entered into a settlement agreement. In order to prevent litigation, “[cjompromises of doubtful rights are upheld by general policy . . . .” At the same time, courts are certainly limited to “those terms upon which the parties themselves have mutually agreed.” Indeed, apart from such mutual agreement, no enforceable contract exists between the parties. And settlement agreements must meet the same requirements of formation and enforceability as other contracts. Thus, an answer to an offer “will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer.” The offer must be accepted “unequivocally and without variance of any sort.” And if a purported acceptance of the plaintiff’s settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance. Furthermore, the party asserting the existence of a contract has the burden of proving its existence and its terms. We consider Torres’s argument on appeal with these guiding principles in mind.

Torres contends that Infinity made its acceptance conditional on his assent to indemnification language and a lien affidavit in the proposed release, thus rendering its response a counteroffer rather than an acceptance. As previously noted, Infinity’s February 24,2010 response to Torres’s offer stated: “I [Infinity] trust that your office will satisfy any liens arising out of this matter.” In deciding whether Infinity validly accepted Torres’s offer, we must decide whether this language makes Infinity’s acceptance conditional on Torres’s assent to an additional term, or whether it is mere precatory language seeking confirmation of an aspect of the agreement. Language is properly characterized as “precatory” when its “ordinary significance imports entreaty, recommendation, or expectation rather than any mandatory direction,” and such language does not render a purported acceptance a counteroffer. For example, this Court has held that a defendant unconditionally accepted a plaintiff’s offer despite noting in the acceptance letter his “understanding that no liens of any kind exist in this case[,]” and asking that the plaintiff “confirm this at [his] earliest convenience.”

In contrast, when the offeree’s response makes acceptance conditional on the offeror’s assent to an additional term, the response then constitutes a counteroffer rather than an acceptance. In fact, our Supreme Court has found that no acceptance occurred when the response to a settlement offer noted that “payment is complicated by what appears to be a [hospital lien] as well as potential liens by your client’s health carrier.” Even more recently, that Court found a purported acceptance constituted a counteroffer when an insurer’s response to a settlement offer included the following statement: “Please call me in order to discuss how the lien(s) (Specifically, but not limited to the $273,435.35 lien from [the hospital]) will be resolved as part of this settlement.” And indeed, we likewise held that a settlement was unenforceable because an offeree made a counteroffer when its purported acceptance indicated, “You requested settlement with a Limited release; however, we feel our insured is better protected with a Release in Full. Please check with the UIM carrier on waiving their subrogation allowing us to settle with the Release in Full.”

In the case sub judice, Torres neither offered to satisfy the liens arising from the accident nor made representations regarding the existence or nonexistence of liens. And Infinity’s purported acceptance did not simply inquire whether Torres would agree to satisfy any liens or state its current understanding of the matter. Rather, the language stating, “I trust that your office will satisfy any liens arising out of this matter,” is sufficiently insistent to indicate a requirement that Torres was required to satisfy for Infinity’s acceptance to be effective. Areasonable person in the position of the other contracting party would interpret such language as imposing a condition, rather than as merely precatory. Thus, we conclude that Infinity’s February 24, 2010 letter constituted a counteroffer rather than an unconditional and unequivocal acceptance, and therefore, no binding settlement agreement was formed. Accordingly, we reverse the trial court’s order granting Infinity’s motion to enforce settlement and denying Torres’s motion for partial summary judgment.

Decided July 12, 2012

Reconsideration denied July 26, 2012

Swope Rodante, Darrell W. Hinson, Bondurant, Mixson& Elmore, Jill Pryor, for appellant.

Harper, Waldon & Craig, Russell D. Waldon, John E. Alday, Kimberly A. McNamara, for appellee.

Judgment reversed.

Ellington, C. J., and Phipps, P. J., concur.

       The release provided in relevant part:
      As further consideration for payment of said sum, the Undersigned hereby agrees to completely indemnify and hold harmless the Limited Releasee and his Insurance Carrier, identified above, for any and all claims for liens (including hut not limited to all attorney, hospital, physician, ERISA, Medicare, and Medicaid liens) arising out of personal injuries to the Undersigned asserted by anyone or any entity resulting from the above-described occurrence, said indemnity to include all reasonable costs in defending against such liens including attorney’s fees.

       Torres dismissed defendant Carter without prejudice on May 27, 2010.

        See Waye v. Cont’l Special Risks, 289 Ga. App. 82, 84 (656 SE2d 150) (2007); Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga. App. 1, 3 (456 SE2d 71) (1995); Mitchell v. Wyatt, 192 Ga. App. 127, 129 (1) (384 SE2d 227) (1989).

        See Waye, 289 Ga. App. at 84.

        See Coleman v. State, 305 Ga. App. 680, 680 (700 SE2d 668) (2010); Miller v. State, 264 Ga. App. 801, 802 (592 SE2d 450) (2003).

        Cf. Salazar v. Buono, 559 U. S. 700 (130 SC 1803, 176 LE2d 634) (2010) (Scalia, J., concurring) (“[Ajdheringto... limits upon our jurisdiction respects the authority of those whom the people have chosen to make and carry out the laws.”).

        See OCGA § 5-6-30 (“[TJhis article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case . . . except as may be specifically referred to in this article.”); see also Sellers v. Nodvin, 262 Ga. 205, 207 (1) (b) (415 SE2d 908) (1992) (holding that “the policy of the law is to avoid a dismissal of the appeal and reach the merits of the case where it is reasonable to do so” (punctuation omitted)).

       OCGA § 5-6-34 (a) (1) (“Appeals may be taken to the Supreme Court and the Court of Appeals from... [a]ll final judgments, that is to say, where the case is no longer pending in the court below . . . .”).

       OCGA § 5-6-34 (a); see also Metro. Atlanta Rapid Transit Auth. v. Federick, 187 Ga. App. 696, 698 (1) (371 SE2d 204) (1988) (“A judgment is final only when it disposes of the entire controversy, leaving nothing for the Court to do in the case.”).

       OCGA § 5-6-38 (a).

       OCGA § 5-6-34 (d).

        See Underwood v. Underwood, 282 Ga. 643, 644 (1) (651 SE2d 736) (2007); Zeitman v. McBrayer, 201 Ga. App. 767, 768 (2) (b) (412 SE2d 287) (1991).

        Underwood, 282 Ga. at 644 (1) (punctuation omitted).

        Id.

       The trial court indicated entry of final judgment on August 15, 2011, in stating, “[t]he issues having been duly heard and a decision having been rendered, it is hereby ordered and adjudged that judgment is entered in favor of Defendant Elkin, and that Plaintiff takes nothing by this action.”

        See Studdard, 217 Ga. App. at 3.

        See id.

        Mitchell, 192 Ga. App. at 129 (1) (punctuation omitted); accord Waye, 289 Ga. App. at 84; Studdard, 217 Ga. App. at 3.

        Waye, 289 Ga. App. at 84; see also Studdard, 217 Ga. App. at 3; Mitchell, 192 Ga. App. at 129 (1).

        See Underwood, 282 Ga. at 644 (1).

        Cf. Waye, 289 Ga. App. at 82-84 (dismissing appeal on the grounds that the plaintiff could not render a previous ruling appealable by voluntarily dismissing the remaining defendant); Studdard, 217 Ga. App. at 1-3 (dismissing appeal when the appellant could have appealed two adverse summary judgment rulings when entered); Mitchell, 192 Ga. App. at 127-29 (dismissing appeal on the grounds that the plaintiff could not render a previous ruling appealable by voluntarily dismissing the action).

        See OCGA § 5-6-30; Sellers, 262 Ga. at 207 (1) (b).

        See Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994) (“An offer may be accepted... either by a promise to do the thing contemplated therein, or by the actual doing of the thing. The offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act’’) (citation and punctuation omitted) (emphasis supplied); Sheffield v. Whitfield, 6 Ga. App. 762, 764 (2) (65 SE 807) (1909) (same).

        Anderson v. Benton, 295 Ga. App. 851, 852 (673 SE2d 338) (2009); see also DeRossett Enters., Inc. v. Gen. Elec. Capital Corp., 275 Ga. App. 728, 728 (621 SE2d 755) (2005).

        Matrix Fin. Servs, v. Dean, 288 Ga. App. 666, 666 (655 SE2d 290) (2007).

        Anderson, 295 Ga. App. at 854 (1).

        Herring, 213 Ga. App. at 696 (punctuation omitted).

        Id. at 696-97 (punctuation omitted).

        Id. at 697.

        Greenwald v. Kersh, 275 Ga. App. 724, 725-26 (621 SE2d 465) (2005).

        Wyatt v. House, 287 Ga. App. 739, 742 (3) (652 SE2d 627) (2007) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

        See Millwood v. Art Factory, Inc., 306 Ga. App. 164, 166 (702 SE2d 7) (2010); Laverson v. Macon Bibb County Hosp. Auth., 226 Ga. App. 761, 762 (487 SE2d 621) (1997).

        Raines v. Duskin, 247 Ga. 512, 523 (2) (277 SE2d 26) (1981) (punctuation omitted).

        See Herring, 213 Ga. App. at 699; see also Pourreza v. Teel Appraisals & Advisory, Inc., 273 Ga. App. 880, 883 (616 SE2d l08) (2005) (finding precatory language when the offeree asked the offeror to “let me know” if other documents were necessary).

        Herring, 213 Ga. App. at 698 (punctuation omitted).

        See McReynolds v. Krebs, 290 Ga. 850, 853 (2) (725 SE2d 584) (2012); Frickey v. Jones, 280 Ga. 573, 575-76 (630 SE2d 374) (2006); Wyatt, 287 Ga. App. at 741-742 (3).

        Frickey, 280 Ga. 573.

        McReynolds, 290 Ga. at 853 (2) (punctuation omitted).

        See Wyatt, 287 Ga. App. at 741-42 (3) (punctuation omitted).

        Cf. Mealer v. Kennedy, 290 Ga. App. 432, 436 (659 SE2d 809) (2008) (indicating that an insurer’s request that the injured party sign an affidavit certifying that no liens existed was merely an attempt to memorialize a previous understanding).

        Cf. Herring, 213 Ga. App. at 699; Pourreza, 273 Ga. App. at 883.

        See McReynolds, 290 Ga. at 853 (2); Frickey, 280 Ga. at 573-76; see also Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995) (indicating that courts may turn to a dictionary for the plain, ordinary, and popular sense of a word in interpreting contracts); see also The Compact Oxford English Dictionary (2d ed. 1989) (defining “to trust” as, inter alia, “to rely or depend on”).

        See generally Greenwald, 275 Ga. App. at 727; Legg v. Stovall Tire & Marine, Inc., 245 Ga. App. 594, 596 (538 SE2d 489) (2000).

       Because we conclude that Infinity’s purported acceptance was a counteroffer, we need not address the other alleged deficiencies Torres identifies in Infinity’s response to his settlement offer.

       Importantly, we note that an insurance company does not act in bad faith solely because it fails to accept a settlement within the deadline set by the injured party’s attorney. See Southern General Ins. Co. v. Wellstar Health Systems, Inc., 315 Ga. App. 26, 31 (726 SE2d 488) (2012) (recognizing a “safe harbor” from liability for bad faith when an insurer acts promptly to settle a case involving clear liability and special damages in excess of the applicable policy limits, and the sole reason for the parties’ inability to reach a settlement is the plaintiff’s unreasonable refusal to assure the satisfaction of any outstanding hospital liens).


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A12A0408.
    MAYS et al. v. VALLEY VIEW RANCH, INC.
    (730 SE2d 592)
   Phipps, Presiding Judge.

Evangeline Mays was injured when a portion of a horse hitching rail fell upon the fourteen-year-old during her stay at a summer equestrian boarding camp for girls ages eight to seventeen. The camp was owned and operated by Valley View Ranch, Inc. Sammie Mays, individually and as Evangeline Mays’s mother and guardian (hereinafter, the Mayses) sued Valley View Ranch for damages. Valley View Ranch filed a motion claiming, inter alia, that it was entitled to civil immunity under Georgia’s Injuries From Equine Or Llama Activities Act (the Act). Agreeing therewith, the trial court granted the motion. The Mayses challenge that ruling on appeal, but have shown no error. We affirm.

On July 3, 2008, Evangeline Mays was preparing to go on a trail ride with her fellow campers and camp counselors. She retrieved from the barn her assigned horse, Depp, and led him to a nearby hitching rail for horse grooming and tacking up.

The hitching rail was made of wooden utility poles. A single horizontal rail (an 18-foot-long, 300-pound pole with its ends notched) was positioned such that each (notched) end lay flat atop a vertical post (a pole that measured approximately 37.5 inches above ground). At each end of the horizontal rail, a 12-inch spike had been driven through the horizontal rail and about 6 inches into the respective vertical post underneath.

Each camper had been instructed by Valley View Ranch personnel to keep her horse at the hitching rail during the grooming and tacking process by wrapping the horse’s lead rope around the horizontal rail between one and three times. Accordingly, Evangeline Mays wrapped Depp’s lead rope around the horizontal rail about two times. Another horse, Chase, was already so “hitched” to the horizontal rail.

Evangeline Mays groomed Depp, then put the saddle pad on him. As she was standing between Depp and Chase and holding the saddle and the bridle, Evangeline Mays deposed, Chase made a loud squealing noise and began thrashing her head about; the horse started “backing up really hard and getting her head up and she couldn’t get away.” Chase’s “feet were going everywhere. She was completely panicked.”

Depp also started backing up, kicking, bucking, and trying to rear up. According to Evangeline Mays, “[Depp and Chase] were trying to get away from the pole. That seemed to be like their problem.” She described that the horses were “flailing their back feet, pushing them outward”; “[t]hey were kicking out with their back feet, pulling their front feet up, pawing out, pawing in, just scooting every which way.” The horses were “thrashing and trying to pull backwards,” and they were also “going from side to side.” The horses behaved this way, Evangeline Mays estimated, for a minute and a half to two minutes.

Still between Depp and Chase when the horses’ rear ends were almost touching, Evangeline Mays attempted to escape the situation by diving underneath the hitching rail. At that precise moment, the horizontal rail separated from one of its vertical posts and bounced upon and broke Evangeline Mays’s foot. Evangeline Mays lay on the ground; Chase bolted; Depp stood by quietly, as his rope remained attached to the fallen horizontal rail.

In their action against Valley View Ranch, the Mayses alleged theories of negligence. They complained that the hitching rail was defectively constructed. They complained that Valley View Ranch should have provided for its campers to use cross-ties or tie-ropes with “quick release” capabilities, rather than instructing them to wrap the lead ropes around the hitching rails. Among its defenses, Valley View Ranch argued in its motion that, under the Act, it was shielded from civil liability on all the Mayses’ claims.

In the Act, the General Assembly recognizes that persons who participate in equine activities may incur injuries as a result of the risks involved in such activities, and found also that the state and its citizens derive numerous economic and personal benefits from such activities. The Act thus sets forth the General Assembly’s intent: “to encourage equine activities ... by limiting the civil liability of those involved in such activities.” To that end, OCGA § 4-12-3 (a) of the Act states that, save specified exceptions, “an equine activity sponsor, an equine professional, ... or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.”

In this appeal, the Mayses contend that the trial court erred in concluding that the Act barred Valley View Ranch from being held liable on their negligence action. They maintain that OCGA § 4-12-3 (a) did not preclude civil liability because their claims were not premised upon the “inherent risks of equine activities,” pointing out that no horse kicked, struck, or otherwise came into contact with Evangeline Mays’s person in any harmful way. Alternatively, the Mayses argue that the trial court erred in rejecting their position that their claims fell within specified exceptions to OCGA § 4-12-3 (a)’s grant of civil immunity. In addition, they contend that the contract signed by Evangeline Mays’s mother, Sammie Mays, which allowed Evangeline Mays to attend the equestrian camp, was ineffective such that the Act’s immunity was not invoked. Consequently, the Mayses claim, genuine issues of material fact remain as to their negligence action. We consider each of these contentions in turn.

1. The Mayses contend that their negligence action is not barred under OCGA § 4-12-3 (a) because Evangeline Mays’s injuries did not result from the “inherent risk of equine activities.” According to the Mayses, Evangeline Mays’s foot was injured, not by any horse itself, but from a falling hitching rail. They argue that “[a] hitching rail’s collapse is not an inherent risk of equine activity’ and that nothing in the Act dispenses with a property owner’s duties to comply with Georgia laws concerning premises liability and construction.

“In effect, [the Mayses] read[ ] ‘[inherent risks of equine activities]’ to mean only the activity of equine animals, not activity involving equine animals.” But the Mayses’ restrictive proffer contradicts the broad definition set out by the General Assembly. OCGA § 4-12-2 (7) defines “inherent risks of equine activities” to mean “those dangers or conditions which are an integral part of equine activities,” including, but not limited to:

(A) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; (B) The unpredictability of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (C) Certain hazards such as surface and subsurface conditions; (D) Collisions with other animals or objects; and (E) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.

While some of the examples concern only animal propensities and behavior, others — e.g., those examples naming hazards such as surface and subsurface conditions and collisions with objects — reveal that the animal’s interaction with even static conditions or objects may fall within the statutory definition of “inherent risks of equine activities.”

Even the Mayses’ principal witness on horse handling and safety deposed that horses can become startled — unpredictably and for no obvious reason; that when startled, the animals’ survival instinct causes them to bolt; that as prey animals, they use strength, stamina, agility and speed to escape perceived danger; that most horses tied or fastened to something will “pull back and also rear up”; and that when frightened, the animals can damage things nearby. Here, it is undisputed that, while in the process of tacking up a horse that was attached to a hitching rail, Evangeline Mays was injured when that horse and another horse attached to the same hitching rail suddenly and unpredictably became startled, thereupon kicking, bucking, and thrashing about for approximately a minute and a half to two minutes in an apparent attempt to pull free of the hitching rail, which caused the horizontal rail to separate from one of its vertical posts and fall upon and break her foot. Contrary to the Mayses’ position, these circumstances established that Evangeline Mays’s injury resulted from the “inherent risks of equine activities” as contemplated by OCGA § 4-12-2 (7). Therefore, OCGA § 4-12-3 (a) provided Valley View Ranch with civil immunity from the Mayses’ claims, unless an exception to that Code provision’s grant of immunity applied.

2. The Mayses contend that their claims fell within exceptions set forth in OCGA § 4-12-3 (b).

(a) We consider first OCGA § 4-12-3 (b) (2), which pertinently provides that nothing in OCGA § 4-12-3 (a) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:

[o] wns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional, ... or person and for which warning signs have not been conspicuously posted.

To support their negligence claim that the hitching rail was defectively constructed and thus amounted to a dangerous latent condition, the Mayses presented the opinions of a retired college professor of animal science who had taught subjects such as horse handling and safety. According to the professor, a single 12-inch spike should not have been used to attach each end of the horizontal rail to the vertical post underneath; rather, a single 12-inch lag screw, coupled with “banding” with a “metal strap of some type such as roof flashing or perforated pipe hanger iron,” should have been used at each end. Additionally, the professor opined, the vertical posts were set too far apart; the distance should not have exceeded ten feet. The professor opined also that the horizontal rail was too low; it should have been positioned at least 42 inches above ground.

The individual who had owned and operated the ranch as a girls’ equestrian summer camp for approximately 40 years had collaborated with the individual who had performed maintenance work at the ranch since 1998 in deciding on the materials, design, and construction of the hitching rail; the maintenance worker had built it accordingly. Banding had been considered, but the owner/operator decided against adding that, concerned that a child’s finger could get stuck under it.

While the evidence showed that the hitching rail failed to withstand the force of the two horses and showed also that Valley View Ranch knew precisely how the hitching rail had been constructed, application of the cited exception required a showing of “a dangerous latent condition which was known or should have been known” to Valley View Ranch. The record fails to demonstrate, however, that Valley View Ranch had actual knowledge that the condition of the hitching rail was dangerous. Both the owner/operator and the maintenance worker testified that they knew nothing about either the hitching rail at issue or any others at the ranch that were similarly constructed coming apart prior to the date of the incident. Moreover, at the start of each summer camp, the hitching rails were inspected by the maintenance worker. As part of his inspection, he would push, pull, bump, and manipulate the hitching rails. None had shown any indication of instability; and at no time had he observed any spike that had “backed out” of its horizontal rail, or any rail that had separated from a vertical post in any way. Furthermore, the individual who served as barn manager in charge of the horses and who also supervised the camp counselors who gave riding lessons to the campers testified that, on numerous occasions prior to the underlying incident, she had seen horses trying to pull away from the hitching rail in question; the hitching rail had not moved, but had remained secure.

Nor does the record demonstrate that Valley View Ranch should have known that the hitching rail, so constructed, was a dangerous latent condition. Negligent construction claims arise “from breach of a duty implied by law to perform the work in accordance with industry standards.” “[E]xpert testimony as to the practices of an industry are acceptable. This would include an expert’s reliance (on such documents as) a Code used as the safety standard for an industry in forming his opinion.” But the Mayses failed to show that the opinions of the professor amounted to industry standards or practices such that the hitching rail constituted a dangerous latent condition that should have been known to Valley View Ranch.

To be sure, the professor was asked during his deposition to identify applicable industry standards upon which his opinions were based. Although he revealed that he had consulted a United States Department of Transportation’s publication entitled “Equestrian Design Guidebook for Trails, Trailheads and Campgrounds,” the professor conceded that this publication was a mere guide that could be accepted or rejected. The professor revealed that his opinions had stemmed also from a publication: “Certified Horsemanship Association [CHA], Standards for Group Riding Program.” But, as the professor acknowledged, that publication set forth as “[a]n important note regarding the purpose of the CHA standards”:

CHA does not mean to suggest that these are the only ways in which to promote safety. Nor does CHA suggest or infer that those who do not follow these standards or recommendations engage in unsafe practices. These standards are not intended to give rise to duties of care.[]

The professor was asked about his specific opinions. Regarding the minimum required height of the hitching rail, he could point to no industry standard, rule, regulation, or statute; regarding the length of the hitching rail, the professor testified that there was no regulation or even a recommendation. The professor cited nothing indicating that lag screws (as opposed to spikes), coupled with banding, were the industry standard. And he cited nothing so limiting the distance allowed between vertical posts.

Nor does the record support an inference that the hitching rail was defectively constructed based on industry practices. In reaching his opinions, the professor had not conferred with any fellow professor or builder. And upon his visits to numerous farms, he had noticed wide variety in the construction of hitching rails. There were differences in heights of the horizontal rail, spacings between vertical posts, and the manners in which the horizontal rails were attached to the vertical posts. For example, some used spikes, whereas others used screws; some attachments included banding; others did not. The professor acknowledged observing hitching posts like the one at issue here, with a single spike and no banding.

Given the foregoing, no evidence was adduced that the hitching rail, as constructed, constituted “a dangerous latent condition which was known or should have been known” to Valley View Ranch.

(b) The Mayses cite the civil immunity exception set forth in OCGA § 4-12-3 (b) (1) (A). It pertinently provides that nothing in OCGA § 4-12-3 (a) prevents or limits the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person “[pjrovided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury.”

(i) The Mayses contend that the hitching rail constituted “equipment” that was faulty. The Act does not define “equipment” and there is no Georgia decision interpreting that word within the context of the cited exception. Assuming for the sake of argument that the hitching rail constituted “equipment,” there is no evidence that Valley View Ranch knew or should have known that it was faulty.

(ii) The Mayses assert that Valley View Ranch used equipment that was faulty in that it failed to provide for tie ropes with quick release capability and instead instructed the campers to wrap the horses’ lead ropes around the horizontal rails between one and three times. The Mayses rely on the professor’s testimony that, in the event of an emergency, a tie rope could be released quickly either from the fixture or the horse halter.

The professor revealed that his opinion was based on the publication: “Certified Horsemanship Association, Standards for Group Riding Program.” As noted above, the professor conceded that the publication was expressly not meant to suggest the only ways in which to promote safety; nor was it intended to suggest that those who do not follow its recommendations engage in unsafe practices.

Furthermore, the owner/operator of the ranch testified that she was familiar with quick release knots, but had decided against them because the knots could tighten and become impossible for eight- to seventeen-year-old girls to release if a horse began pulling back on them. She explained that, when a camper has instead simply wrapped the lead rope around the rail, “[the camper] can just unwrap. And if the horse does that by himself, it is fine. They’re just going to go get a bit of grass or something.” The individual who served as barn manager and supervisor of camp counselors providing riding lessons described that the goal of wrapping the lead rope a few times around the horizontal rail was not to tie the horse to the rail, but rather to provide a “visual barrier and deterrent” for the horse.

The professor conceded the difficulties associated with deploying a “quick release tie” on a startled horse: if a camper’s horse was “rearing on its hind quarters, pulling up and back and [it’s] elevated, that can be a potentially dangerous thing to do for an 8-year-old up to a 17-year-old.” The professor was thus asked, “[W]hat if a horse is not tied, but simply the lead rope is looped over one or two times, what if the intent is not to tie the horse to the hitching post, the hitching rail, but rather just to keep it there while the tack is being placed on the horse, do you find criticism with that?” The professor answered, “If that’s the intent, no, I don’t find criticism with it. If the intent is not to have the horse tied, and that’s how they saddle that horse, I don’t have criticism with that.”

Given the foregoing, even assuming for the sake of argument that failure to provide for quick release ties could constitute “faulty” equipment as urged by the Mayses, the Mayses failed to show that Valley View Ranch’s decision not to provide for “quick release” ties while Evangeline Mays was tacking up her horse was an instance thereof.

Decided July 13, 2012

Reconsideration denied July 26, 2012

Jones & Walling, D. Richard Jones III, Julie A. Dlott, for appellants.

Bovis, Kyle & Burch, Steven J. Kyle, Michael D. Stacy, Cook & Connelly, Bobby Lee Cook, for appellee.

3. The Mayses contend that Valley View Ranch failed to avail itself of the immunity allowed under the Act, asserting that the release, which Sammie Mays admittedly read and signed for Evangeline Mays to attend the equestrian camp, was ineffective.

Pertinent here is that OCGA § 4-12-4 requires every written contract entered into by an equine professional or by an equine activity sponsor for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant to contain a specified warning notice. Failure to comply with that requirement “shall prevent an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this [Act].”

Because the release contained the requisite warning, the Mayses’ contention is without merit.

4. Finally, applicability of the immunity afforded Valley View Ranch by the Act renders moot the Mayses’ remaining contention that genuine issues of material fact exist with respect to the elements of their substantive claims.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 4-12-1 et seq.

       OCGA § 4-12-1.

       OCGA § 4-12-1.

       (Emphasis supplied.) There is no dispute on appeal that Valley View Ranch constitutes “an equine activity sponsor, an equine professional,... or any other person, which shall include a corporation or partnership” for purposes of OCGA § 4-12-i. Nor is there any dispute that, in attaching the horse to the hitching rail, grooming Depp, and tacking up the horse, Evangeline Mays was involved in an equine activity under that Code section.

       See generally Cameron v. Lang, 274 Ga. 122, 124 (1) (549 SE2d 341) (2001) (usually, whether person is immune from civil liability is a question of law).

       The Act provides that failure to comply with specified warning requirements in written contracts prevents an equine activity sponsor or equine professional from invoking the privileges of immunity. OCGA § 4-12-4.

        Loftin v. Lee, 341 SW3d 352, 357 (III) (Tex. 2011) (emphasis in original). Loftin was decided under an immunity act with language similar to that of Georgia’s Act.

       OCGA § 4-12-2 (7) (A)-(E).

       See generally Loftin, supra at 357 (III).

       See generally id. Also see generally Adams v. Hare, 244 Ga. App. 605, 607-608 (1) (536 SE2d 284) (2000) (where plaintiff was injured by horse’s kick, injury resulted from inherent risks of equine activities and not, as plaintiff claimed, from misrepresentations in the sale of the horse).

       (Emphasis supplied.)

       See OCGA § 4-12-3 (b) (2).

        City of Atlanta v. Senator, 310 Ga. App. 597, 605 (5) (714 SE2d 109) (2011) (punctuation omitted).

        Thomas v. MARTA, 300 Ga. App. 98, 103 (2) (b) (684 SE2d 83) (2009) (punctuation and footnote omitted).

       See generally Muller v. English, 221 Ga. App. 672, 678 (2) (c) (472 SE2d 448) (1996) (standards or recommendations published by a private entity for use as guidelines do not create a legal requirement to comply with those standards).

       See generally MARTA v. Rouse, 279 Ga. 311, 314 (1) (612 SE2d 308) (2005) (even defendants chargeable with extraordinary care are not required to utilize the newest and safest equipment to escape liability, for to hold otherwise would essentially force them to be insurers of the safety of others); Hamblin v. City of Albany, 272 Ga. App. 246 (612 SE2d 69) (2005) (although plaintiff who injured her hand on wooden handrail at outdoor park presented testimony about the effects of pressure washing and applying a urethane coating upon wood, she provided no evidence that an ordinarily prudent owner or operator of an outdoor establishment would have applied such a coating to wooden handrails installed outside and would not have pressure washed them; thus, plaintiff failed to show that the park owner’s and operator’s maintenance of the handrail created a dangerous condition).

       See Division 2 (a), supra.

       Urging an expansive definition of “faulty equipment, the Mayses cite Teles v. Big Rock Stables, 419 FSupp.2d 1003, 1007 (III) (A) (E.D. Tenn. 2006), in which the definition of “faulty” equipment was interpreted to include improper use of stirrups. Statutory language at issue in Teles was similar to that of Georgia’s Act. See Teles, supra.

       See footnote 18, supra.

       OCGA § 4-12-4 (a), (b).

       OCGA § 4-12-4 (c).

        Wiederkehr v. Brent, 248 Ga. App. 645 (548 SE2d 402) (2001) (affirming grant of summary judgment to defendant on basis that defendant had immunity pursuant to Injuries From Equine Or Llama Activities Act, despite genuine issues of material fact on substantive claims); accord Cameron, supra (immunity is an “entitlement not to stand trial” rather than a “mere defense to liability”).


author: Blackwell, Judge.

text:
    A12A0427.
    GREEN v. FLANAGAN.
    (730 SE2d 161)
   Blackwell, Judge.

In the summer of 2006, Johanna Flanagan was employed with PharmaCentra, LLC, and Barry Green was her supervisor. According to Flanagan, Green behaved badly that summer — talking inappropriately about sex, touching her inappropriately, and attempting repeatedly to turn their work relationship into a more intimate one, something in which Flanagan had no interest — and when she complained about his boorish behavior, she lost her job. A little more than a year later, Flanagan sued PharmaCentra and Green in the Superior Court of Fulton County, asserting claims against Green under Georgia law for assault, battery, intentional infliction of emotional distress, and breach of her employment agreement with Pharma-Centra. That lawsuit was removed to federal district court, see 28 USC § 1441 et seq., where PharmaCentra moved to compel Flanagan to submit her claims to binding arbitration, pursuant to the arbitration provisions of her employment agreement. The federal court granted that motion, Flanagan took her claims against both Pharma-Centra and Green to arbitration, and her lawsuit was dismissed or, at the least, discontinued. Flanagan eventually settled her claims against PharmaCentra, and she voluntarily dismissed Pharma-Centra from the arbitration proceedings. PharmaCentra, however, had been responsible for the arbitration fees, and Flanagan evidently made no provision in the settlement agreement for PharmaCentra to pay the fees necessary for her to continue the arbitration against Green. After PharmaCentra was dismissed, neither Flanagan nor Green was willing to pay those fees, and so in April 2010, the arbitrator dismissed the arbitration altogether, with Flanagan consenting to the dismissal.

Within six months after the dismissal of the arbitration proceedings — but more than six months after her lawsuit in federal court had been dismissed or discontinued — Flanagan filed a second lawsuit against Green, this time in the State Court of Cherokee County, reasserting the claims that she had pressed against him in her earlier lawsuit and in arbitration. By the time Flanagan filed her second lawsuit, the statutory period of limitation for her tort claims against Green had run, see OCGA § 9-3-33, and so he moved to dismiss those claims as untimely. In response, Flanagan pointed to the Georgia renewal statute, OCGA § 9-2-61 (a), which provides that, “[w]hen any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced... within six months after the discontinuance or dismissal,” even though the statutory period of limitation has run in the meantime. Under the renewal statute, the second lawsuit was timely filed, Flanagan said, because it was filed within six months after the dismissal of the arbitration. Green also moved to dismiss the contract claim under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief might properly be granted, arguing that he was not a party to any contract with Flanagan. The court below denied the motion to dismiss in its entirety, and we allowed Green to take an interlocutory appeal. We now conclude that the court below should have dismissed the second lawsuit, and we reverse the judgment below.

1. As he did below, Green argues on appeal that the tort claims are barred by the statute of limitation, and he says that the renewal statute does not save those claims because the second lawsuit was not filed within six months of the dismissal or discontinuation of the earlier lawsuit in federal court. We agree. The plain terms of the renewal statute speak of the discontinuation or dismissal of a “case [that] has been commenced in either a state or federal court,” OCGA § 9-2-61 (a), and in its ordinary usage, “case” generally is understood to refer to “[a] judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed.” Black’s Law Dictionary, p. 215 (6th ed. 1990) (emphasis supplied). Consistent with the ordinary usage, this Court has explained that the renewal statute allows the renewal within six months of any “judicial proceeding [in which the plaintiff seeks] to assert his right and enforce his remedy.” Ludi v. Van Metre, 221 Ga. App. 479, 481 (2) (471 SE2d 913) (1996) (emphasis supplied). See also Hardin Constr. Group v. Fuller Enterprises, 233 Ga. App. 717, 721 (1) (505 SE2d 755) (1998) (physical precedent only). Arbitration is not a judicial proceeding, of course; it is an alternative to a judicial proceeding. Although we find no Georgia cases specifically concerning whether an arbitration is a proceeding that can be renewed under the renewal statute, we do find decisions by Georgia courts that suggest that official, quasi-judicial proceedings do not properly form the basis for a renewal under OCGA § 9-2-61. See, e.g., Gordy v. Callaway Mills Co., 111 Ga. App. 798; 800 (143 SE2d 401) (1965) (administrative proceedings before State Board of Workers’ Compensation); Ivey v. DeKalb County Dept. of Public Safety, 668 FSupp. 1579, 1581 (N.D. Ga. 1987) (not citing renewal statute, but failing to find “any section in the Georgia Code which provides that the two-year limitations period under [OCGA] § 9-3-33 is tolled during the period in which a plaintiff appeals an employment termination decision [in an administrative proceeding]”). In light of these precedents, and in light of the plain language of the renewal statute, we conclude that an arbitration is not a proceeding that properly can be renewed within six months of its dismissal or discontinuation pursuant to OCGA § 9-2-61.

Such a conclusion, Flanagan argues, is terribly unfair, inasmuch as she was compelled to go to arbitration, and the arbitration was dismissed only because fees for which she was not responsible were not paid. We are not convinced, however, of the unfairness of this outcome. In the first place, Flanagan could have insisted that the federal court stay her lawsuit during the pendency of arbitration, see Bender v. A.G. Edwards & Sons, Inc., 971 F2d 698, 699 (I) (11th Cir. 1992), such that a “case” capable of renewal would remain pending in court until the arbitration was concluded, but she apparently did not. Even after her lawsuit was dismissed or discontinued, Flanagan could have insisted in her settlement with PharmaCentra that it pay the fees necessary for her to continue the arbitration against Green, but she evidently did not. It was Flanagan who let PharmaCentra out of the arbitration without securing the payment of fees that Pharma-Centra was obligated to pay, and so it is her own fault that she was unable to obtain a resolution of her claims against Green in arbitration. Consequently, the court below should have dismissed the tort claims that Flanagan asserts against Green, as well as her derivative claims for punitive damages and attorney fees.

Decided July 9, 2012

Reconsideration denied July 26, 2012

Winter, Capriola & Zenner, Marvin P. Pastel II, Eric B. Coleman, for appellant.

Lisa T. Millican, for appellee.

2. About the contract claim, Green argues that it should be dismissed because the contract upon which it is premised is the employment agreement between Flanagan and PharmaCentra, and he is not a party to that contract. We agree. Flanagan does not dispute that her contract claim against Green is premised on her employment agreement with PharmaCentra, nor does she dispute that Green is not a party to that agreement. The officers and employees of a limited liability company (like PharmaCentra) ordinarily have no personal liability for the contractual obligations of the company, see Milk v. Total Pay & HR Solutions, Inc., 280 Ga. App. 449, 452-453 (634 SE2d 208) (2006), and generally speaking, “a person who is not a party to a contract is not bound by its terms.” Accurate Printers, Inc. v. Stark, 295 Ga. App. 172, 178 (3) (a) (671 SE2d 228) (2008) (citation and punctuation omitted). Even if, as Flanagan contends on appeal, Green is a third-party beneficiary of the arbitration provision of her employment agreement, we are aware of no authority — and Flanagan points us to none — for the proposition that a third-party beneficiary of a contract can be sued for damages for its breach. Flanagan fails to state a claim against Green for breach of contract, and her contractual claim also should have been dismissed.

For these reasons, we reverse the judgment below, and we remand for the court below to dismiss this case.

Judgment reversed, and case remanded with instruction.

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

       This case comes to us at the pleadings stage, following the denial of a motion to dismiss, and for the purposes of this appeal, we must accept the truth of any allegations of fact set out in the complaint. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 89 (720 SE2d 370) (2011); see also Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011). Accordingly, the “facts” set out in this opinion are only allegations and have yet to be proven. See Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320, 321, n. 3 (727 SE2d 151) (2012).

       In addition, Flanagan named Concentra Solutions, Inc. as a defendant, alleging that it and PharmaCentra are one and the same, and she also named another PharmaCentra employee as a defendant. Her claims against PharmaCentra, Concentra, and this other employee, however, are not at issue in this appeal, and it is not necessary for us to distinguish between them. So, for the sake of simplicity, we refer to them collectively as “PharmaCentra.”

       Flanagan also asserted claims against Green for punitive damages and attorney fees, but those claims are necessarily derivative of her tort claims, and they stand or fall with the tort claims. See Wright v. Apartment Investment & Mgmt., 315 Ga. App. 587, 590 (1) (a), n. 6 (726 SE2d 779) (2012).

       Green adopted the motion of PharmaCentra to compel arbitration.

       The precise date upon which the lawsuit was dismissed or discontinued is a little unclear to us, hut we know that it was dismissed or discontinued by August 2009. In its motion to compel arbitration, PharmaCentra asked the federal court to “compel [Flanagan] to submit to arbitration and dismiss her claims.” The court granted that motion in April 2008 without reservation, albeit also without any explicit statement that the lawsuit was dismissed. Because the federal court appears to have granted the motion to compel in full, and because it did not expressly reserve the question of dismissal when it granted the motion, we suppose that the lawsuit was, in fact, dismissed as of April 2008. But in any event, Flanagan thereafter went to arbitration, and it appears that she discontinued her efforts to prosecute her claims in court. Moreover, in August 2009, the federal court ordered its clerk to “administratively close” the lawsuit, noting that the court previously had granted the motion to compel arbitration. Although Flanagan later moved the federal court to “reopen” the lawsuit, the federal court denied that motion as “untimely.” For the purposes of this appeal, we accept that the lawsuit in federal court was dismissed or discontinued no later than August 2009.

       Notably, the Georgia Arbitration Code does not refer to a “case” being submitted to arbitration. Rather, it speaks of “disputes,” “controversies,” “claims,” “issues,” and “matters” in arbitration. See, e.g., OCGA §§ 9-9-2 (c) (GeorgiaArbitration Code applies to “disputes in which the parties thereto have agreed in writing to arbitrate”); 9-9-3 (“agreement to submit any existing controversy to arbitration” and “contract to submit any controversy thereafter arising to arbitration”); 9-9-4 (d) (“claim with respect to which arbitration is sought”); 9-9-4 (e) (“arbitrable controversy”); 9-9-5 (a) (“claim sought to be arbitrated”); 9-9-6 (a) (“issue claimed to be arbitrable”); 9-9-6 (c) (4) (“the dispute or controversy sought to be arbitrated”); 9-9-6 (e) (2) (“disputes”); 9-9-6 (f) (“matters to be heard before the arbitrator, panel, or tribunal”); 9-9-8 (b) (“arbitrators may hear and determine the controversy”); 9-9-8 (d) (“the hearing and determination of the controversy”); 9-9-11 (a) (2) (“arbitrators have awarded upon a matter not submitted to them”); 9-9-11 (a) (3) (“the merits of the controversy”); 9-9-13 (b) (3) (“the subject matter submitted”); 9-9-13 (c) (4) (“[t]he arbitrated claim”); 9-9-13 (e) (“issues”); 9-9-14 (b) (2) (“a matter not submitted”); 9-9-14 (b) (3) (“the controversy’).


text:
    A12A0674.
    DAVIS v. THE STATE.
    (730 SE2d 30)
   Phipps, Presiding Judge.

While represented by counsel, Sylvester Davis entered a non-negotiated plea of guilty to the charges of aggravated battery and aggravated assault. Davis was sentenced to twenty years, with fifteen years to be served in confinement and five years to be served on probation. After sentencing, while represented by new counsel, Davis moved to withdraw the plea (“or... reduce his sentence”) on the ground that he had received ineffective assistance of counsel. Davis appeals from the trial court’s denial of the motion. Finding no error, we affirm.

To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, [Davis] must show counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel’s errors, he would not have pleaded guilty. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. An appellate court upholds the trial court’s factual findings unless they are clearly erroneous; a trial court’s legal conclusions are reviewed de novo.

1. Davis contends he was deprived of effective assistance of counsel in that counsel advised him that he should enter a nonnegotiated guilty plea so that a particular sentence would be imposed; but after he entered a guilty plea, the court imposed a different sentence.

Davis testified at the hearing on the motion to withdraw the plea that counsel had told him that he had spoken to the judge and that, if Davis entered an open-ended guilty plea, his sentence “was going to be like a fifteen do two, and perhaps time served on the sixteen months.” At the same hearing, Davis’s mother testified that counsel told her that if Davis pled guilty, he would not have to serve “much more time.”

In contrast, counsel testified at the hearing on the motion to withdraw the plea that he told Davis that if he pled guilty, he did not know what sentence would be imposed. At the motion hearing, Davis’s counsel denied that he told Davis that the judge had promised anything, denied that he told Davis or his mother “how long he was going to do, other than to explain to him the parole guidelines,” and denied that he told Davis’s mother that by pleading guilty Davis would “do little or no time.”

Prior to that, the court announced at the guilty plea hearing, with Davis present and before he entered the plea, that the plea was “open-ended... which means that there is no agreement between the State and the defendant with respect to the sentence. The matter of sentence ... is left to the sole discretion of the Court within the applicable sentencing ranges.” The court also informed Davis at the plea hearing that if convicted he faced a maximum sentence of 20 years on the aggravated battery charge (and that the court would be required to impose the maximum sentence if the state proved he had prior felonies). Davis replied that he understood, and stated that nobody had made any promises to him to get him to enter the plea. Davis also signed a “Petition for Open Ended Plea,” which showed that the charge of aggravated battery carried a maximum sentence of 20 years.

Davis’s assertions regarding what his counsel told him as to what sentence would be imposed involve credibility issues, which only the trial court could resolve. Here, the court expressly found that Davis’s testimony lacked credibility and was contradicted by the testimony of his counsel and the evidence of record. Thus, he has failed to demonstrate ineffective assistance of counsel based on counsel’s alleged promise regarding the sentence to be imposed.

2. Davis contends that he was deprived of effective assistance of counsel because his counsel misadvised him as to when he would be eligible for parole. He asserts that, but for counsel’s error, he would not have pled guilty. However, Davis made no such claim in his amended motion to withdraw the guilty plea. And at the hearing on the motion, Davis testified that counsel’s performance was deficient for various reasons — none of which involved counsel’s alleged misrepresentations as to his parole eligibility.

Even assuming, arguendo, that the issue is not procedurally barred, it is without merit. Davis gave no testimony indicating that, but for counsel’s misrepresentations about his parole eligibility, he would not have pled guilty. Indeed, at the hearing on the amended motion to withdraw the guilty plea, Davis’s (new) counsel conceded that the parole eligibility issue he was raising in closing argument was “really not in evidence.” Thus, Davis has failed to meet his burden of showing that counsel’s performance was deficient and that there was a reasonable probability that, but for counsel’s error, he would not have pled guilty and would have insisted on going to trial.

3. Davis contends that he was deprived of effective assistance of counsel because his counsel failed to inform him of or provide him with materials obtained through discovery regarding the victim’s prior injuries, injuries inflicted in the charged incident, and the victim’s recovery following the charged incident.

The state alleged that Davis had committed the offense of aggravated assault by assaulting a person with a metal pipe and slamming his head into the pavement; it further alleged that Davis had committed the offense of aggravated battery by rendering members of the person’s body useless. Davis posits that at the plea hearing the state emphasized the extent of the victim’s injuries, stating that the victim “was paralyzed from the neck down”; and, if counsel had provided him with the discovery materials showing the victim’s injuries were not as severe as represented, he would not have entered an open-ended guilty plea and would have instead opted to go to trial.

Decided June 27, 2012

Reconsideration denied July 26, 2012.

Richard M. Darden, for appellant.

Larry Chisolm, District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.

But his counsel testified that he had, prior to the plea hearing, reviewed with Davis all of the evidence obtained through discovery, including the medical evidence, and showed the materials to him. His counsel testified that he and Davis had agreed that their strategy was to show that Davis was remorseful and would make restitution to the victim; they chose not “to attack [the victim] in any way.” Notably, the judge stated at the hearing on the motion to withdraw the plea that Davis had admitted at the plea hearing that it was “a fairly significant assault”; his counsel had pointed out at the plea hearing that the victim’s condition had improved significantly, and the judge “took [counsel’s] word for that, that the victim . . . had dramatically improved” and had considered that point; and the judge had seen the victim in the courtroom and observed that he was “walking around” and clearly was not paralyzed.

The record authorized the trial court to reject Davis’s claim that his counsel’s performance was deficient and that there was a reasonable probability that, absent the deficiency, he would have not pled guilty. Therefore, Davis’s contentions provide no basis for reversing the trial court’s denial of the motion to withdraw the guilty plea.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       See footnote 4, infra, regarding use of the term “nonnegotiated.”

       The aggravated assault conviction merged into the aggravated battery conviction.

        Moore v. State, 286 Ga. App. 99, 102 (2) (648 SE2d 451) (2007) (punctuation and footnotes omitted).

       The trial court and parties have referred to the guilty plea in this case as “open-ended.” At the hearing on the guilty plea, the court explained that “open-ended... means that there is no agreement between the State and the defendant with respect to the sentence.” The type of plea described by the trial court is also known as a “nonnegotiated” plea. See, e.g., Manley v. State, 287 Ga. App. 358, 359 (1) (651 SE2d 453) (2007) (in an appeal involving the denial of a motion to withdraw a guilty plea, this court stated that the appellant’s plea was “open-ended” and, because it was a “nonnegotiated” plea, the trial court was not required to comply with a Uniform Superior Court Rule applicable to negotiated pleas); Rosser v. State, 273 Ga. App. 745, 746 (615 SE2d 842) (2005) (guilty plea was “nonnegotiated,” as there was no agreement between the state and the appellant regarding the sentence).

       See Norwood v. State, 311 Ga. App. 815, 818 (717 SE2d 316) (2011).

        See Brantley v. State, 290 Ga. App. 764, 766 (660 SE2d 846) (2008) (affirming the denial of a motion to withdraw a guilty plea, where appellant claimed that counsel provided ineffective assistance because counsel gave him the impression that he would receive less than the maximum eight-year sentence, where record showed that, prior to entering the guilty plea, counsel had explained to him the nature of the nonnegotiated plea, and he understood the consequences of the plea, including that the judge had discretion to sentence him to serve up to eight years); Geyer v. State, 289 Ga. App. 492, 493 (1) (657 SE2d 878) (2008) (trial court was authorized to find that appellant’s guilty plea was freely and voluntarily given, uninfluenced by any promises as to the possible sentences to be imposed as the result thereof, despite appellant’s claim that counsel had told him before entering the plea that he would receive a sentence of two to three years in confinement).

       See Wilson v. State, 302 Ga. App. 433, 436 (5), n. 10 (691 SE2d 308) (2010) (if the issue of trial counsel’s effectiveness was raised below, any claims of ineffectiveness not raised at that time have been waived).

       Compare Rollins v. State, 277 Ga. 488, 492 (2) (591 SE2d 796) (2004) (appellant demonstrated a reasonable probability that, but for counsel’s errors in informing her about the adverse collateral consequences of pleading guilty, she would not have pled guilty; appellant’s testimony on that point was unequivocal and was not contradicted by the record).

       See State v. Heath, 277 Ga. 337, 338 (588 SE2d 738) (2003); see generally Smith v. State, 287 Ga. 391, 394 (2) (a), n. 4 (697 SE2d 177) (2010) (counsel’s affirmative misrepresentation about the adverse collateral effects of a guilty plea may render the plea invalid, if the defendant can show prejudice as a result).

       See Moore, supra at 102-103 (2); Young v. State, 267 Ga. App. 91 (598 SE2d 840) (2004) (noting that when a defendant seeks to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence).

       See Frost v. State, 286 Ga. App. 694, 697 (2) (649 SE2d 878) (2007); Moore, supra at 103 (2); see also Geyer, supra.


author: Dillard, Judge.

text:
    A12A1229.
    JORDAN v. THE STATE.
    (730 SE2d 723)
   Dillard, Judge.

Following a trial by jury, Daniel Jordan was convicted of rape, two counts of aggravated child molestation, and two counts of child molestation related to incidents involving his ex-girlfriend’s daughter, A. L. Jordan now appeals these convictions, contending that the evidence was insufficient to sustain them. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reflects that during the time in question, Jordan lived with his girlfriend and her three children, including A. L. The girlfriend and her children relocated to Georgia after Hurricane Katrina, and by all accounts, life in the household was tumultuous. Both A. L. and her mother described incidences of domestic violence involving Jordan, including the mother being struck in front of the children, Jordan holding a gun to the mother’s head, and Jordan threatening to burn down the home with the children inside. Additionally, the mother testified to severely beating A. L. and A. L.’s younger brother when the two exhibited sexual curiosity, including an occasion in which she caught A. L. watching Jordan masturbate to pornography in the living room late one night. The mother also admitted to using marijuana and cocaine, with both herself and Jordan being high “most of the time”; maintaining a large collection of pornography in the home; engaging in threesomes with Jordan and women the two picked up in nightclubs, and utilizing a 24-hour daycare center to facilitate this endeavor; and otherwise “not paying attention to [the] kids like [she] should have.” Nevertheless, A. L.’s mother became suspicious of Jordan when she caught him watching pornography and masturbating in A. L.’s bedroom when the child was not present.

Not long after this incident, one Saturday evening, A. L.’s mother discovered the child — who was 11 years old at the time — naked inside of her bedroom closet, and the mother asked what A. L. was doing. She then made A. L. lie on the bed and spread her legs, and the mother observed a white substance inside A. L.’s vagina. At that point, the mother asked A. L. whether Jordan had ever touched her, and, after making sure Jordan could not hear, A. L. disclosed that he had been molesting her for some time. Specifically, A. L. told her mother that Jordan had engaged in sexual intercourse with her, and she described a mole on his penis. A. L.’s mother then confronted Jordan, who denied touching the girl, proceeded to choke the mother, and refused to allow anyone to leave the apartment for the remainder of the weekend. But on Monday, the mother was able to pick the children up from school, pack up their belongings, and flee to a friend’s home, from which she notified law enforcement about A. L.’s allegations.

Thereafter, A. L. was examined by a sexual assault nurse examiner (“SANE”). A. L. disclosed to the SANE that Jordan had put his penis inside her vagina and that it stung when he did so and bled on one occasion; that Jordan put his penis in her mouth, and she described the look and taste of semen; that Jordan made her engage in sexual intercourse in two different positions; and that Jordan’s penis was soft but would become hard. A pelvic exam revealed a two centimeter laceration in A. L.’s posterior fourchette — an injury the SANE attributed to A. L.’s allegations of intercourse with Jordan.

In addition to the medical exam, A. L. was interviewed by law enforcement, during which she again described Jordan’s penis. Thereafter, a warrant was issued to photograph Jordan’s penis, and these photographs revealed a mole just as A. L. had described. Jordan was thereafter indicted on one charge of rape, two counts of aggravated child molestation, one count of aggravated sexual battery, and two counts of child molestation. The jury convicted him of all but the aggravated sexual battery charge. This appeal follows.

At the outset, we note that on appeal of Jordan’s criminal conviction, “we view the evidence in the light most favorable to the jury’s verdict, and [Jordan] no longer enjoys a presumption of innocence.” And we neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province of the jury.” With these guiding principles in mind, we turn now to Jordan’s enumerations of error.

1. Jordan’s sole enumeration of error is that the evidence was insufficient to support his convictions, namely because of the lack of physical or DNA evidence. We disagree and will discuss his convictions in turn.

(a) Jordan was indicted and convicted on one count of forcible rape. A person is guilty of forcible rape “when he has carnal knowledge of . . . [a] female forcibly and against her will. . . .” The State presented sufficient evidence of forcible rape when A. L. testified that Jordan engaged in intercourse with her in various positions, that it hurt, and that she did not consent; the SANE testified to A. L.’s disclosure that it stung when Jordan put his penis in her vagina and bled on one occasion; and the SANE testified regarding (and the jury viewed photographic evidence of) the two centimeter laceration to A. L.’s posterior fourchette, which the SANE testified was consistent with sexual intercourse as alleged by A. L.

(b) Jordan was convicted on two counts of child molestation, related to having A. L. touch his penis and to masturbating in front of her. A person commits the offense of child molestation when he “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .” Jordan was indicted on these counts for “having [A. L.] place her hand on his penis with intent to arouse and satisfy [his] sexual desires” and “by masturbating in front of [A. L.] with intent to arouse and satisfy [his] sexual desires . . . .”

As to the first instance, the evidence was sufficient to support his conviction when the State presented testimony by A. L. that Jordan made her masturbate him, which she demonstrated, and her description of Jordan’s penis as “squishy” and then “hard,” followed by a description of semen; A. L.’s description of the mole on Jordan’s penis, and the corroborating photographic evidence; the testimony of the SANE, to whom A. L. described the look of semen and that Jordan’s penis was soft but would become hard.

Sharon L. Hopkins, for appellant.

As to the second instance, A. L. testified that she observed Jordan watching pornography on the computer in the family room. A. L.’s mother testified that on that night, A. L. came in and out of her bedroom and that if A. L. watched Jordan from a certain angle, “he must have knew [sic] she was watching him because she was in and out,” and “if he was watching it while she was up, he knew she was watching him.” Although Jordan testified that he believed that he was alone and that he only became aware of A. L.’s presence when the mother caught her watching, he testified to being at an angle at which A. L. could see his genitalia. Jordan’s intent on the night in question was “peculiarly a question for determination by the jury,” and viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to infer that Jordan masturbated in the presence of A. L. with the intent to arouse and satisfy his sexual desires.

(c) Finally, Jordan was convicted of two counts of aggravated child molestation. A person commits the offense of aggravated child molestation “when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” Jordan was indicted for this offense in that he “put[ ] his mouth on [A. L.’s] vagina” and in that he “put[ ] his penis in [A. L.’s] mouth . . . .” The State presented sufficient evidence of this offense when A. L. testified that Jordan performed oral sex on her and made her perform oral sex upon him, which was corroborated by the testimony of the SANE that A. L. disclosed that Jordan put his penis in her mouth and that A. L. described the look and taste of semen.

For all the foregoing reasons, we affirm Jordan’s convictions.

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

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

        See, e.g., DeLong v. State, 310 Ga. App. 518, 518 (714 SE2d 98) (2011).

       In this particular instance, the mother testified to beating A. L. and “chok[ing] her up.” The mother also testified to administering a “bad” beating and “[trying] to kill both” A. L. and her younger brother when A. L. was eight or nine years old, after she caught them simulating intercourse. A. L. testified that her mother would administer beatings with a leather belt.

       The events at trial and described in this opinion solely concern allegations of molestation that occurred when the family lived in a particular apartment complex in Gwinnett County, although A. L. disclosed that Jordan had allegedly abused her in a number of other locations the family had lived across the metro area.

         The SANE also testified that vaginal tissue heals quickly and that there are often no physical injuries from vaginal penetration.

       This charge related to an allegation by A. L. that Jordan digitally penetrated her vagina.

        DeLong, 310 Ga. App. at 519-20.

        Id. at 520 (punctuation omitted).

       OCGA § 16-6-1 (a) (1).

        See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); see also Haynes v. State, 302 Ga. App. 296, 302 (3), n.4 (690 SE2d 925) (2010) (“[A] person under the age of 16 cannot legally consent to a sexual act.”); Bradberry v. State, 297 Ga. App. 679, 681 (1) (678 SE2d 131) (2009) (sufficient direct and circumstantial evidence of forcible rape by victim’s testimony that she was forced against her will and that intercourse was painful); Hutchens v. State, 281 Ga. App. 610, 612 (1) (636 SE2d 773) (2006) (sufficient evidence of force when child victim testified that intercourse was painful), overruled in part on other grounds, Schofield v. Holsey, 281 Ga. 809, 811-12 n.l (642 SE2d 56) (2007); Brown v. State, 293 Ga. App. 633, 639 (3) (667 SE2d 899) (2008) (despite lack of physical evidence, victim’s testimony alone sufficient to sustain conviction of forcible rape).

        See OCGA § 24-3-16 (“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”).

        See Howard v. State, 228 Ga. App. 784, 785 (1) (492 SE2d 759) (1997) (“The physician’s testimony that the lacerations in the victim’s perineum could be due to forceful intercourse corroborated her statements.”).

       OCGA § 16-6-4 (a) (1).

        See Obeginski v. State, 313 Ga. App. 567, 568-69 (1) (722 SE2d 162) (2012) (sufficient evidence of child molestation when victim described moving hand up defendant’s penis); see also Lipscomb v. State, 315 Ga. App. 437, 440 (1) (727 SE2d 221) (2012) (victim’s claim that defendant’s genitals were exposed to her was corroborated by description of defendant’s penis and photographic evidence of same).

        Sanders v. State, 308 Ga. App. 303, 305 (1) (b) (707 SE2d 538) (2011) (punctuation omitted).

        See Rainey v. State, 261 Ga. App. 888, 890 (1) (584 SE2d 13) (2003) (“[T]he jury was authorized to conclude that [the defendant] was aware of the victim’s presence and that he sought to expose himself to her for the purpose of satisfying his own sexual desires.”).

       OCGA § 16-6-4 (c).

       See OCGA § 24-4-8; see also Obeginski, 313 Ga. App. at 569 (1) (sufficient evidence of child molestation when defendant engaged in oral sex with victim).

       See OCGA § 24-3-16.


author: Mikell, Presiding Judge.

text:
    A12A0005.
    A12A0011.
    A12A0012.
    A12A0013.
    In the Interest of A. G., a child. In the Interest of A. M., a child. In the Interest of S. W., a child. In the Interest of D. R., a child.
    (730 SE2d 187)
   Mikell, Presiding Judge.

Following a bench trial for the charges of battery and violating the Georgia Street Gang Terrorism and Prevention Act, A. G., A. M., S. W., and D. R. (the “juveniles”) appeal their adjudication of delinquency, contending that the evidence was insufficient to support the verdict against them and that the trial court erroneously based its findings on evidence not properly in the record before it. These cases have been consolidated on appeal. For the reasons set forth, we reverse.

In reviewing an adjudication of delinquency, this Court construes the evidence and all reasonable inferences therefrom “in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.” In reviewing such cases, we neither weigh the evidence nor determine witness credibility.

So construed, the record shows that following a pep rally in the Tattnall County High School gymnasium, T. W., a student, was surrounded by four other students, A. M., S. W., D. R., and A. G., who took turns striking him around his head. Sergeant Jones, an officer on duty at the school, searched all four students within an hour and a half after the incident. A notebook was found on A. M. that had “G-ville 912” written on the outside cover. A. M. testified that the writing was not gang-related and was short for his town, Glenville, and its zip code. However, Jones, who was certified by the trial court as an expert on gangs, testified that “G-ville 912” was written in a style associated with gangs. A bandana with a currency print was found on A. G., and purple bandanas were found on S. W. and D. R. Jones concluded that the bandanas were gang-related because of the particular way they were folded and instructed the court that the different patterns could identify member rankings within a gang. However, Jones also noted that he had not seen purple bandanas identifying with gang membership at the school before, and that bandanas signifying gang membership at the school “are normally red, white, or black.” Additionally, Jones testified that he did not know the current name of any gang within the school or its members because they change names so often.

None of the juveniles challenge their adjudication of the predicate offense — battery. Rather, they contend that the state failed to show that they were associated with an organization that fits the definition of “criminal street gang.” All four juveniles were charged with violating OCGA § 16-15-4 (a), which makes it unlawful for persons associated with a “criminal street gang” to engage in “criminal gang activity” by committing certain enumerated predicate offenses, including battery. A “[cjriminal street gang” is defined as a “group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity.”

The statute clearly contemplates that the existence of such an organization, and that its members are “associated in fact,” “may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire, or other distinguishing characteristics.” However, such evidence, without more, is insufficient to prove that the juveniles are members of a criminal street gang.

The only evidence presented by the state that the four juveniles in this case are members of a criminal street gang was the testimony from Jones that the three bandanas found on A. G., S. W., and D. R. were indicia of gang membership and that the writing on A. M.’s notebook was written in a style associated with gangs. Giving credence to Jones’ testimony, as we must, this evidence is insufficient to prove beyond a reasonable doubt that the four juveniles were members of a criminal street gang. Every case by this Court affirming convictions under OCGA § 16-15-3 (2) has included more than merely a single common identifying sign to prove a defendant’s membership in a criminal street gang. In In the Interest of C. P., a juvenile defendant was found to be part of a criminal street gang based upon officer testimony that C. P. was wearing colors associated with the Bloodz gang and that the pieces of paper he was carrying depicted symbols and codes associated with the Bloodz and the 55 Mafia. In addition, C. P. admitted to being a gang member and that the scars on his hands were a result of removing a gang tattoo. In In the Interest of X. W., the juvenile defendant was found to be a member of a criminal street gang based upon evidence that he had several copies of the Bloodz’ “Book of Knowledge” in his possession, that he instigated a fight with a rival gang to help an uninitiated classmate join the gang, and that he had gang graffiti written on his desk. In In the Interest of D. M, evidence of membership in a criminal street gang included wearing a black bandana, a color associated with a particular gang, during a drive-by shooting and the juvenile’s admission to a detective that he was a member of that gang. In In the Interest of A. D., the investigating detective “easily established” that both juveniles were members of related gangs because they admitted that they were members, both had tattoos associated with their gangs, and the detective had previously “documented” the juveniles as being gang members. In Lopez v. Stated, sufficient evidence to support a conviction included witness testimony, including that from a former gang member, and numerous photographs showing that defendant was a member of a gang.

Here, there was no evidence beyond the bandanas and a notebook to link the juveniles to membership in a criminal street gang. Jones did not describe the “G-ville” gang or testify about any of their activities, let alone their involvement in any criminal activities. To be a member of a “criminal street gang,” the group or organization must be “engage[d] in criminal gang activity as defined in paragraph (1)” of OCGA § 16-15-3. To sustain a conviction, the state must prove that the criminal gang activity or plans for its continuation was ongoing at the time of the commission of the indicted offenses; “in other words, the commission of an enumerated offense by the defendant is not itself sufficient to prove the existence of a ‘criminal street gang.’ ” Our Supreme Court has held that to hold otherwise, “the nonsensical result would be that a member of any legitimate group could violate the Act merely by committing an enumerated offense.” Accordingly, the battery committed in this case cannot serve as sufficient proof of the necessary gang activity.

Decided July 11, 2012

Reconsideration denied July 27, 2012.

Melissa E. Lawrence, Cheryl C. Quick, Karen L. Mead, William O. Cox, for appellants.

Tom Durden, District Attorney, Johnathan C. Gaskin, Assistant District Attorney, for appellee.

Because the state failed to establish that a “criminal street gang” was involved in the battery, we need not address appellants’ remaining enumerations: that the state failed to establish a nexus between the battery and an intent to further street gang activity, that the trial court relied upon impermissible hearsay evidence, and that the trial court considered evidence that was never introduced in the record in the final orders. The judgments on the counts charging criminal street gang activity are reversed in all four cases.

Judgments reversed.

Miller and Blackwell, JJ., concur.

       OCGA § 16-15-1 et seq.

       (Citations and punctuation omitted.) In the Interest of J. M., 237 Ga. App. 298 (1) (513 SE2d 742) (1999); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        In the Interest of G. J., 251 Ga. App. 299, 301 (554 SE2d 269) (2001).

       OCGA § 16-15-3 (1) (J).

       OCGA § 16-15-3 (2).

       Id. Accord In the Interest of X. W., 301 Ga. App. 625, 627-628 (2) (688 SE2d 646) (2009).

        Rodriguez v. State, 284 Ga. 803, 808 (2) (671 SE2d 497) (2009).

       The trial judge, as trier of fact, clearly chose to believe Jones’ explanation behind the bandanas and notebook drawing, and “it is not our function to second-guess the factfinder on such questions of credibility.” In the Interest of J. M., supra at 300 (1).

       296 Ga. App. 572, 574-575 (675 SE2d 287) (2009).

       Supra at 629 (2).

       307 Ga. App. 751-752 (1) (706 SE2d 683) (2011).

       311 Ga. App. 384, 385 (715 SE2d 787) (2011) (although the juveniles were found to be gang members, their convictions were reversed because the state did not prove that they were engaged in criminal gang activity).

       297 Ga. App. 618, 622-623 (2) (677 SE2d 776) (2009).

       (Punctuation omitted.) Morey v. State, 312 Ga. App. 678, 684 (1) (b) (719 SE2d 504) (2011), citing Rodriguez, supra. Accord In the Interest of A. D., supra (although the state proved that the juvenile defendants were members of criminal street gangs, their convictions were reversed because the state failed to establish that a criminal street gang was involved in the battery).

        Rodriguez, supra.