author: Andrews, Judge.

text:
    A17A0437.
    WALKER v. THE STATE.
    (801 SE2d 621)
   Andrews, Judge.

Harden Walker was found guilty by a jury of rape and false imprisonment and was sentenced to life imprisonment plus five years. Walker appeals claiming the evidence of venue was insufficient and that the trial court erred by denying his motion for a new trial on the basis of ineffective assistance of counsel. For the following reasons, the judgment of conviction is affirmed, the sentence is affirmed on condition, and the case is remanded with directions.

1. Walker’s only challenge to the sufficiency of the evidence concerns whether the State carried its burden to produce evidence establishing venue — that the charged offenses were committed in Fulton County, as alleged in the indictment.

In criminal cases, venue (the county where the charged crime was committed) is an essential element which must be proved beyond a reasonable doubt. Ga. Const. 1983, Art. VI, Sec. II, Par. VI; Bell v. State, 284 Ga. 790, 792 (1) (671 SE2d 815) (2009). As with any element of a charged crime, the State may use direct or circumstantial evidence to prove venue. Id. at 793 (1).

The State presented the following evidence to prove the charged crimes. Walker was indicted in 2010 on charges that in July 1990 he committed the offenses of rape and false imprisonment against the victim. A short distance from a nightclub located in Midtown Atlanta, the victim accepted a ride from two men who, against the victim’s will, drove the victim to a nearby field where both men threatened to kill the victim’s family and then, forcibly and against the victim’s will, had sex with the victim in the car. After the men could not start the car, the victim escaped and ran screaming to a nearby house located in the 600 block of Vernon Avenue in Fulton County where the occupant called police. When City of Atlanta police arrived at the house, they immediately took the victim to Grady Hospital where a sexual assault exam was performed, DNA samples were collected from the victim’s vagina, and a rape kit containing the samples was sent to the GBI crime lab. Because it was dark, the victim never got a good look at the men so she was unable to identify the rapists to police. Without a suspect whose DNA profile could be compared to the DNA samples from the victim’s vagina, the case remained cold for about 20 years. In 2010, pursuant to a request by the City of Atlanta police, the crime lab tested the samples from the victim’s rape kit, established that male DNA was in the samples, and generated a profile of the male DNA which matched known DNA profiles of Walker contained in an existing DNA database and in buccal swabs obtained from Walker by search warrant. The City of Atlanta police officer assigned to investigate the case in 1990 testified that the nightclub and the house the victim ran to immediately after the rape were located in Fulton County and that the incident occurred in Fulton County

The evidence was sufficient for the jury to find beyond a reasonable doubt that Walker was guilty of the charged offenses of rape and false imprisonment. OCGA §§ 16-6-1 (a) (1); 16-5-41 (a). The direct and circumstantial evidence was also sufficient for the jury to find beyond a reasonable doubt that the charged offenses were committed in Fulton County, as alleged in the indictment.

2. Walker contends on two grounds that his trial counsel was ineffective, and that the trial court erred by denying his motion for a new trial on these grounds.

To prevail on a claim of ineffective assistance, [Walker] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC[t] 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [Walker] must prove that she performed her duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC[t] 2574, 91 LE2d 305) (1986). And to show that he was prejudiced by the performance of his lawyer, [Walker] must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC[t] 1495, 146 LE2d 389) (2000). This burden, though not impossible to carry, is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C).

Arnold v. State, 292 Ga. 268, 269-270 (2) (737 SE2d 98) (2013). In considering an ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Leonard v. State, 292 Ga. 214, 217 (4) (735 SE2d 767) (2012) (citation and punctuation omitted).

In the first ground, Walker contends that trial counsel was ineffective for pursuing a defense that the crime lab’s DNA test results were faulty when discovery evidence showed otherwise. At the hearing on Walker’s new trial motion, his trial counsel testified that, prior to trial, she subpoenaed all of the crime lab testing data on the DNA obtained from the victim’s vagina after the rape, hired a DNA expert from Georgia Tech to review the DNA testing, and the expert reviewed the testing data and told her that the crime lab testing was inadequate and “wasn’t enough to prove that it was Mr. Walker’s DNA.” Counsel relied on this expert opinion to formulate a defense for the trial. Counsel testified that, after the State presented witnesses at trial from the crime lab establishing the crime lab testing procedures, she spoke to her expert witness during a recess of the trial, and the expert reviewed the testing data again and told her that he had made a mistake in his initial review and that the crime lab DNA testing was accurate. According to trial counsel, if she had called the expert as a witness at trial, the expert would have confirmed the crime lab testing, so she made a strategic decision not to call him. We find no error in the trial court’s conclusion that Walker failed to show that trial counsel’s performance was deficient. Under the circumstances, counsel’s decision not to call the expert witness at trial was a reasonable strategic decision. Moreover “[a] defendant is not constitutionally entitled to any certain level of effective assistance from experts that are reasonably selected by trial counsel.” Smith v. State, 283 Ga. 237, 239 (2) (a) (657 SE2d 523) (2008) (citation and punctuation omitted). Walker does not claim that the expert was not reasonably selected by trial counsel, and we find under the circumstances that counsel’s reliance on the expert’s erroneous initial opinion was not deficient performance. The trial court did not err by denying Walker’s motion for a new trial on this ground. Strickland, supra.

In the second ground, Walker contends that trial counsel was ineffective for failing to adequately advise him regarding a pre-trial plea offer from the State. The two-part test under Strickland, supra, also applies to Walker’s allegations of ineffective assistance during plea negotiations. Alexander v. State, 297 Ga. 59, 63 (772 SE2d 655) (2015). During pre-trial plea negotiations, the State offered to recommend to the trial court that Walker serve 20 years in prison in exchange for his guilty plea to the charged offenses of rape and false imprisonment. It is undisputed that, when the State made the plea offer, both the prosecutor and Walker’s trial counsel erroneously believed that 20 years was the maximum sentence that Walker could receive on the rape charge, when, in fact, he could receive a life sentence. Based on counsel’s erroneous advice that 20 years was the maximum rape sentence, Walker rejected the plea offer, went to trial, was convicted on both charges, and received a sentence of life imprisonment for rape plus five years for false imprisonment. Walker testified at the hearing on the new trial motion that trial counsel told him about the State’s 20-year plea offer and that “more than likely” he would have taken the plea offer if trial counsel had advised him that the maximum sentence for rape was life imprisonment. Although Walker testified that he did not learn about the possibility of life imprisonment until sentencing, trial counsel testified that, just prior to opening statements, the prosecutor told her that the maximum sentence for the rape charge was life imprisonment and that Walker was also made aware at that time that the maximum sentence was life.

“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566 U. S. 156, 168 (II) (B) (132 SCt 1376, 182 LE2d 398) (2012). Because trial counsel’s erroneous advice that 20 years was the maximum rape sentence was clearly deficient performance under the first Strickland prong, the issue is whether Walker proved under the second Strickland prong that counsel’s deficient performance prejudiced the defense.

Where counsel’s deficient advice has led a defendant to reject a plea offer and stand trial, to establish prejudice under the second Strickland prong,

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Lafler, 566 U. S. at 164 (II) (B). In addressing the prejudice prong, the trial court ruled that Walker learned during the trial that the maximum sentence for rape was life rather than 20 years, that “before and during trial, [Walker] repeatedly rejected a plea offer of twenty years to serve,” and that “nothing in the record suggests that [Walker] would have acted any differently had the proper sentence guidelines been conveyed to him prior to trial.” Essentially, the trial court ruled that Walker failed to show he was prejudiced by counsel’s deficient advice because (with knowledge that life was the maximum sentence) he repeatedly rejected the State’s 20-year plea offer. We find no support in the record for this ruling. Evidence showed that Walker rejected the State’s pre-trial 20-year plea offer prior to learning that life imprisonment was the maximum sentence for rape. But there is nothing in the record showing that, after trial counsel and Walker learned from the prosecutor that life was the maximum sentence, the State re-offered a 20-year plea deal or Walker rejected it. Accordingly, we vacate the trial court’s ruling on the prejudice prong.

We remand the case with directions that the trial court reconsider the prejudice prong and make appropriate factual findings and legal conclusions under the above-stated test in Lafler, supra. For example, assuming that Walker demonstrated a reasonable probability that but for counsel’s deficient advice he would have accepted the pre-trial 20-year plea offer, to establish prejudice, Lafler requires additional findings that the prosecutor would not have withdrawn the plea offer in light of intervening circumstances, or that, assuming the plea offer would have been presented to the court, the court would have accepted its terms. If the trial court finds on remand that Walker failed to show prejudice, then the sentence Walker received at trial is affirmed. If the trial court concludes on remand that the prejudice prong was established under the Lafler standard, then the court must address the proper remedy. The remedy would not be the grant of a new trial; rather, the remedy must address the injury caused by violation of the Sixth Amendment right to effective assistance of counsel during pre-trial plea negotiations “while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.” Lafler, 566 U. S. at 170 (II) (C). Where a defendant declines a plea offer as a result of ineffective assistance of counsel and then receives a greater sentence at trial, the typical case involves “charges that would have been admitted as part of the plea bargain [that] are the same as the charges the defendant was convicted of after trial.” Id. at 171 (II) (C). In these circumstances, which were present in Walker’s case, the court may exercise its discretion to resentence Walker. “[T]he court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Id. at 171 (II) (C). Walker has the right to appeal from the trial court’s decision on the prejudice prong and any resentencing remedy

Decided June 14, 2017.

Margaret E. Heinen, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A. Mallon, Assistant District Attorneys, for appellee.

Judgment of conviction affirmed, sentence affirmed on condition, and case remanded.

Ellington, P. J., and Rickman, J., concur.

       The trial court is not required to accept a plea agreement between the State and the defendant. State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980); Morrison v. State, 276 Ga. 829, 835 (8), n. 25 (583 SE2d 873) (2003). Because “[a] plea agreement is, in essence, a contract between a defendant and the State,” contract rules may apply to disputes involving plea agreements, although, “[g]iven the unique nature of the agreement, we avoid slavish adherence to civil contract principles.” Brown v. State, 261 Ga.App. 115, 116-117 (582 SE2d 13) (2003); Puckett v. United States, 556 U. S. 129, 137-139 (III) (A) (129 SCt 1423, 173 LE2d 266) (2009). The State has the authority to withdraw its consent to a negotiated plea and demand a trial “when it learns that the trial court does not intend to follow the [State’s] sentencing recommendation.” State v. Kelley, 298 Ga. 527, 527 (783 SE2d 124) (2016). The State may at any time withdraw an unaccepted plea offer. State v. Harper, 271 Ga. App. 761, 762 (1) (610 SE2d 699) (2005). Moreover, a defendant has no constitutional right to enforcement of a plea agreement withdrawn by the State after the defendant accepts the plea offer but before the defendant performs under the agreement by pleading guilty. Mabry v. Johnson, 467 U. S. 504 (104 SCt 2543, 81 LE2d 437) (1984), disapproved on other grounds by Puckett, 556 U. S. at 138 (III) (A), n. 1.


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A17A0551.
    SCHROEDER v. DeKALB COUNTY et al.
    (802 SE2d 277)
   McFADDEN, Presiding Judge.

Bobby Schroeder III alleges that the DeKalb County Recorder’s Court falsely reported to the Georgia Department of Driver Services that his driver’s license should be suspended because he had failed to pay a traffic ticket and had failed to appear in court. This false report, he alleges, led to his being arrested and jailed. He also alleges that the practice of the court communicating false information to the department was routine.

Schroeder filed this action for damages, asserting claims under state law and 42 USC § 1983 against the county, the chief judge of the recorder’s court, the court administrator, and three John Doe defendants . The trial court granted the defendants’ motion for judgment on the pleadings, and Schroeder filed this appeal.

We agree with the trial court that Schroeder’s ante litem notice was not timely, so he cannot pursue his state law claims against the county and the individual defendants in their official capacities. But we find that the trial court erred in dismissing Schroeder’s other claims because the defendants have not shown that they are clearly entitled to judgment. So we affirm in part and reverse in part the trial court’s order of dismissal.

1. Allegations in the complaint.

In considering the trial court’s decision on a . . . motion for judgment on the pleadings, we apply a de novo review and thus owe no deference to the decision of the court below. Moreover, we must consider all well-pled material allegations on [Schroeder’s] complaint as true, with all doubts resolved in [his] favor. We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant’s favor. Nevertheless, ... a motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.

Shelnutt v. Mayor and Aldermen of City of Savannah, 333 Ga.App. 446 (776 SE2d 650) (2015) (citations and punctuation omitted). Simply put, a defendant is entitled to a “grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c)... only where there is a complete failure to state a cause of action[.]” Hall v. Sencore, Inc., 302 Ga. App. 367 (691 SE2d 266) (2010). In this case, the defendants’ motion for judgment on the pleadings is the equivalent of a motion to dismiss for failure to state a claim because the defendants did not “introduce affidavits, depositions, or interrogatories in support of their motion.” Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (citation and punctuation omitted). For this reason, “[t]he motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff[ ] would not be entitled to relief under any state of facts which could be proved in support of [his] claim.” Id.

According to Schroeder’s complaint, Schroeder received a traffic ticket in DeKalb County in 2013. He alleged that he appeared in recorder’s court and was ordered to pay a fine and that he timely paid the fine, but the staff of the recorder’s court failed to close his case. Moreover, he asserted, the court staff falsely informed the Georgia Department of Driver Services that Schroeder had failed to appear for his hearing, that he had failed to pay his fine, and that his driving privilege should be suspended. See OCGA § 17-6-11 (b) (providing in part: “The court in which the charges are lodged shall immediately forward to the Department of Driver Services of this state the driver’s license number if the person fails to appear and answer to the charge against him or her. The commissioner of driver services shall, upon receipt of a license number forwarded by the court, suspend the driver’s license and driving privilege of the defaulting person until notified by the court that the charge against the person has been finally adjudicated.”).

In his complaint, Schroeder alleged that on August 9, 2013, an officer with the Rockdale County Sheriff’s Office arrested Schroeder for driving on a suspended license and took him into custody Schroeder asserted that he spent significant time in custody before bonding out. He alleged that on September 26, 2013, an officer with the Newton County Sheriff’s Office arrested Schroeder for driving on a suspended license and took him into custody. According to Schroeder, at the time of his Rockdale County and Newton County arrests, he was on first offender probation; and the Rockdale County and Newton County arrests led to the initiation of probation revocation proceedings for which Schroeder was arrested and jailed from November 12, 2013, until December 10, 2013.

According to Schroeder’s complaint, at some point, the recorder’s court realized that it had provided the Department of Driver Services with incorrect information. Schroeder alleged in the complaint that the court sent a notice of suspension withdrawal to the department. This led to the dismissal of the Rockdale County and Newton County charges and the withdrawal of the probation revocation petition, according to Schroeder. Nonetheless, Schroeder claimed, he lost his job because of these events.

Schroeder alleged in his complaint that at the relevant time, Nelly Withers was the chief judge of the DeKalb County Recorder’s Court and Troy Thompson was the court administrator. According to Schroeder, Judge Withers and Thompson were aware that the recorder’s court was understaffed, dysfunctional, and unable to process its cases, and Judge Withers also knew that the court’s computer systems produced unreliable data because the systems were flawed or because employees routinely entered data incorrectly, and that employees routinely failed to communicate correct information to the Department of Driver Services.

Schroeder sent the county ante litem notice of his claims on November 14, 2014. He filed this action for damages alleging that the defendants failed to perform their ministerial duties with due care and that their actions led to Schroeder’s unlawful arrests. In addition to his state law claims, Schroeder asserted claims under 42 USC § 1983, alleging that the county, through Judge Withers, the final policymaker, and Thompson had violated his constitutional rights by maintaining customs and policies that caused his deprivation of liberty. These customs included chronically understaffing and underfunding the recorder’s court; failing to adequately train employees; failing to implement an audit system that would have caught mistakes; hiring pursuant to a quota system, which increased the rate of errors in the court’s communications with the Department of Driver Services; and failing to adequately discipline and terminate employees. And they knew that these customs and practices repeatedly had led to innocent persons being arrested, yet they failed to correct the problems.

2. State law claims against the county and, the defendan ts in their official capacities.

Schroeder argues that the trial court erred in dismissing his state law claims against the county and the individual defendants in their official capacities. He argues that his OCGA § 36-11-1 notice to the county was timely because his claims did not accrue until the Rockdale County and Newton County charges were dismissed in December 2013. We disagree.

OCGA § 36-11-1 provides: “All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred. . . Generally, “the date the claim accrues [is] the date that suit on the claim can first be brought.” Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329 (245 SE2d 287) (1978). Specifically, a negligence cause of action “accrues . . . when there is a negligent act coupled with a proximately resulting injury.” U-Haul Co. of Western Ga. v. Abreu & Robeson, Inc., 247 Ga. 565, 566 (277 SE2d 497) (1981) (citation omitted). At the latest, Schroeder’s cause of action accrued when he was damaged by his August 9, 2013, arrest in Rockdale County resulting from the recorder’s court allegedly misinforming the Department of Driver Services that Schroeder’s driving privilege should be suspended. See Wallace v. Kato, 549 U. S. 384, 388 (II) (127 SCt 1091, 166 LE2d 973) (2007) (plaintiff can file suit and obtain relief for wrongful arrest “as soon as the allegedly wrongful arrest occurred”). Thus Schroeder’s November 14, 2014, ante litem notice, presented more than 12 months after the Rockdale County arrest, was too late, and his state law claims against the county are barred. Moreover, “[a] lawsuit against a county official in her official capacity is considered a suit against the county, and the official is entitled to assert any defense or immunity that the county could assert[.]” Marshall v. McIntosh County, 327 Ga. App. 416, 419 (2) (759 SE2d 269) (2014) (citations and punctuation omitted). So the trial court properly dismissed Schroeder’s state law claims against the county and the individual defendants in their official capacities. However, because the ante litem notice requirements of OCGA § 36-11-1 do not apply to state law claims against defendants in their individual capacities, see Coweta County v. Cooper, 318 Ga. App. 41, 44 (733 SE2d 348) (2012), or to actions filed pursuant to 42 USC § 1983, see Whitev. City of Atlanta Police Dept., 289 Ga. App. 575, 576 (3) (657 SE2d 545) (2008); Majette v. O’Connor, 811 F2d 1416, 1418 (11th Cir. 1987), we address the dismissal of those claims below.

3. State law claims against the defendants in their individual capacities.

Schroeder argues that the trial court erred in dismissing his state law claims against the defendants, including the John Doe defendants, in their individual capacities on the ground of official immunity, because he alleged the negligent performance of ministerial acts. We agree.

[A] public officer or employee may be personally liable for ministerial acts negligently performed. ... A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis. The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.

Pearce v. Tucker, 299 Ga. 224, 227 (787 SE2d 749) (2016) (citations, punctuation and emphasis omitted). “At this early stage of the case, it was premature for the trial court to conclude that [the defendants’] duties were discretionary rather than ministerial,” Marshall, 327 Ga. App. at 420 (3) (a) (citation and punctuation omitted), because

it cannot be said that the allegations of the complaint disclose with certainty that [Schroeder] would not be entitled to relief under any state of provable facts asserted in support. For example, there conceivably could be evidence of some explicit detailed laundry list of discrete tasks each individual defendant was required to perform .... [I]t does not matter that the existence of such a laundry list is unlikely

Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014) (citation omitted; emphasis in original). Schroeder’s

complaint alleging that [his] injuries were caused by the individual defendants’ negligent performance of ministerial duties satisfies the minimal requirements of notice pleading as set forth in our case law, allowing this lawsuit to survive a motion [for judgment on the pleadings] based on official immunity and to proceed into discovery.

Id. at 776 (Nahmias, J., concurring). Schroeder’s allegations do not show that the defendants in their individual capacities are clearly entitled to judgment on the ground of official immunity, and the trial court erred in dismissing these claims.

4. Judicial immunity.

Schroeder argues that the trial court erred in dismissing his complaint against Judge Withers on the ground of judicial immunity We agree.

“Judicial immunity shields judicial officers from liability in civil actions based on acts performed in their judicial capacity that are not undertaken in the complete absence of all jurisdiction.” Considine v. Murphy, 297 Ga. 164, 169 (3), n. 4 (773 SE2d 176) (2015) (citations omitted); see also Earl v. Mills, 275 Ga. 503, 504 (1) (570 SE2d 282) (2002). As both this court and the United States Supreme Court have explained, judicial immunity

“applies even when [a] judge is accused of acting maliciously and corruptly[;] it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

Maddox v. Prescott, 214 Ga. App. 810, 813 (1) (449 SE2d 163) (1994), quoting Pierson v. Ray, 386 U. S. 547, 554 (87 SCt 1213, 18 LE2d 288) (1967). The same immunity also applies to “officers appointed by the court if their role is simply ‘an extension of the court.’ ” Considine, 297 Ga. at 169 (3), n. 4, quoting West End Warehouses v. Dunlap, 141 Ga. App. 333, 334 (233 SE2d 284) (1977) (special masters are entitled to judicial immunity).

The amended complaint does not allege that the recorder’s court exceeded its jurisdiction when it adjudicated his original citation. The question we face, then, is whether the acts of which Schroeder complains are “judicial acts” to which absolute judicial immunity should apply It is well established that whether an act by a judge is “judicial” depends on “the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity” Stump v. Sparkman, 435 U. S. 349, 362 (II) (98 SCt 1099, 55 LE2d 331) (1978). The United States Supreme Court has held, however, that judges may not claim absolute immunity for acts taken in an administrative rather than adjudicatory capacity, such as “supervising court employees and overseeing the efficient operation of a court,” because such acts “were not themselves judicial or adjudicative.” Forrester v. White, 484 U. S. 219, 229 (IV) (108 SCt 538, 98 LE2d 555) (1988).

This complaint alleges that the judge and staff of the recorder’s court failed in their respective job duties when they set court policy and maintained court customs that they knew to result in the systematic arrest of innocent persons and that actually resulted in the improper processing of Schroeder’s original traffic citation and his later arrest for driving with a suspended license. It is true that under the Code of Judicial Conduct, judges “shall perform judicial and administrative duties competently, diligently, and without bias or prejudice[,] shall maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business.” Canon 2, Rule 2.5 (A) and (B) (emphasis supplied). Rule 2.12 (A) provides that judges “shall require their staffs, court officials, and others subject to their direction and control to observe the standards of fidelity and diligence that apply to the judges[.]” But even if these administrative actions are functions “normally performed by a judge,” neither Judge Withers nor her administrators can claim absolute judicial immunity as to them. This amended complaint successfully pleads that Judge Withers and Thompson were performing “non-judicial” acts when they engaged in administrative functions at the recorder’s court. Accordingly, the trial court erred in dismissing the claims against Judge Withers on the ground of judicial immunity

5. Claims under 42 USC § 1983.

Schroeder enumerates as error the dismissal of his claims under 42 USC § 1983 against DeKalb County, the individual defendants in their official capacities, and the individual defendants, including the John Doe defendants, in their individual capacities.

(a) John Doe defendants.

Although he enumerates as error the dismissal of his 42 USC § 1983 claims against the John Doe defendants, Schroeder’s complaint does not allege claims under 42 USC § 1983 against the John Doe defendants. Nor does Schroeder support his enumeration of error regarding the John Doe defendants with argument. See Court of Appeals Rule 25 (c) (2). Therefore, Schroeder has abandoned any claim of error pertaining to the trial court’s dismissal of any § 1983 claims against the John Doe defendants, and we address only his arguments regarding the county, Judge Withers, and Thompson.

(b) DeKalb County and Judge Withers and Thompson in their official capacities.

A local government such as the [cjounty may not be sued under § 1983foraninjuryinflictedsolelybyitsemploy-ees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. This rule also applies to local government officials sued in their official capacities.

Johnson v. Randolph County, 301 Ga.App. 265, 267-268 (2) (a) (i) (687 SE2d 223) (2009) (citations omitted). In other words, “a county is liable only when the county’s official policy causes a constitutional violation.” Grech v. Clayton County, 335 F3d 1326, 1329 (II) (A) (11th Cir. 2003) (punctuation omitted). To establish the county’s official policy, Schroeder must

identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county. Because a county rarely will have an officially-adopted policy of permitting a particular constitutional violation, most plaintiffs, and [Schroeder], must show that the county has a custom or practice of permitting it and that the county’s custom or practice is the moving force behind the constitutional violation. Under either avenue, a plaintiff (1) must show that the local governmental entity, here the county, has authority and responsibility over the governmental function in issue and (2) must identify those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused the particular constitutional violation in issue.

Id. at 1329-1330 (II) (A) (citations, punctuation and footnote omitted).

The trial court ruled that Schroeder did not allege facts that showed a county policy or custom of widespread miscommunication with the Georgia Department of Driver Services prior to his arrest and that he did not allege facts to show a deliberate county policy or custom of failure to train. We disagree.

Schroeder alleged that the county, through Judge Withers’s actions as a final policymaker, developed and maintained customs and policies that led to the deliberate indifference to his due process rights and his liberty interest. These customs included the chronic understaffing and underfunding of the court staff; the long-term failure to adequately train the staff; and the failure to implement a system to check and reduce error. He alleged that Judge Withers and Thompson had actual knowledge of repeated instances where the actions of the recorder’s court clerks caused innocent people to be arrested, yet they did virtually nothing to correct the problems. “[W]e cannot say at this early pleading stage of the litigation that [Schroeder] will be unable to present evidence demonstrating that” the allegedly wrongful suspension of his driver’s license and violation of his liberty interest were caused by a county policy or custom, as shown through the repeated acts of a final policymaker for the county Shelnutt, 333 Ga. App. at 454 (3). Compare Searcy v. Ben Hill County School Dist., 22 FSupp.3d 1333, 1341 (II) (B) (M.D. Ga. 2014) (plaintiffs failed to state a claim under § 1983 against a local government entity when their allegations concerned the customs and practices of employees instead of the customs and practices that could be attributed to the government entity or to a final policymaker of the government entity).

(c) Judge Withers and Thompson in their individual capacities.

Schroeder argues that the trial court erred in dismissing his 42 USC § 1983 claims in their individual capacities on the ground of qualified immunity. We agree.

Qualified immunity protects officials performing discretionary functions from individual claims brought pursuant to 42 USC § 1983, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The test for determining entitlement to qualified immunity is applied by considering the objective reasonableness of the official’s actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken. The unlawfulness of the action must be apparent to a reasonable official.

Johnson, 301 Ga. App. at 268-269 (2) (a) (ii) (citations omitted). The trial court ruled that Judge Withers and Thompson were entitled to qualified immunity from Schroeder’s 42 USC § 1983 claims against them in their individual capacities because Schroeder failed “to allege specific prior incidents prior to his alleged injuries that could have put [them] on notice that widespread unconstitutional conduct was occurring” and did “not plausibly allege[ ] that [they] were on notice that specific additional training was necessary for [Recorder’s [c]ourt staff, much less that they acted with deliberate indifference resulting in Mr. Schroeder’s arrests.” The court applied the wrong standard.

Under current Georgia law, it is not necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. Rather, the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act.... [I]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Campbell v. Ailion, 338 Ga. App. 382, 384 (790 SE2d 68) (2016) (citations omitted).

Decided June 14, 2017

David C. Ates, for appellant.

Laura K. Johnson, Terry G. Phillips, Shaheem M. Williams, for appellee.

Schroeder alleged that

[Judge] Withers and Thompson had actual knowledge of repeated instances where the recorder [’] s court clerks cause[d] innocent persons to be deprived of their liberty without probable cause. Despite having actual knowledge that ordinary citizens were suffering deprivations of liberty due to the repeated errors of the recorder[’]s court clerks, [Judge] Withers and Thompson did virtually nothing to eliminate or substantially reduce the error rate among the recorder[’s] court clerks.

It is true, as the trial court held, that Schroeder failed to allege specific incidents that occurred prior to his alleged injuries that could have put Judge Withers and Thompson on notice. But at this early stage, it cannot be said that Schroeder will not be able to introduce evidence of the repeated incidents that he alleged, and the trial court erred in dismissing this claim.

Judgment affirmed in part and reversed in part.

Branch and Bethel, JJ., concur.


author: Branch, Judge.

text:
    A17A0554.
    DOBY et al. v. BIVINS.
    (802 SE2d 683)
   Branch, Judge.

Sunkeeya Doby appeals the trial court’s award of summary judgment in favor of the defendant in Doby’s tort suit arising out of an automobile collision. For the reasons that follow, we affirm in part, reverse in part and remand with direction.

On appeal from the grant of summary judgment, we construe the evidence most favorably toward the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013) (citations omitted); see also Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Our review is de novo. Ansley, 293 Ga. at 140 (2). We also review questions of law on appeal under the de novo standard. Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 125 (730 SE2d 514) (2012).

Construed in favor of Doby, the record shows that on January 18, 2014, Doby and her two minor children were involved in an accident in which the other driver, a man, left the scene without providing insurance information. Doby, however, was able to obtain the license tag number of the other vehicle, and she gave that information to the police when they arrived on the scene. The accident report, which Doby attached to her verified complaint, states that the police determined that the other vehicle was registered to “a female named Treneika Bivins.” On May 5, 2015, Doby filed suit, but she named the appellee Lillian Bivins, Treneika’s mother, as the defendant rather than Treneika. In the complaint, Doby alleged that the officer determined that the other vehicle belonged to Lillian. Doby did not allege that either Lillian or Treneika was in the other vehicle at the time of the collision. Instead, she alleged that Lillian must have given permission to use her car to the man who was driving the vehicle at the time of the accident.

Lillian Bivins answered and raised several defenses including that she did not have any authority or control over those responsible for the accident and that she did not cause the accident. And on July 1, 2016, she filed a motion to dismiss or for summary judgment on the ground that she was not the driver of the vehicle involved in the collision; that there was no evidence to support the contention that she owned the vehicle involved in the accident; that, in fact, the officer’s report showed that the vehicle belonged to Treneika, the defendant’s daughter; and that Doby had not shown that the family purpose doctrine applies to the case. Doby did not respond to the motion. Instead, on July 25, 2016, Doby moved to join an indispensable party, namely, Treneika Bivins, on the ground that Treneika was the alleged owner of the vehicle involved in the collision. Doby asserted in the motion that although the accident report states that the other vehicle was registered in the name of Treneika Bivins,

correspondence received in response to Plaintiff’s request for insurance information on both Lillian Bivins and Tre-neika Bivins, only contained the name of Lillian Bivins and not Treneika Bivins. It is unclear as to which of these two individuals was the owner and insured of the car involved in the accident.

In its order on the motions, the court found that there was no allegation that either Treneika or Lillian was in the other vehicle at the time of the collision and that Doby had not established any of the four preconditions to application of the family purpose doctrine against Lillian. With regard to Doby’s motion to add an indispensable party, the court held that even if Treneika had been sued initially, she could only be seen as a joint tortfeasor with the unknown driver, and that therefore she was not an indispensable party to the suit. Relying on Ekokotu v. Pizza Hut, 205 Ga. App. 534, 537 (5) (422 SE2d 903) (1992), the court reasoned that, alternatively, even if Treneika was an indispensable party, because summary judgment was authorized, the motion to add a party was moot. The trial court therefore granted Lillian’s motion for summary judgment and dismissed the complaint with prejudice.

On appeal, Doby asserts that she mistakenly named the wrong party in her lawsuit and that the trial court should have granted her motion to add an indispensable party instead of dismissing her suit with prejudice. She also contends it was error to dismiss the case without ruling on the motion to add Treneika. She argues that Treneika “is the correct party to the lawsuit as can [be] seen from the Police Report attached [to the complaint].” Meanwhile, Doby admits on appeal that “there is no evidence showing [Lillian] as being a co-owner of said vehicle or having any interest whatsoever in the vehicle in question” and “no evidence or allegation that [Lillian] borrowed the vehicle and then loaned it to the unidentified driver who caused the accident.” Thus, Doby admits that she has no claim whatsoever against Lillian Bivins. There is no dispute, therefore, that the Court’s order dismissing the claims against Lillian was correct. The only issue is whether the trial court was required to add Treneika to the suit before doing so.

We agree with Doby that her motion to add a party was not moot. The case of Ekokotu v. Pizza Hut is distinguishable because in that case, the trial court determined that summary judgment was appropriate against the plaintiff because there was insufficient evidence to support the plaintiff’s allegations. Ekokotu, 205 Ga. App. at 537 (5). Therefore the plaintiff’s attempt to add other parties to face baseless claims was moot. Id. Here, on the other hand, the plaintiff’s allegations could have some basis as it appears that Treneika was the proper party and that if the unknown driver was a family member Doby conceivably could have a claim under the family purpose doctrine against Treneika for which Doby was not required to respond in connection with Lillian’s motion for summary judgment. And the fact that Treneika may be considered a joint tortfeasor with the unknown driver does not mean that Doby is not authorized to sue the joint tortfeasor that she wishes to sue. Sloan v. Southern Floridabanc Fed. S & L Assn., 197 Ga. App. 601, 602 (1) (398 SE2d 720) (1990) (“plaintiff has a right of election as to which defendants plaintiff will proceed against”) (citations omitted).

Second, both the parties and the trial court applied the wrong standard to the question of whether Doby should be allowed to add a party to the suit—that of indispensable parties under OCGA § 9-11-14. The proper analysis is under OCGA § 9-11-21, which provides for misjoinder and nonjoinder of parties:

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

See also Benedek v. Bd. of Regents of Univ. System of Ga., 332 Ga. App. 573, 575 (1) (b) (774 SE2d 150) (2015) (“When a party wishes to add or drop a party by amendment, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21, which allows the dropping and adding of parties only by order of the court on motion of any party”) (citation and punctuation omitted); Marwede v. EQR/Lincoln Ltd. Partnership, 284 Ga. App. 404, 405 (1) (643 SE2d 766) (2007) (“Generally, when a plaintiff sues the wrong party, he or she must seek an order of court pursuant to OCGA § 9-11-21 to drop the incorrect party and add the proper party[.]”). When ruling on a motion to add a party, “the trial court may consider whether the new parties will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new parties previously” Benedek, 332 Ga. App. at 575 (1) (b) (citation and punctuation omitted). And “[a]n amendment adding or changing a party may be allowed even though a separate action by or against that party would be barred by the statute of limitation.” Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983); see also OCGA § 9-11-15 (c) (relation back of amendments).

Decided June 14, 2017.

Mack & Harris, Robert L. Mack, Jr., for appellants.

James C. McLaughlin, Jr., Lori E. Brennan, for appellee.

We therefore reverse the trial court’s order to the extent that it found Doby’s motion to add a party to be moot and remand to the trial court with instruction that the court reconsider the merits of the motion to add Treneika based on its discretionary determination of the relevant factors. See Benedek, 332 Ga. App. at 575 (1) (b). We affirm the grant of summary judgment to Lillian.

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

McFadden, P. J., and Bethel, J., concur.

       That doctrine provides: “Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” OCGA § 51-2-2.

       There is a two-part test for imposing vicarious liability under the family purpose doctrine .
      First, the following four preconditions must be found present: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose . Second, and only after the above four “necessary preconditions” have been satisfied, the doctrine renders the defendant vicariously liable if defendant had the right to exercise such authority and control that it may be concluded that an agency relationship existed between defendant and the family member with respect to the use of the vehicle .

        Dashtpeyma v. Wade, 285 Ga. App. 361, 362-363 (2) (646 SE2d 335) (2007) (punctuation and footnote omitted).


text:
    A17A1205.
    EICHENBLATT v. PIEDMONT/MAPLE, LLC et al.
    (801 SE2d 616)
   Andrews, Judge.

In 1995, David L. Eichenblatt and Kaufman Development Partners, L.P (“KDP”) formed Piedmont/Maple, LLC, a real estate investment company that owned and operated commercial real estate located between Piedmont Road and Maple Drive in Atlanta. Following the sale of its final asset in November 2013, Piedmont/Maple sought to distribute its proceeds and dissolve. A dispute arose regarding the amount of money owed Eichenblatt, and, on October 27, 2014, KDP, CraigS. Kaufman (KDP’s general partner), and Piedmont/Maple (collectively, “plaintiffs”) sued Eichenblatt for a declaratory judgment regarding proper asset distribution. Eichenblatt counterclaimed for breach of contract, breach of fiduciary duty, and attorney fees. The trial court subsequently granted the plaintiffs partial summary judgment on the counterclaims. Eichenblatt appeals, and for reasons that follow, we reverse the grant of partial summary judgment.

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. See Humphrey v. JP Morgan Chase Bank, 337 Ga. App. 331 (1) (787 SE2d 303) (2016).

So viewed, the record shows that this is the second time the parties’ business dispute has been before us. See Kaufman Dev. Partners v. Eichenblatt, 324 Ga. App. 71 (749 SE2d 374) (2013). As described in our previous opinion, Eichenblatt and KDP entered into an operating agreement in 1995 that governed Piedmont/Maple’s operation and management. The agreement identified Eichenblatt and KDP as members, set forth management guidelines, and provided that Eichenblatt would receive up to 40 percent of Piedmont/ Maple’s quarterly cash flow distributions. Id. at 72 (1).

At some point, the parties’ business relationship changed, and Eichenblatt was removed as a Piedmont/Maple member via a January 1, 2000 amendment to the operating agreement. Kaufman Dev. Partners, 324 Ga. App. at 72 (1). Pursuant to that amendment, Eichenblatt retained “the right to receive such share of allocations and distributions to which he would otherwise [have been] entitled, but [had] no other powers, rights or privileges of a Member of the Company.” Management of Piedmont/Maple fell to KDP, the only remaining member.

In 2005, KDP refinanced the debt on the Piedmont/Maple holdings, taking out separate loans on the parcels of property fronting Piedmont Road and Maple Drive. In the process, it placed ownership of the property into two single-asset subsidiaries: Piedmont Road, LLC, which owned the Piedmont Road property, and Maple Drive, LLC, which owned the Maple Drive property

The real estate venture ultimately experienced financial difficulties, and Eichenblatt suspected mismanagement by KDP He sued Kaufman, KDP, and several related entities, alleging, among other things, that KDP and Kaufman had mismanaged Piedmont/Maple, breached the amended operating agreement, and ignored their fiduciary responsibilities. The case proceeded to trial in September 2011. The jury awarded Eichenblatt $625,000 against KDP for breach of contract, and we affirmed the resulting judgment. See Kaufman Dev. Partners, 324 Ga. App. at 76 (3). We also rejected KDP’s claim that the $625,000 award extinguished Eichenblatt’s interest in Piedmont/ Maple. Id. As we explained, nothing in the verdict indicated that “the jury intended either for this amount to represent the full value of Eichenblatt’s ownership interest in Piedmont/Maple or for Eichen-blatt to have no interest in Piedmont/Maple going forward.” Id.

The venture continued after the trial, and in September 2012, KDP loaned Piedmont/Maple $3,550,000, which allowed Piedmont/ Maple to pay off outstanding debt on the Maple Road property that had gone into default. This member loan and the associated promissory note carried a greater principal balance than the original indebtedness and a 15 percent interest rate, rather than the 5.61 percent rate associated with the original loan. The note also obligated Piedmont/ Maple to pay fees to KDP and a Kaufman-related real estate entity.

Approximately two months before the member loan and promissory note were issued, Maple Drive, LLC, entered into a contract to sell the Maple Drive property for $5,500,000. The sale closed in April 2013, and the proceeds were used to extinguish the promissory note, interest, and fees owed to KDP on the Maple Drive property. In November 2013, Piedmont Road, LLC, sold the Piedmont Road property for $5,525,000. Following that sale, the plaintiffs sought to wind down and terminate Piedmont/Maple. As part of the dissolution, Piedmont/Maple distributed to Eichenblatt $969,609.23, which it had determined to be 40 percent of its total remaining assets, less certain fees and expenses. Eichenblatt, however, disputed the accuracy of Piedmont/Maple’s calculation and refused to cash the distribution checks.

The plaintiffs subsequently filed this declaratory judgment action to establish the proper dissolution payment. Eichenblatt counterclaimed for breach of contract and breach of fiduciary duty, asserting that KDP and Kaufman had manipulated the Maple Drive member loan to KDP’s advantage and had reduced the value of the Piedmont/ Maple property by selling the Piedmont Road and Maple Drive parcels separately The trial court granted summary judgment to the plaintiffs on these counterclaims, and this appeal followed.

1. Counterclaims Relating to Sale of the Property. Eichenblatt argues that the trial court erred in granting summary judgment on his breach of contract and fiduciary duty counterclaims involving the sale of the Piedmont/Maple property. We agree.

(a) Citing the judgment in the prior lawsuit, the trial court found that res judicata barred the sale-related counterclaims, entitling the plaintiffs to summary judgment. According to the trial court, Eichen-blatt sought damages in both suits based on the value of the Piedmont/ Maple property as an assemblage, rather than as separate parcels. It concluded that because Eichenblatt had already litigated this damage claim in the first suit, he could not raise it again as a counterclaim to the declaratory judgment action.

Res judicata, however, only applies where the cause of action in each suit is “identical.” Haley v. Regions Bank, 277 Ga. 85, 91 (2) (586 SE2d 633) (2003). The term “cause of action” means “the entire set of facts which give rise to an enforceable claim.” Id. (punctuation and emphasis omitted). Thus,

[wjhere some of the operative facts necessary to the causes of action are different in the two cases, the later suit is not upon the same cause as the former, although the subject matter may be the same, and even though the causes arose out of the same transaction.

Id. (citations and punctuation omitted). See also Morrison v. Morrison, 284 Ga. 112, 115 (3) (663 SE2d 714) (2008) (“The fact that the subject matter of different lawsuits may be linked factually does not mean that they are the same ‘cause [.] ”).

In the prior lawsuit, Eichenblatt alleged that KDP’s mismanagement of Piedmont/Maple — including its failure to sell the property as an assemblage before the real estate market declined in 2008 — negatively impacted his share of the venture. Although that litigation ended with a judgment in favor of Eichenblatt for $625,000, his interest in Piedmont/Maple continued. In the present litigation, Eichenblatt claims that following the first trial, KDP and Kaufman once again mismanaged the venture, breached the amended operating agreement, violated their fiduciary duties, and diminished the value of his remaining interest by failing to sell the property for its highest value (which, in his view, was as a combined assemblage). Although the two suits involve the same real estate and both raise issues about property management and valuation, they are not identical for purposes of res judicata. On the contrary, the claims at issue here relate to mismanagement and devaluation of Eichenblatt’s interest after the first trial.

“These claims could not have been raised in the prior lawsuit[ because the underlying circumstances had not yet occurred.” Humphrey, 337 Ga. App. at 335 (2). The trial court, therefore, erred in granting summary judgment based on res judicata. Id.; see also Glen Oak, Inc. v. Henderson, 258 Ga. 455, 458 (2) (c) (369 SE2d 736) (1988) (prior action did not bar claim arising after trial in previous litigation).

(b) On appeal, the plaintiffs argue that even if the prior and current causes of action are not identical, the doctrine of collateral estoppel precludes the sale-related claims. Under this doctrine, “so long as [an] issue was determined in [a] previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995) (footnote omitted). Collateral estop-pel bars an issue that was actually “litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered.” Id. (footnote omitted).

According to the plaintiffs, Eichenblatt’s sale-related counterclaims rest on the same premise as his prior claims — that KDP “should have sold the combined parcels.” (Emphasis in original.) The plaintiffs’ effort to boil Eichenblatt’s allegations down to six words, however, cannot bring collateral estoppel into play At issue here is whether sale of the Piedmont/Maple property breached the amended operating agreement or any fiduciary duty This issue was not and could not have been litigated during the 2011 trial because the April 2013 and November 2013 sales — and the market conditions under which they occurred — had not yet taken place.

(c) Finally, the plaintiffs argue that they were entitled to judgment as a matter of law on Eichenblatt’s sale-related counterclaims because “[t]he only evidence is that it did not make sense” to sell the parcels together in 2013. Eichenblatt offered expert testimony, however, that the appraised value of the combined property exceeded $18 million, well over the amount for which the parcels were sold separately, and that the property should have been marketed as an assemblage. Although the plaintiffs offered contrary evidence, material factual questions exist as to whether KDP and Kaufman mismanaged the sale to Eichenblatt’s detriment.

2. Counterclaims Relating to the 2012 Member Loan. The trial court found that, as a matter of law, Eichenblatt could not establish that the circumstances surrounding the KDP member loan on the Maple Drive property breached the amended operating agreement or any fiduciary duty. Again, we disagree.

Without dispute, the amended operating agreement allowed KDP to loan money to Piedmont/Maple in 2012. According to Eichen-blatt, however, the terms of the member loan violated Section 2.10 of that agreement, which provides:

[Piedmont/Maple] is permitted in the normal course of its business to enter into transactions with any Member . . . provided that the price and other terms of such transactions . . . are fair to [Piedmont/Maple] and are not less favorable to [Piedmont/Maple] than those generally prevailing with respect to comparable transactions . . . between unrelated parties.

The trial court granted summary judgment because it found no evidence that the terms of the 2012 member loan transaction were unfair. But Eichenblatt testified, based on 30 years of experience in the commercial real estate business, that the promissory note issued by Piedmont/Maple to KDP was unfair, given the market conditions. And the evidence showed that the member loan carried significantly higher principal, interest rates, and fees (all of which inured to KDP’s benefit) than the loan it replaced. Moreover, just one year earlier, KDP had obtained a commercial bank loan for the Piedmont Road property that carried a stated interest rate of 5.5 percent, approximately one third of the interest rate associated with the member loan.

On appeal, the plaintiffs cite us to expert evidence that the terms of the member loan and promissory note were reasonable and appropriate. Eichenblatt, however, has pointed to at least some evidence from which a jury could conclude that the high interest rate and fees that directly benefitted KDP and cost Piedmont/Maple money were unreasonable. The trial court, therefore, erred in granting the plaintiffs summary judgment on the loan-related counterclaims. See Dalton v. City of Marietta, 280 Ga. App. 202, 203 (633 SE2d 552) (2006) (“Even slight evidence will be sufficient to satisfy the [claimants’] burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented.”) (citations and punctuation omitted).

3. Admissibility of Expert Testimony. In its summary judgment order, the trial court determined that because res judicata barred the sale-related counterclaims, the sales valuation testimony offered by Eichenblatt and his expert should be excluded as irrelevant. As discussed in Division 1, however, the trial court erred in granting summary judgment based on res judicata. Accordingly, the trial court improperly excluded the testimony as irrelevant.

Decided June 14, 2017.

Hasson Law Group, Keith S. Hasson, for appellant.

Hunton & Williams, Eric Jon Taylor, Peter F. Busscher, Dan iel B. Millman, for appellees.

Seeking to avoid the impact of this evidence, the plaintiffs ask us to affirm the evidentiary exclusion as “right for any reason,” asserting that the expert testimony was “fundamentally flawed and riddled with critical errors.” Although the plaintiffs moved to exclude the evidence on this basis, the trial court did not reach the substance of the motion, and we will not resolve their evidentiary challenge for the first time on appeal. See An v. Active Pest Control South, 313 Ga.App. 110, 115-116 (720 SE2d 222) (2011). Instead, we have considered “whether the record as we now find it — including the opinions of the experts — is enough to get [Eichenblatt] past summary judgment.” Id. at 116.

Judgment reversed.

Ellington, P. J., and Rickman, J., concur.

       Eichenblatt also alleged that the plaintiffs failed to collect rent on the commercial spaces at the property, and he sought attorney fees. The trial court denied summary judgment on these allegations, and the plaintiffs have not appealed that denial.

       Before reaching this conclusion, the trial court found that at least some evidence raised a jury question as to the existence of a fiduciary relationship here. Although the plaintiffs assert on appeal that “KDP does not owe Eichenblatt a fiduciary duty,” they offered no argument or citation of authority supporting this claim. And given the evidence, a jury could determine that KDP and Kaufman exercised a controlling influence over Eichenblatt’s interest in Piedmont/ Maple, placing them in a confidential relationship with Eichenblatt. See OCGA § 23-2-58; Cushing v. Cohen, 323 Ga.App. 497, 508 (5) (746 SE2d 898) (2013) (evidence presented factual questions regarding whether officer of real estate investment firm owed fiduciary duty to the firm’s investors).


author: BARNES, Presiding Judge.

text:
    A17A0607.
    LUNDY v. THE STATE.
    (801 SE2d 629)
   BARNES, Presiding Judge.

Jamal Lundy appeals his conviction for kidnapping with bodily injury, arguing that the evidence was insufficient, he was entitled to a new trial on the general grounds, the trial court should have struck a biased juror for cause, and the jury should have been instructed on lesser included offenses. We find no error and affirm.

Viewed in favor of the verdict, the record shows that around 1:15 a.m. on January 6, 2011, the victim was in her bedroom when Rodney Salter, a friend from the neighborhood, knocked on the door. The victim had used crack cocaine earlier in the day, but was “in [her] right mind” at that point. Salter told her that he needed a ride, which she agreed to provide in exchange for more drugs. The victim met Salter in the driveway, where two other men — whom the victim did not know — also were waiting. The victim got in her car, with Salter in the passenger seat and the other two men in the back, and drove toward a gas station. On the way, Salter spotted Lundy and told the victim to slow down. The victim had seen Lundy “hanging out” before and had previously bought drugs from him. Lundy ran toward them, calling Salter’s name, and the victim stopped to let Lundy inside the car.

The victim continued to the gas station, where Salter bought some gas for her car. Lundy told the victim he had several places to go and would pay her to take him. At Lundy’s request, the victim drove to an apartment building, another gas station, and a convenience store. Lundy then directed the victim down a dark road with abandoned houses, where Lundy got out and later returned with a bag containing a large wrench with a hook on the end. Concluding that the men were “stringing [her] along” and would not be supplying drugs, the victim said she wanted to go home, but Lundy told her he “had to do something.” Lundy instructed her to drive to a liquor store, where she waited in the car while one or more of the men broke a window. The men then ran back to the car, and Lundy told the victim to “drive, drive, drive, drive,” which she did.

The victim again told Lundy that she wanted to go home. Lundy cursed at her, told her “you in it now, we used your car,” and pulled a gun on her. The victim kept driving, following Lundy’s directions. When they reached a secluded area, Lundy ordered the victim out of the car, pointed the gun at her head, and told her to take off her jewelry and clothes, which she did. Lundy then hit the victim in the head with the gun “so hard [she] thought [he] shot her,” and she lost consciousness. When she came to, she was alone and the car was gone. The victim spent six days in the hospital, where she was treated for a head laceration, skull fracture, and cranial bleeding. Her car was later found at an abandoned house.

Salter and Lundy were arrested and charged with hijacking a motor vehicle, armed robbery, kidnapping with bodily injury, aggravated battery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Salter pled guilty to lesser offenses and testified at trial against Lundy The jury found Lundy guilty of kidnapping with bodily injury, but not guilty of the remaining charges.

Lundy moved for a new trial on the general grounds, as well as other bases. The trial court denied the motion, and Lundy appeals, arguing that the evidence was insufficient to support his conviction and that the trial court erred by denying his motion for new trial on the general grounds, denying his motion to strike a juror for cause, and refusing to charge the jury on lesser included offenses.

1. Regarding Lundy’s challenge to the sufficiency of the evidence, our role is to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “Aperson commits the offense of kidnapping when such person abducts or steals away any person without lawful authority or warrant and holds such person against his or her will.” OCGA § 16-5-40 (a). The offense carries a more stringent sentence “if the person kidnapped received bodily injury.” OCGA § 16-5-40 (d) (4).

Lundy does not identify any particular deficiency in the evidence or any element of the crime that was not established. We find that the evidence that he forced the victim at gunpoint to drive to a secluded location was sufficient to establish the offense of kidnapping. See Sipplen v. State, 312 Ga. App. 342, 343-344 (1) (718 SE2d 571) (2011) (evidence was sufficient to establish kidnapping where defendant got inside the victim’s truck, pointed a gun at him, and forced him to drive to a location of the defendant’s choosing). And the evidence that Lundy struck the victim in the head, causing a laceration, skull fracture, and cranial bleeding, was sufficient to establish the bodily injury element of the offense. See Nelson v. State, 278 Ga. App. 548, 551 (3) (629 SE2d 410) (2006) (“Evidence of any physical injury, however slight, satisfies the bodily injury element necessary to establish kidnapping with bodily injury”).

2. Lundy contends that the trial court abused its discretion by denying his motion for new trial on the general grounds. We disagree.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight ofthe evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial — commonly known as the “general grounds” — require the trial judge to exercise a broad discretion to sit as a “thirteenth juror.”

(Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013). “A trial court reviewing a motion for new trial based on these grounds has a duty to exercise its discretion and weigh the evidence and consider the credibility of the witnesses.” Choisnet v. State, 292 Ga. 860, 861 (742 SE2d 476) (2013). If the trial court performs this duty, then we have no basis for reviewing the court’s decision, as “such a decision is one that is solely within the discretion of the trial court.” (Citation and punctuation omitted.) Dixon v. State, 341 Ga. App. 255, 264 (2) (b) (800 SE2d 11) (2017).

In its order denying Lundy’s motion for new trial on the general grounds, the trial court wrote:

Having independently considered the credibility of the witnesses the court — as the 13th juror — hereby approves the jury’s verdict and concludes the verdict for kidnapping with bodily injury was not decidedly and strongly against the weight of the evidence [and] ... is not contrary to the principles of justice and equity

As the order reflects that the trial court performed its duty using the proper legal standard, we have no basis for disturbing the court’s exercise of discretion. Dixon v. State, 341 Ga. App. at 264 (2) (b); see also Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671) (2017).

3. Lundy argues that the trial court erred by denying his motion to strike Juror No. 1, who initially expressed doubt about her ability to be fair and impartial because of her experience as a crime victim. We conclude, however, that the trial court did not abuse its discretion.

Under Georgia law, jurors are presumed to be impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified. Wheeler v. State, 327 Ga. App. 313, 314 (1) (758 SE2d 840) (2014). “[B]efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” (Citations and punctuation omitted.) Douglas v. State, 340 Ga. App. 168, 169 (1) (796 SE2d 893) (2017). “A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences.” (Citation and punctuation omitted.) Remillard v. Longstreet Clinic, 267 Ga. App. 230, 234 (2) (a) (599 SE2d 198) (2004). Rather, whether to strike a juror for cause lies within the “extremely broad discretion” of the trial court, Kim v. Walls, 275 Ga. 177, 179 (563 SE2d 847) (2002), which “is uniquely positioned to observe a potential juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.” (Citation and punctuation omitted.) Wheeler v. State, 327 Ga. App. at 315 (1); see also Jones v. State, 338 Ga. App. 505, 505 (790 SE2d 301) (2016).

During voir dire, Juror No. 1 disclosed that she had previously been robbed at gunpoint, that she had testified against her assailant at trial, and that the assailant was still incarcerated for that crime.

The prosecutor questioned the juror as follows:

[PROSECUTOR]: [A]nything about that experience that you think would prevent you from being fair and impartial to the State and the defense in this case?
[JUROR]: Uh-huh.
[PROSECUTOR]: You think there is?
[JUROR]: Uh-huh.
[PROSECUTOR]: Tell us about that.
[JUROR]: Because it happened to me, and my life has never been the same since that happened to me.
[PROSECUTOR]: Okay
[JUROR]: So I feel that I would be unfair to [Lundy] by [being] up here today

The prosecutor began asking the juror whether she could set aside her personal experience, but defense counsel objected before the juror could answer. The court overruled the objection, and the questioning continued.

[PROSECUTOR]: Would you be able to hold the State to its burden of proving the case beyond a reasonable doubt, listening to the evidence, the witnesses in the case, along with the law the judge would give and decide this case based on its own particulars?
[JUROR]: Uh-huh.
[PROSECUTOR]: You’d be able to be fair —
[JUROR]: I would.
[PROSECUTOR]: — to the State and the defense?
[JUROR]: I would.

Defense counsel then questioned Juror No. 1:

[DEFENSE COUNSEL]: [W]hen the State first asked you whether this would impact your ability to be impartial, didn’t you state yes?
[JUROR]: Yes.
[DEFENSE COUNSEL]: Okay And then later on she asked it a couple of more times and then you changed your answer?
[JUROR]: Uh-huh.
[DEFENSE COUNSEL]: So which is it, can you be fair and impartial or not?
[JUROR]: Yes, I can.
[DEFENSE COUNSEL]: And you’re sure of that?
[JUROR]: I’m sure.
[DEFENSE COUNSEL]: Then why did you answer earlier that you couldn’t be?
[JUROR]: Because it just the effect that it [has] on me, but I can be fair. She asked me could I look beyond that and I can. I will try to.

Defense counsel later moved to strike Juror No. 1 based on her original response that she could not be fair, arguing that she changed her answer only because she realized that she would be struck from the jury if she did not do so. The trial court denied the motion. The court stated that it had been “struck by [the juror] and watched her” and that he believed her original response was a “knee-jerk response” to the prosecutor’s questioning, which “occurs a lot of times before [potential jurors] start really thinking about what they’re doing.” The court noted that the juror “came back and she said I can be fair and impartial and I can look beyond my personal experience.” Based on the juror’s “demeanor” and “voice,” the court was “satisfied that she can be fair and impartial.” Lundy maintains that Juror No. 1 should have been struck based on her original statement that she could not be fair.

After a juror has expressed doubts about her ability to be fair and impartial, “[t]he parties and the trial court are permitted to ask questions that might rehabilitate [the] juror, but it is improper to browbeat the juror into affirmative answers to rehabilitative questions by using multiple, leading questions.” (Citation and punctuation omitted.) Clarke v. State, 325 Ga. App. 472, 473 (753 SE2d 134) (2013). The record shows that the prosecutor did not ask Juror No. 1 the same question multiple times. Rather, the prosecutor explored the juror’s professed bias by asking what had happened to her and whether she could nevertheless hold the State to its burden of proof. The juror “confirmed that [s]he could be fair and impartial in reaching a verdict and that [s]he would not let [her] past experiences affect [her] ability to reach a verdict.” Id. at 474 (a). Based on the juror’s responses, demeanor, and voice, the trial court determined that the juror could be fair and impartial despite her personal experiences. Under these circumstances, we find no abuse of the trial court’s “extremely broad discretion.” Kim v. Walls, 275 Ga. at 179; see also Clarke v. State, 292 Ga. 305, 307-308 (2) (737 SE2d 575) (2013) (trial court did not abuse discretion by declining to strike juror who initially expressed reservations about her impartiality but ultimately confirmed that she could be fair).

4. Lundy complains that the trial court erred by denying his requests to charge the jury on the lesser included offenses of false imprisonment and kidnapping.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no eviden ce raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citation and punctuation omitted; emphasis in original.) Brown v. State, 275 Ga. App. 99, 103 (3) (c) (619 SE2d 789) (2005). Here, the trial court did not err because there was no evidence raising the lesser offenses.

(a) False imprisonment. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). The difference between kidnapping and false imprisonment is “the element of asportation.” Curtis v. State, 310 Ga. App. 782, 787 (2) (714 SE2d 666) (2011). Atrial court should give a charge on false imprisonment as a lesser included offense of kidnapping “when the evidence supports a theory that the victim was falsely imprisoned without having been asportated in the manner alleged by the State.” Brown v. State, 275 Ga. App. at 104 (3) (d). In this case, the State presented evidence that Lundy detained the victim inside her car and made her drive to a secluded location. Although Lundy challenged the credibility of the State’s witnesses, he presented no evidence of any alternative scenario involving detention without aspor-tation. Thus, there was no evidence of false imprisonment, and the trial court did not err by refusing to charge the jury on that offense. See id.; Harrell v. State, 253 Ga. App. 691, 695 (4) (a) (560 SE2d 295) (2002) (court did not err by refusing to give false imprisonment charge where “[t]he evidence [did] not show that [the victim] was falsely imprisoned without being forced to drive where [the defendant] instructed him to go”).

(b) Kidnapping. “[K]idnapping is a lesser included offense of kidnapping with bodily injury, lacking only the element of bodily injury.” (Citation and punctuation omitted.) Harrell v. State, 253 Ga. App. at 695 (4) (a). Here, both the victim and Salter — the only two eyewitnesses who testified at trial — stated that Lundy hit the victim in the head with a gun or gun-like object, and the physicians who treated the victim testified that her injuries likely resulted from a blow to the head by a blunt object. There was no evidence that the victim’s injuries occurred in any other manner. In the absence of any such evidence, the trial court did not err by not instructing the jury on simple kidnapping. See Sears v. State, 268 Ga. 759, 766 (16) (a) (493 SE2d 180) (1997) (no error in refusing to give charge on simple kidnapping where the issue for the jury was “whether [defendant] participated in the crime, not whether the bodily injury occurred”).

Decided June 15, 2017.

Kenneth W. Sheppard, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Michael V. Snow, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       See Sachtjen v. State, 340 Ga. App. 612, 612 (798 SE2d 114) (2017).

       The juror also stated that her brother had been tried for aggravated assault, her teenaged son had been shot in the leg accidentally, and she owned a gun for protection.

       Lundy points out that the physician who examined the victim during the latter half of her hospital stay testified that it was “possible” that her injuries resulted from falling and striking an object. (The other physician, who treated her the day she arrived, testified that the injuries “would be from” a blow to the head rather than a fall because falls typically cause abrasions, which the victim did not have.) But as the State points out in its brief, the physician’s “speculative response that the wound itself could be the result of a fall, is not evidence that the victim fell. It is merely the opinion of [the physician] that he could not rule out a fall as the cause of the injury.”


text:
    A17A1292.
    DeKALB COUNTY v. SPEIR et al.
    (801 SE2d 627)
   Andrews, Judge.

In May 2013, DeKalb County condemned 0.069 acres of land located at the intersection of Lavista Road and Oak Grove Road for road and sidewalk improvements. Following a trial to establish just and adequate compensation, the jury awarded $313,000 to Jack Speir, the property owner, and $671,000 to Oe Gon Kim and J. K. Cleaners, Inc. (collectively “J. K. Cleaners”), owner/operator of the dry cleaning business that leased the property. The trial court entered judgment on the verdict, and the County appeals. For reasons that follow, we affirm.

The evidence shows that prior to the road work associated with the condemnation, J. K. Cleaners’ business sat on a “prominent corner” with three driveways that allowed cars to enter and exit the site easily from Lavista Road or Oak Grove Road. The road improvements, however, closed two of the three driveways and reduced the overall property size, significantly impacting access to the business and restricting the available parking area. According to the County’s appraiser, the alterations rendered the property’s use as a dry cleaning business “precarious” and not viable.

The parties offered conflicting expert testimony regarding the amount of just compensation owed following the taking. With respect to J. K. Cleaners, the County’s expert testified that the business had experienced a loss in value of $101,000. J. K. Cleaners’ business appraiser, however, valued the loss much higher, asserting that the business was worth $440,000 before the taking and had no value after, given the extreme alterations to the site. He further testified that J. K. Cleaners was obligated to continue making payments under its lease on the property through 2017, resulting in further losses of $400,984. Adding these two loss values together, the expert calculated just and adequate compensation for J. K. Cleaners as $841,000.

Prior to trial, the County moved in limine to exclude evidence regarding J. K. Cleaners’ post-taking lease obligations. The trial court denied the motion and admitted the evidence. In its sole enumeration of error on appeal, the County challenges this eviden-tiary ruling.

We find no error. A lessee that operates a business on condemned property may recover post-taking business losses as an element of just and adequate compensation “if the property is ‘unique’ and the loss is not remote or speculative.” Dept. of Transp. v. Acree Oil Co., 266 Ga. 336-337 (1) (467 SE2d 319) (1996). Business loss evidence, therefore, “is admissible in a condemnation action where such losses are sought as a separate element of damages as to unique or peculiar property as well as when such evidence shows a diminution of value of the land not taken.” Dept. of Transp. v. Arnold, 243 Ga. App. 15, 18 (1) (530 SE2d 767) (2000).

J. K. Cleaners offered testimony that the condemned property, with its particular location and multiple access points, was unique, raising a jury question on uniqueness. See Toler v. Dept. of Transp., 328 Ga.App. 144, 146(1) (761 SE2d 550) (2014) (“Theissueofwhether a business property is ‘unique’ so as to support an award of business loss is a question for the jury.”). The presentation of business loss evidence, therefore, was appropriate. See Arnold, supra at 18 (1). The County argues, however, that such evidence should have been limited to the market value of the business before the taking and immediately after, and should not have included any discussion of future, post-taking lease liability.

We disagree. Generally, “[t]he correct measure of damages that a lessee condemnee can recover for damage to his business is the difference in market value of the business prior to and after the taking.” Action Sound v. Dept. of Transp., 265 Ga. App. 616, 619 (2) (594 SE2d 773) (2004) (citation and punctuation omitted). As we have explained, however, “[e]vidence of any business losses which result in a diminution of the value of a condemnee’s business is admissible.” Id. (citation and punctuation omitted; emphasis in original). J. K. Cleaners’ appraiser testified that the taking not only depleted all value from the dry cleaning business but also saddled the company with a worthless lease obligation that it was contractually obligated to pay for several more years. Based on this testimony, counsel argued to the jury that the circumstances created a negative market value for which the company should be compensated:

I think of this argument as a less than zero argument. [The County] made the value of the business less than zero. [The County] made it where not only would someone not pay you for it, it’s a liability . . . After the taking, you’ve got less than zero, because you’ve got $400,000 in rent liability, so it’s less than zero.

J. K. Cleaners connected the future rent payments to the market value of its business just after the taking, bringing this evidence within the ambit of business loss. See Old South Bottle Shop v. Dept. of Transp., 175 Ga. App. 295, 296 (2) (333 SE2d 127) (1985) (trial court erred in excluding business loss testimony regarding cash flow where testimony related to the value of the business). Although the County argues that the evidence was speculative, J. K. Cleaners’ appraiser based his testimony on contractual obligations existing at the time of the taking, and factual questions remained for the jury as to whether the dry cleaner made reasonable efforts to mitigate or minimize these obligations. See Davis Co. v. Dept. of Transp., 262 Ga. App. 138, 143 (3) (584 SE2d 705) (2003) (extent to which condemnee mitigated his business losses was question for the jury). Moreover, we find no merit in the County’s claim that introduction of the post-taking lease liability resulted in a double recovery here. It is true that J. K. Cleaners’ appraiser considered the company’s business expenses — including its lease payment — when placing a pre-taking value on the business. Nothing indicates, however, that the appraiser factored the company’s future lease requirement into the pre-taking valuation. We fail to see, therefore, how consideration of the post-taking obligations created a double recovery.

There is a “long-established policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee.” Evans v. Dept. of Transp., 331 Ga. App. 313, 317 (1) (771 SE2d 20) (2015) (citation and punctuation omitted). And ultimately, “[i]t is within the sound discretion of the trial court to admit or deny admission of such evidence [regarding business loss] when causation of such loss is in question.” Arnold, supra at 18 (1). Given the particular circumstances of this case, the trial court properly exercised its discretion in admitting evidence of J. K. Cleaners’ post-taking lease obligation. See Evans, supra at 315 (1) (“The grant or denial of a motion in limine is reviewed only for an abuse of discretion.”). Accordingly, we affirm.

Decided June 15, 2017

Jarrard & Davis, Christopher J. Hamilton, Sarah VanVolken-burgh, for appellant.

Barnes Law Group, Roy E. Barnes; Lewis Brisbois Bisgaard & Smith, Jason P. Wright, Sheri Bagheri, for appellees.

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur.