author: Adams, Judge.

text:
    A10A1862.
    MAYFIELD v. THE STATE.
    (705 SE2d 717)
   Adams, Judge.

Elizabeth Mayfield pleaded guilty to arson in the first degree and was sentenced to fifteen years, one to serve, with the balance on probation. Following a hearing on the matter, she was ordered to pay restitution in the amount of $28,299.38 to Christopher Kanche. She appeals only the award of restitution and argues that the trial court failed to make specific written findings on the relevant factors, that the evidence was insufficient to show Kanche was the person to whom restitution was owed, and that the evidence was otherwise insufficient to establish the amount of the award.

1. With regard to the form of the court’s findings, this Court has held that a court or other ordering authority is “no longer required to make written findings when ordering an offender to make restitution.” McCart v. State, 289 Ga. App. 830, 832 (1) (658 SE2d 465) (2008). Accordingly, Mayfield’s claim that the trial court erred by failing to make written findings of fact is without merit.

2. Mayfield contends the evidence was insufficient to support the award. “[T]he proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence.” OCGA § 17-14-7 (b). And “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the state.” Id. “On review of a restitution order, the appellate court has the duty of reviewing the transcript to determine whether each party has met his or her specified burden and determining whether a restitution award was supported by the preponderance of the evidence.” (Citations, punctuation and footnote omitted.) McClure v. State, 295 Ga. App. 465, 466 (673 SE2d 856) (2009).

(a) Mayfield asserts the evidence was insufficient to show that Kanche owned the property on the date of the fire. Kanche, a real estate investor, testified that he owned the house, which is located at 964 Donnelly Avenue in Atlanta, and that he bought it in 2006. On cross-examination, Mayfield introduced a computer printout from the Fulton County Tax Assessors office suggesting that Kanche had sold the property on April 13, 2007. On re-direct, Kanche testified that the printout reflects that he sold a portion of his land but not the house. Mayfield had no rebuttal. The court was authorized to find that the preponderance of the evidence showed Kanche owned the house at the time of the fire.

(b) Mayfield also complains that there was no reliable evidence of the amount of damages, that Kanche failed to prove fair market value of the house before and after the damage, and that Kanche lacked sufficient knowledge to opine regarding damages. We conclude the evidence was sufficient and no error occurred.

Under the restitution statute, with certain exceptions not applicable here, a victim of property damage is entitled to “all special damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” OCGA § 17-14-2 (2). See also McMahon v. State, 284 Ga. App. 192, 195 (3) (643 SE2d 236) (2007) (court must determine proper measure of damages for the type of civil action victim could assert).

“The general rule for the measure of damages involving real property is the diminution of the fair market value of the property and/or the cost of repair or restoration. [Cit.]” Allgood Road United Methodist Church v. Smith, 173 Ga. App. 28, 29 (2) (325 SE2d 392) (1984) (flooding damage to house). See also City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 4 (5) (421 SE2d 113) (1992) (damage to interior of building from ruptured steam valve); Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co., 152 Ga. App. 259, 265 (3) (262 SE2d 554) (1979) (building destroyed by fire). Repair or restoration costs can be used even though they exceed the diminution in value of the property, Ga. Northeastern R. v. Lusk, 277 Ga. 245, 247 (2) (587 SE2d 643) (2003), but they are limited where “restoration to the condition at the time of destruction would ‘be an absurd undertaking.’ ” (Citations and punctuation omitted.) NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344, 349-350 (4) (223 SE2d 732) (1976). As stated more generally by the Supreme Court,

[t]he cost of restoration may not be disproportionate to the diminution in the property’s value. Rather, “ ‘the cost of repair must be reasonable and bear some proportion to the injury sustained.’ (Cit.)” [Cit.]

Ga. Northeastern, 277 Ga. at 247 (2).

Here, Kanche testified that prior to August 1, 2009, the date of the fire, the house, located in Atlanta, was worth “about $170,000,” that it had three bedrooms and two baths, and that the fire rendered the house unlivable. He testified that, as a result of the fire, the house required a new roof, complete rewiring, new plumbing, new framing and drywall, all new windows and doors, new kitchen cabinets, new flooring, and a fresh coat of paint. The repairs were necessary to enable him to again rent the house to tenants. Kanche testified that he repairs houses himself, and that, in his own estimation as a contractor, the total cost of the repairs — labor plus materials — would be $41,925. Thus, evidence was presented to show the cost of repairs and its relation to the value, of the house prior to the fire, in accordance with the law of damages to real property.

The fair market value of the home prior to and after the fire was not a necessary element of the claim. Cf. John Thurmond & Assocs. v. Kennedy, 284 Ga. 469, 471 (668 SE2d 666) (2008) (involving damages to real property resulting from negligent construction and breach of contract). The cases cited by Mayfield are distinguishable because they involve personalty. See, e.g., In the Interest ofE. W, 290 Ga. App. 95 (658 SE2d 854) (2008) (automobile); Cardwell v. State, 225 Ga. App. 337, 338 (484 SE2d 38) (1997) (automobile and CD player) (“[flair market value is the measure of such damages and it must be determined exactly”); Lomax v. State, 200 Ga. App. 233 (407 SE2d 462) (1991) (automobile). Moreover, neither Cardwell nor the other cited cases can be read to limit the type of damages available in all restitution cases. As has been previously stated regarding Cardwell,

to hold that such measure is appropriate in all restitution cases would be to ignore the statutory scheme established and the myriad measure of damages possible, depending upon the acts of the offender, how the property was disposed, any recovery, the condition of property recovered, and the type of property involved.

(Citation and punctuation omitted; emphasis in original.) Barnes v. State, 239 Ga. App. 495, 500 (2), n. 4 (521 SE2d 425) (1999). In short, sufficient evidence was presented to show the cost of repairs and that repairs were not an absurd undertaking under the circumstance.

Decided January 26, 2011.

Kathryn R. Elwart, for appellant.

(c) Mayfield also argues the State failed to establish a foundation for Kanche’s knowledge of the repair costs. She contends, therefore, the estimated repair cost was “mere conjecture.”

“Direct testimony as to market value is in the nature of opinion evidence.” OCGA § 24-9-66. The witness must be shown to have adequate relevant knowledge and must give reasons for his or her opinion.

Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.

(Footnote omitted.) John Deere Constr. &c. Co. v. Mark Merritt Constr., 297 Ga. App. 743, 744 (678 SE2d 183) (2009).

Here, Kanche testified that he is a real estate investor, that he repairs houses, and that he has done contracting work. He testified that he had owned the relevant house for about four years and that he lived in the house for a while. He inspected the property after the fire, took many pictures, and listed the items that needed repair. He analyzed the different items that needed to be repaired, such as gutters, roof, plumbing, etc. He obtained an estimate from a contractor regarding the repairs but chose to prepare an estimate himself.

“One need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion. The owner of property is considered to be qualified to state his opinion as to value.” (Citations and punctuation omitted; emphasis in original.) Barnes, 239 Ga. App. at 498 (1); OCGA § 24-9-66. The evidence of Kanche’s background provides some evidence to show that he had knowledge, experience or familiarity with the cost of repairs, the value of real estate, and the extent of the damages to his property. We find no error.

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, for appellee.

       We have not considered the documents in the supplemental record because they were not in evidence before the trial court at the time of the decision.

      The restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act in the usually earlier criminal proceedings rather than in a second and more protracted civil suit. Consequently, the amount of restitution ordered may not be more than the victim’s damages.
      (Punctuation and footnotes omitted.) Beall v. State, 252 Ga. App. 138, 139 (1) (555 SE2d 788) (2001). See also OCGA § 17-14-9.

       Cf. John Thurmond & Assocs. v. Kennedy, 284 Ga. 469, 470 (1) (668 SE2d 666) (2008) (“As a general rule, damages for defective construction, whether those damages are the result of a breach of contract or negligence of the contractor, are determined by measuring the cost of repairing or restoring the damage, unless the cost of repair is disproportionate to the property’s probable loss of value. [Cits.]” Damages may also be measured by “the diminution in value of the property after the injury occurred.”).

       Also, Cardwell relies on Gaskin v. State, 221 Ga. App. 142 (470 SE2d 531) (1996), but that case merely clarified that replacement cost may not be substituted for fair market value when determining damages for the total destruction of property.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A10A2292.
    MUCKLE v. THE STATE.
    (705 SE2d 721)
   BARNES, Presiding Judge.

Virginia Muckle was convicted of and sentenced for the crimes of voluntary manslaughter and aggravated assault in connection with the fatal stabbing of her estranged boyfriend. Muckle appeals from the denial of her motion for a new trial, contending that the trial court erred in denying her motion for a directed verdict of acquittal. Concluding that the jury was authorized to reject Muckle’s affirmative defenses of self-defense and defense of habitation, we affirm the judgment of conviction for voluntary manslaughter. However, because the aggravated , assault conviction should have been merged into the voluntary manslaughter conviction, we vacate the conviction and sentence for aggravated assault and remand to the trial court for resentencing.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Jackson v. State, 236 Ga. App. 260, 260-261 (511 SE2d 615) (1999). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this manner, the evidence showed that Muckle and the victim were involved in a volatile “on and off” relationship that spanned several years. Approximately two weeks prior to the stabbing, the victim moved out of Muckle’s apartment, but he continued to come over and visit her after that time. On the night of June 22, 2002, Muckle returned home to her apartment after work, where she was joined by the victim. They began to argue, and the confrontation escalated from angry words to objects being thrown. Muckle stabbed the victim in the chest with a knife, and he died several months later as a result of complications arising from the chest wound. There were no visible signs of any injuries to Muckle.

Muckle was arrested and indicted on charges of voluntary manslaughter and aggravated assault. See OCGA §§ 16-5-2 (a); 16-5-21 (a) (2). Count 1 of the indictment averred that Muckle committed voluntary manslaughter in that during the commission of an “aggravated assault, [she] cause[d] the death of the [victim], by stabbing him with a knife while acting solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” Count 2 of the indictment averred that Muckle committed aggravated assault in that she did “unlawfully commit an assault upon the [victim] by stabbing him with a knife, an object which when used offensively against a person is likely to result in serious bodily injury.”

A jury trial ensued in which the State and Muckle presented widely divergent accounts of the stabbing. The State relied upon the eyewitness testimony of a neighbor who lived in the apartment that adjoined Muckle’s. The neighbor testified that when she heard fighting and “things hitting the walls” next door, she stepped outside onto her doorstep to find out what was going on. From that vantage point, she could see and hear inside Muckle’s apartment. According to the neighbor, she observed Muckle and the victim arguing in the kitchen, and then Muckle “asked [the victim] to leave her house and as he was walking out the door, he turned around and she stabbed him.” The neighbor testified that the victim had not made any threatening gestures or statements to Muckle prior to being stabbed. The neighbor further testified that after the stabbing, the victim staggered away from Muckle’s apartment and lay down on the sidewalk. The neighbor by her own account then attempted to assist the victim, but Muckle came over to the victim, spat on him, repeatedly kicked him in the rib cage, and said, “Let the mother-f***er die!” The neighbor’s daughter similarly witnessed Muckle’s conduct while the victim was lying on the sidewalk and testified consistently with her mother’s account.

In contrast, Muckle admitted to fatally stabbing the victim but claimed that the act was justified as self-defense and as defense of her habitation. She presented witnesses who testified to prior incidents in which the victim was aggressive toward her or threatened her. Muckle also took the stand and testified concerning prior incidents in which the victim allegedly physically attacked her. She further testified that on the night of the stabbing, the victim had forced his way into her apartment without her permission and attacked her after accusing her of having another man inside. According to Muckle, the victim chased her into her kitchen, cornered her next to the sink, and started to choke her, at which point she grabbed a steak knife from the sink and stabbed him one time. Muckle denied attacking the victim on the sidewalk following the stabbing.

Muckle, however, admitted that she initially lied to the police about what had occurred, telling the responding officers that three “dope boys” had kicked in the front door and chased the victim around the apartment before stabbing him, despite the fact that there was no evidence of a forced entry. Muckle further admitted that she hid the knife after the stabbing so that the police would not locate it, and that in a prior incident she had struck the victim in the head with a telephone.

To rebut Muckle’s account of the incident, the State introduced a prior inconsistent statement in which Muckle confided to a relative that on the night in question, the victim had knocked at her front door and had come inside her apartment only after she gave him permission to do so. The State also presented testimony from a detective that no blood or any other sign of an altercation had been found in the kitchen area where Muckle claimed that the stabbing had occurred. But, the detective related, blood had been found on and around the front door, consistent with the neighbor’s version of events.

Following the close of evidence, the trial court charged the jury on, ámong other things, the affirmative defenses of self-defense and defense of habitation. After hearing the conflicting evidence, the jury returned a verdict of guilty on both counts of the indictment. The trial court entered judgments of conviction on both counts and sentenced Muckle to concurrent 15-year terms of imprisonment. Muckle moved for a new trial, which the trial court denied. This appeal followed.

1. Voluntary Manslaughter. Muckle argues that the trial court erred in denying her motion for a directed verdict of acquittal on the voluntary manslaughter count because the State failed to disprove beyond a reasonable doubt her affirmative defenses of (a) self-defense and (b) defense of habitation. See generally Burchett v. State, 283 Ga. App. 271, 273 (2) (641 SE2d 262) (2007) (once evidence of an affirmative defense is presented, “it then [is] incumbent upon the State to disprove the defense beyond a reasonable doubt”). We disagree and instead conclude that the evidence was sufficient to authorize a rational trier of fact to find Muckle guilty beyond a reasonable doubt of voluntary manslaughter. Jackson, 443 U. S. 307. See OCGA § 16-5-2 (a).

(a) Self-Defense. “A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself. . . against such other’s imminent use of unlawful force[.]” OCGA § 16-3-21 (a). But “a person is not justified in using force in self-defense if he is the initial aggressor or engages in mutual combat, unless he withdraws from the encounter and notifies the other participant that he is doing so.” McKee v. State, 280 Ga. 755, 756 (2) (632 SE2d 636) (2006). Nor does the continued use of force after the “imminent danger justifying self-defense ha[s] passed” qualify as self-defense. (Citation and punctuation omitted.) McDonald v. State, 170 Ga. App. 884, 885 (2) (318 SE2d 749) (1984). See Young v. State, 188 Ga. App. 601 (373 SE2d 837) (1988). Likewise, conduct cannot be justified as self-defense if the amount of force used by the person to defend himself or herself is excessive. Richards v. State, 288 Ga. App. 814 (655 SE2d 690) (2007).

Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find that Muckle’s stabbing of the victim was not justified as an act of self-defense. See Smith v. State, 249 Ga. App. 736, 736-738 (550 SE2d 106) (2001); McGuire v. State, 243 Ga. App. 899, 899-900 (1) (534 SE2d 549) (2000). The neighbor’s eyewitness testimony, standing alone, was sufficient to support a finding that Muckle was the aggressor, continued to use force after any imminent danger posed by the victim had passed, or used excessive force. See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). The jury also was entitled to rely upon the evidence (by Muckle’s own admission) that she lied to the police about the stabbing and hid the knife. See Fortune v. State, 304 Ga. App. 294, 297 (1) (696 SE2d 120) (2010) (lying to police and attempting to discard evidence can serve as circumstantial evidence of guilt). The jury, moreover, could consider Muckle’s admission that in a prior incident she struck the victim in the head with a telephone. See Buice v. State, 281 Ga. App. 595, 596 (1) (636 SE2d 676) (2006) (noting that evidence of prior difficulties “most certainly demonstrated the state of the relationship between appellant and the victim,” and was “highly relevant” to show the appellant’s “abusive bent of mind” toward the victim) (citation and punctuation omitted). And although Muckle offered testimony that conflicted with the State’s version of events, it was the role of the jury, not this Court, to assess the credibility of the witnesses and decide whose testimony to accept or reject. See McGuire, 243 Ga. App. at 900 (1). Accordingly, Muckle was not entitled to a directed verdict of acquittal on the voluntary manslaughter count predicated on her claim of self-defense.

(b) Defense of Habitation. “A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation.” OCGA § 16-3-23. For purposes of the present case, deadly force would be justified only if

[t]he entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence[.]

OCGA § 16-3-23 (1).

Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find that Muckle’s stabbing of the victim was not justified as defense of her habitation. See Zachery v. State, 199 Ga. App. 891 (406 SE2d 243) (1991). The jury was authorized to rely upon Muckle’s prior inconsistent statement to her relative to conclude that the victim’s entry into the apartment was not “violent and tumultuous.” See Buice, 281 Ga. App. at 596 (1) (prior inconsistent statements of a testifying witness constitute substantive evidence upon which a jury can rely in convicting a defendant). Based upon the eyewitness testimony of the neighbor, the jury also was authorized to find that the victim “was unarmed and that deadly force was not necessary for [Muckle’s] protection.” Zachery, 199 Ga. App. at 893. Consequently, Muckle was not entitled to a directed verdict of acquittal on the voluntary manslaughter count predicated on her claim of defense of habitation.

2. Aggravated Assault. There was sufficient evidence to support Muckle’s aggravated assault conviction for the same reasons discussed in Division 1. Jackson, 443 U. S. 307. See OCGA §§ 16-5-20 (a); 16-5-21 (a) (2). Nevertheless, the trial court erred in entering a judgment of conviction and sentence for aggravated assault because that conviction should have been merged into the voluntary manslaughter conviction.

Decided January 26, 2011.

Mary Erickson, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

“Georgia law bars conviction and punishment of all crimes which arise from the same criminal conduct and are as a matter of law or a matter of fact included in the major crime for which the defendant has been convicted.” Verdree v. State, 299 Ga. App. 673, 683 (6) (683 SE2d 632) (2009). See OCGA § 16-1-7 (a); Drinkard v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006). Here, a separate judgment of conviction and sentence for aggravated assault would be authorized only if the indictment averred, and the State proved, that Muckle “commit[ted] an aggravated assault independent of the act which caused the victim’s death.” Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009). See also Mikell u. State, 286 Ga. 722, 724 (3) (690 SE2d 858) (2010). But Muckle was charged in the indictment with voluntary manslaughter and aggravated assault for the stabbing of the victim, and the undisputed evidence at trial showed that the victim was stabbed one time in the chest, causing the victim’s death. It follows that Muckle’s conviction for aggravated assault merged as a matter of fact into her conviction for voluntary manslaughter. See, e.g., Williams v. State, 300 Ga. App. 305, 306 (2) (684 SE2d 430) (2009), rev’d on other grounds, 288 Ga. 7 (700 SE2d 564) (2010) (concluding that “the trial court properly held that the aggravated assault conviction merged with that for voluntary manslaughter”); Hayles v. State, 287 Ga. App. 601, 602 (651 SE2d 860) (2007) (noting that aggravated assault conviction merged into voluntary manslaughter conviction). Therefore, we vacate the conviction and sentence for aggravated assault and remand the case for resentencing with direction to merge the aggravated assault count into the voluntary manslaughter count. See Mikell, 286 Ga. at 725 (3); Herrera v. State, 306 Ga. App. 432, 434 (3) (702 SE2d 731) (2010).

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Blackwell and Dillard, JJ., concur.

       A defendant is guilty of voluntary manslaughter if “he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a).

       A defendant is guilty of an assault if she “Lalttempts to commit a violent injury to the person of another” or “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). If the assault is committed “Iwjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury,” the defendant is guilty of aggravated assault. OCGA § 16-5-21 (a) (2).

       Although Muckle did not raise the merger issue in the court below or on appeal, the issue is not waived. See Mikell v. State, 286 Ga. 722, 725 (3) (690 SE2d 858) (2010).


author: Mikell, Judge.

text:
    A10A1563.
    ALSTON & BIRD LLP et al. v. MELLON VENTURES II, L.P. et al.
    (706 SE2d 652)
   Mikell, Judge.

Alston & Bird LLP and two of its attorneys, W Thomas Carter III, and Randolph A. Moore III, defendants below, appeal from the trial court’s grant of partial summary judgment to their former clients, Mellon Ventures II, L.E; Noro-Moseley Partners IY L.E; Noro-Moseley Partners IV-B, L.E; SBK Capital, LLC; and GE Capital Equity Investments, Inc. (collectively the “appellees” or “investors”), in a lawsuit asserting severed claims arising out of a soured financial transaction, including legal malpractice. Appellants also appeal from denial of their motion for partial summary judgment and from several procedural and evidentiary rulings. Finding error, we affirm in part and reverse in part.

Summary judgment is appropriate if the pleadings and evidence “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). On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.

So viewed, the evidence shows that, in 1999, Joan Lyman and Michael Pearson founded SecureWorks, a small computer software company (“SecureWorks” or “the company”). Lyman and Pearson later hired Jardon Bouska to join the company; these three are referred to herein collectively as the “managers.” In 2000, the company sought additional capital; and in October 2000, Secure-Works agreed to a tentative deal whereby the investors would invest $20 million in the company. In return for the infusion of money, the managers would cede control of the company to the investors by issuing them “Class C Preferred Stock,” which allowed the investors to outvote the common stock owned by the managers. After reaching this tentative agreement with the managers, Mellon, the lead investor, hired appellants Carter and Moore to draft the final documents. Although only Mellon hired the attorneys and gave them their instructions, it was the custom in the venture capital world that the attorney retained by the leading investor would also represent other investors who might be invited by the leading investor to participate in the deal. Mellon brought GE Capital into the deal as an additional investor. As the transaction progressed, GE and other investors demanded additional terms, including a provision that would increase the number of the investors’ preferred shares if the company missed revenue targets, changes to the managers’ employment agreements, and a lock-up provision that would prevent the managers from selling their shares except in an initial public offering, even if the investors fired them from the company. As a result, a day or so before the closing, Lyman and the other managers requested that the contract be changed to provide them additional protection in the event that the investors later decided to sell out and to transfer their preferred stock to new investors with whom the managers might not feel comfortable. Mellon, on behalf of all the investors, agreed and asked appellants to revise the draft contract to make certain concessions in this regard to the managers. The result was Section 2.3 (b) of the Shareholders’ Right of First Refusal and Co-Sale Agreement (the “Shareholders Agreement”), executed October 30, 2000, a section referred to as the “tag-along” clause.

Unfortunately, the tag-along clause conflicts with a provision of the corporate charter, the so-called “waterfall” clause. It is undisputed that, late in the process, someone with Alston & Bird “cut and pasted” the tag-along clause from an older contract for prior financing of the company. The transferred paragraph was not appropriate for the economics of the new financing. No one caught the mistake until after the closing.

A few years after the closing, the investors became convinced that the unilateral drafting error in the closing documents of the Class C Preferred Stock refinancing impaired the value of their investment and made it difficult to sell their interest in the company. Attempts to negotiate a settlement with the managers failed, and the investors, represented by new counsel, filed suit against the managers, seeking to reform the Shareholders’ Agreement to reflect the original intent of the investors. In settlement of that lawsuit, the investors paid approximately $5.4 million to the managers. In return, the managers agreed to a redrafted tag-along clause. The investors then sued Alston & Bird, Carter, and Moore, alleging legal malpractice in the preparation of the documents relating to the Series C Preferred Stock refinancing, especially the Shareholders Agreement.

The trial court initially appointed a special master to make reports and recommendations on discovery disputes. Later, the mandate of the special master was expanded, over appellants’ objection, to include issues of law and fact. Appellants filed the present appeal following the trial court’s grant of partial summary judgment and its adoption of the special master’s report and recommendation. The trial court’s judgment invalidated many of appellants’ affirmative defenses. Almost all of the previous approvals of reports and recommendations, including those on discovery issues, have been appealed or cross-appealed.

1. We have a duty to inquire into our jurisdiction to entertain an appeal, even if no motion to dismiss has been filed. Although a grant of partial summary judgment may be directly appealable under OCGA § 9-11-56 (h), “this statute does not provide for direct appeals from all grants of summary judgment, but must be read in conjunction with OCGA §§ 5-6-34 and 5-6-35 regarding the procedure for appeal to this court.”

Under OCGA § 9-7-1, the duties previously performed by a “master” in the superior court are now performed by an “auditor,” although Uniform Superior Court Rule (“USCR”) 46, which was adopted effective June 4, 2009, permits the trial court to appoint a special master to perform certain duties enumerated therein. OCGA § 5-6-35 (a) (1) requires that appeals from judgments of superior courts reviewing decisions of auditors be brought by application. We conclude, however, that OCGA § 5-6-35 (a) (1) does not apply in this case because the statute specifically refers to decisions of “auditors” and not to those of “special masters.” Therefore, we have jurisdiction to hear this appeal.

2. Appellants first contend that the trial court erred in denying their motion for summary judgment because appellees cannot prove proximate cause as a matter of law. We disagree.

To prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that but for the attorney’s error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. The defendant attorney is entitled to summary judgment if he shows that there is an absence of proof adduced by the client on the issue of proximate cause.

In its June 12, 2009, order, the trial court concluded that appellants’ motion for summary judgment should be denied because their arguments hinged primarily upon the depositions and affidavit of Joan Lyman, one of the managers, whose credibility is vigorously disputed. We find no error.

“[T]his Court has specifically held that a non-moving party may withstand a motion for summary judgment by submitting sworn testimony averring personal knowledge of the existence of a prior inconsistent statement made by a witness upon whose sworn testimony the movant relies.” Moreover, a witness’s intent, expectation, or credibility are uniquely among those issues of material fact which are not appropriate for summary judgment. Therefore, the trial court did not err in denying appellants’ motion for summary judgment on the issue of proximate cause.

3. Appellants’ second enumeration is that the trial court erred in granting appellees’ motion for summary judgment on appellants’ affirmative defenses of comparative negligence, failure to mitigate damages, waiver, estoppel, and voluntary payment.

(a) The trial court granted partial summary judgment to appel-lees on appellants’ affirmative defense of comparative negligence as to the Noro-Moseley and SBK investors because there was no evidence that these investors had seen the tag-along clause prior to the closing of the transaction.

As to the Noro-Moseley investors, however, the record reflects that appellants presented to the special master and to the trial court in a timely manner evidence which indicated that the Noro-Moseley investors had read the tag-along clause and that their attorney had reviewed the clause prior to the closing of the transaction. In light of this evidence, we conclude that the trial court erred in granting appellees’ motion for partial summary judgment on appellants’ affirmative defense of comparative negligence as to the Noro-Moseley investors, and we reverse the trial court’s ruling as to this issue.

With regard to the SBK investors, however, appellants cited evidence in support of their arguments below and in this Court that was not properly filed with the trial court prior to the hearing on the motion for partial summary judgment. That evidence was not considered by the trial court and will not be considered here. A trial court does not abuse its discretion by declining to consider evidence filed with the court by the party opposing summary judgment on the day of or after the hearing.

We find no error in the trial court’s grant of partial summary judgment to the SBK investors on this defense. We also find no error in the trial court’s denial of appellees’ motion for partial summary judgment on this defense regarding the remaining investors, nor in the trial court’s failure to rely upon an additional ground urged by appellees in granting partial summary judgment to the SBK investors.

(b) Regarding appellants’ affirmative defense of mitigation of damages, we agree with the trial court, which approved the special master’s findings on this issue, that appellees were entitled to summary judgment because appellants failed to present any evidence that the investors did not mitigate their damages as far as practicable by the use of ordinary care and diligence; failed to present evidence of the amount by which damages could have been mitigated; failed to present evidence that reasonable mitigatory options existed in fact and not merely in theory; and failed to present evidence that appellees could have avoided or lessened their damages without undue risk, burden, or humiliation.

(c) Appellants have not made any argument here regarding their affirmative defenses of estoppel, waiver, and voluntary payment, and we consider these issues abandoned.

4. In their third enumeration, appellants argue that the trial court erred in ordering them to return documents inadvertently produced by appellees during discovery. “Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent a clear abuse of discretion, a court’s exercise of that broad discretion will not be reversed.”

It is undisputed that, during discovery, two e-mails containing communications from appellees’ attorney in the managers’ litigation concerning the issue of damages were produced to appellants. In its order of June 23, 2009, the trial court ordered appellants to return these communications to appellees for redaction and then reproduction to appellants and also prohibited appellants from using the privileged information contained in the e-mails at trial or for any other purpose.

We note that the only authority cited by appellants on this issue is a case from federal bankruptcy court which is merely persuasive and not binding upon this Court. We rely instead on Georgia authority. “Under the common law of Georgia, as codified in OCGA §§ 24-9-21 (2), 24-9-24, and 24-9-25, the attorney-client privilege bars revelation, discovery, and testimony of a lawyer except when waived by the client or in very limited circumstances.”

Appellants produced no evidence showing that appellees waived their attorney-client privilege. The disclosure of these e-mails during document production by counsel did not preclude later objection to their use by appellees. Therefore, the trial court did not abuse its discretion in ordering these documents returned to appellees.

5. In their fourth and fifth enumerations of error, appellants complain of the trial court’s disallowance of certain opinions of two of their expert witnesses.

“In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the [witness’s] qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” In this regard, the trial court is vested with discretion. “The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” We have examined the proffered opinions of expert witnesses Bramlett and Thrasher and find that the trial court properly excluded them for the reasons set out in detail in the special master’s report and recommendation and adopted by the trial court.

6. In their final enumeration of error, appellants argue that the trial court erred in appointing a private attorney as special master, over their objections, to issue opinions on substantive and eviden-tiary issues. We disagree.

By order of October 25, 2006, the trial court appointed the special master for discovery in this case. Appellants made no objections at that time to his appointment. Following extensive discovery overseen by the special master and the filing by the parties of motions for summary judgment, partial summary judgment, and motions seeking to disqualify certain expert witnesses and exclude certain expert opinions, the trial court referred these additional matters to the special master by an order entered on February 1, 2008 (the “February 1 referral”). The February 1 referral directed the special master to “review and consider the motions, conduct such proceedings with respect to the motions as he may deem appropriate, and submit a written recommendation and report to the Court as to the disposition of the motions.” Further, the February 1 referral provided that the parties would have the opportunity to file exceptions or objections to the special master’s recommendations and report. Appellants then filed their motion to withdraw the February 1 referral of these additional matters to the special master. The trial court denied appellants’ motion in its order of March 7, 2008.

(a) Appellants contend that, absent a specific statutory provision authorizing the referral of the summary judgment and evidentiary issues to a special master, the trial court abused its discretion in doing so. We disagree.

At the outset, we note that a judge’s exercise of discretion in referring a matter to an auditor, and, by extension, a special master, will not be interfered with, absent abuse. In addition, USCR 46, entitled “Special Masters,” provides:

Unless a statute provides otherwise, upon the motion of any party or upon the court’s own motion, the court of record may appoint a [special] master-, (a) to perform duties consented to by the parties; (b) to address pretrial and post-trial matters that the court cannot efficiently, effectively or promptly address-, (c) to provide guidance, advice and information to the court on complex or specialized subjects, including, but not limited to, technology issues related to the discovery process; (d) to monitor implementation of and compliance with orders of the court or, in appropriate cases, monitoring implementation of settlement agreements; (e) to investigate and report to the court on matters identified by the court-, (f) to conduct an accounting as instructed by the court and to report upon the results of the same; (g) upon a showing of good cause, to attend and supervise depositions conducted outside of the jurisdiction; and (h) to hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by (i) some exceptional condition, or (ii) the need to perform an accounting, to resolve a difficult computation of damages or if the matter involves issues for which a special substantive competence would be beneficial.

Appellants point out that USCR 46 was adopted effective June 4, 2009, after the trial court entered the orders complained of in this enumeration of error. But the same circumstances existed in E. I. DuPont, and in that case, the Supreme Court of Georgia recognized the validity of USCR 46 without any specific legislative authorization. The adoption of USCR 46, as approved by our Supreme Court, without any legislative authority affirms the existence of the inherent judicial power of Georgia’s courts, or at least the inherent power of her courts of record, to refer the matters complained of herein to a special master. We caution the bench and bar, however, that there are limits to the power of a trial court to turn over allegedly complex litigation to special masters or auditors. Doing so too frequently infringes on the constitutional authority of the General Assembly and the Governor, advised by the Judicial Council, to decide how many judicial circuits Georgia should have and how many judges should staff those circuits. In the present litigation, the trial court may have already reached the limit of the proper use of a special master.

(b) Appellants’ remaining arguments on this issue were not presented below and will not be considered for the first time on appeal.

Our appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. Although under the “right for any reason” rule this court will affirm the correct ruling of a trial court on grounds not addressed below, we do not apply a “wrong for any reason” rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.

For the above-stated reasons, we affirm the trial court’s denial of appellants’ motion to withdraw the February 1 referral to the special master.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Adams, J., concur.

Decided December 16, 2010

Reconsideration denied January 27, 2011

Cook, Noell, Tolley & Bates, Edward D. Tolley, Sutherland, Thomas W. Curvin, Amy K. Averill, for appellants.

Schklar, Ney & Heim, Edwin J. Schklar, William B. Ney, Magdalena M. Heim, J. James Johnson, Michael R. Peacock, for appellees.

       (Citations and punctuation omitted.) Ins. Co. &c. of Pa. v. APAC-Southeast, 297 Ga. App. 553 (677 SE2d 734) (2009).

       Mellon initially retained partner Carter and then requested that Moore, then an associate and now a partner, also work on the transaction.

        Lane v. Morrison, 226 Ga. 626 (175 SE2d 830) (1970); Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006).

       (Citation omitted; emphasis in original.) Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003).

       See, e.g., E. I. DuPont de Nemours & Co. v. Waters, 287 Ga. 235, 236-238 (695 SE2d 265) (2010).

       See OCGA § 5-6-35 (b); McCaughey v. Murphy, 267 Ga. 64, 65 (1) (473 SE2d 762) (1996); Carmichael v. Carmichael, 248 Ga. 216, 218 (1), 221 (7) (282 SE2d 71) (1981); cf. Sorrentino v. Boston Mut. Life Ins. Co., 206 Ga. App. 771, 772 (1) (426 SE2d 594) (1992) (direct appeal lies where auditor’s report was confined to findings of fact). See also OCGA §§ 5-6-34 (b), 5-6-35 (a) (1), 9-7-1 et seq., 9-7-8, 9-7-13.

       See Barnaby v. Scott, 299 Ga. App. 691, 692 (1) (683 SE2d 333) (2009) (direct appeal from order adopting findings of special master).

       (Footnote omitted.) Millsaps v. Kaufold, 288 Ga. App. 44, 44-45 (653 SE2d 344) (2007). For a discussion concerning the distinction between proximate cause and cause-in-fact, see C. Mikell, Jury Instructions and Proximate Cause: An Uncertain Trumpet in Georgia, 27 Ga. St. Bar J. 60 (1990).

       (Citation, punctuation and footnote omitted.) Carroll v. The Krystal Co., 303 Ga. App. 292, 295 (692 SE2d 869) (2010). The affidavits in opposition to Lyman’s testimony mostly allege that she could not possibly have had personal knowledge of the matters to which she testified. But there does not seem to be the critical element required by the Krystal decision, i.e., knowledge of a prior inconsistent statement by Lyman.

       OCGA § 9-11-56 (c); see State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988).

       See First Bancorp Mtg. Corp. v. Giddens, 251 Ga. App. 676, 680 (5) (555 SE2d 53) (2001) (affirmative defense of comparative negligence when supported by evidence may be raised in legal malpractice case).

        Brown v. Williams, 259 Ga. 6, 7 (4) (375 SE2d 835) (1989); Devore & Johnson, Inc. v. Bowen & Watson, Inc., 216 Ga. App. 63, 65 (3) (453 SE2d 67) (1994).

       See Young u. Williams, 285 Ga. App. 208, 209 (1) (645 SE2d 624) (2007); Berman v. Rubin, 138 Ga. App. 849, 851-854 (227 SE2d 802) (1976).

        Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 483 (3) (445 SE2d 297) (1994); Burton v. Key Capital Corp., 185 Ga. App. 394, 395 (364 SE2d 296) (1987).

       Court of Appeals Rule 25 (c) (2).

       (Citation and punctuation omitted.) Expedia, Inc. v. City of Columbus, 305 Ga. App. 450, 451 (699 SE2d 600) (2010).

        McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48, n. 1 (549 SE2d 104) (2001).

       (Citation and punctuation omitted; emphasis supplied.) NationsBank v. SouthTrust Bank of Ga., 226 Ga. App. 888, 896 (2) (487 SE2d 701) (1997) (physical precedent only). See generally Southern Guaranty Ins. Co. of Ga. u. Ash, 192 Ga. App. 24, 25-27 (383 SE2d 579) (1989).

        Associated Grocers Co-Op v. Trust Co. of Columbus, 158 Ga. App. 115, 116-117 (3) (279 SE2d 248) (1981); see also Kennestone Hosp. v. Hopson, 273 Ga. 145, 148-149 (538 SE2d 742) (2000) (failure to object to discovery request from third party did not impliedly waive psychiatrist-patient privilege).

       (Citation omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010).

       (Citation and punctuation omitted.) Anderson v. Mountain Mgmt. Svcs., 306 Ga. App. 412, 413 (702 SE2d 462) (2010).

       (Emphasis supplied.)

        Steenhuis v. Todd’s Constr. Co., 227 Ga. 836, 837 (2) (183 SE2d 364) (1971); Teasley v. Bradley, 120 Ga. 373, 374 (47 SE 925) (1904); Martin v. Foley, 82 Ga. 552, 555 (9 SE 532) (1889).

       (Emphasis supplied.) USCR 46 (A) (1).

       Supra.

       Id. See also Ins. Co. &c. of Pa., supra at 556 (special master made proposed findings of fact and conclusions of law on motion for summary judgment, which were adopted by the trial court).

       That the courts possess certain inherent powers, is a proposition which, so far as we know, has never been questioned. This means, then, when the constitution declares that the legislative, judicial, and executive powers shall forever remain separate and distinct, it thereby invests those officials charged with the duty of administering justice according to law with all necessary authority to efficiently and completely discharge those duties the performance of which is by the constitution committed to the judiciary, and to maintain the dignity and independence of the courts.
      (Citations omitted.) Lovett v. Sandersville R. Co., 199 Ga. 238, 239 (33 SE2d 905) (1945).

       (Citations and punctuation omitted.) Lowery v. Atlanta Heart Assocs., 266 Ga. App. 402, 404-405 (2) (597 SE2d 494) (2004).


author: Doyle, Judge.

text:
    A09A0392.
    FLOYD v. AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY.
    (705 SE2d 894)
    Decided January 27, 2011.

      F. Glenn Moffett, Jr., for appellant.

      Harper, Waldon & Craig, Trevor G. Hiestand, for appellee.
   Doyle, Judge.

The Supreme Court granted certiorari in this case and, in American Inti. South Ins. Co. v. Floyd, reversed the judgment of this Court. Therefore, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       288 Ga. 322 (704 SE2d 755) (2010).

        Floyd v. American Intl. South Ins. Co., 298 Ga. App. 771 (681 SE2d 216) (2009).


author: Blackwell, Judge. BARNES, Presiding Judge,

text:
    A10A1716.
    B-T TWO, INC. v. BENNETT.
    (706 SE2d 87)
   Blackwell, Judge.

Hunter Bennett sued B-T Two, Inc., which does business as Buffalo’s Café, to recover damages for injuries that he sustained at the hands of a Buffalo’s employee and another unidentified person, who together assaulted Bennett at a party. Bennett contends that Buffalo’s is liable under the doctrine of respondeat superior for the tort of its employee, and Bennett also claims that Buffalo’s is liable for its own negligence in sponsoring a party at which unlimited alcohol was served and inadequate security was provided. After the trial court denied Buffalo’s motion for summary judgment, Buffalo’s sought immediate review in this Court, which we allowed. Because we conclude that Buffalo’s is entitled to summary judgment on each of the claims that Bennett asserts against it, we reverse the judgment below.

Summary judgment is warranted when the pleadings and record evidence establish that the material facts are undisputed and these facts entitle the moving party to judgment as a matter of law. See OCGA § 9-11-56 (c); see also Marcum v. Gardner, 283 Ga. App. 453, 454 (641 SE2d 678) (2007); Smith v. Atlantic Mut. Cos., 283 Ga. App. 349, 350 (641 SE2d 586) (2007). We review the denial of a motion for summary judgment de novo. And on appeal, we assess the record evidence in the same way as the trial court, viewing it in the light most favorable to the nonmoving party. See McCaskill u. Carillo, 263 Ga. App. 890 (589 SE2d 582) (2003).

So viewed, the evidence shows that, on the evening of September 30, 2006, several individuals hosted a party at a private residence in Laurens County. The hosts intended to raise money at the party for a Buffalo’s manager, who was moving away to attend to the medical needs of his sick child. Several Buffalo’s employees attended the party, and some of these employees wore Buffalo’s uniforms. Flyers advertising the party were posted at a Buffalo’s restaurant in Laurens County, which read:

PARTY!!!! HELP BUFFALO’S SAY FAREWELL TO THE BEST DAMN MANAGER EVER, ASK ANYONE FOR DIRECTIONS. $5.00 COVER ONLY ALL NIGHT!!!!

There is no evidence that Buffalo’s owned or leased the residence at which the party was held, paid for any expenses of the party, provided food or alcohol for the party, received any revenues collected at the party, or placed any Buffalo’s signs or other promotional materials at the location of the party.

Bennett learned of the party from his cousin, and they attended the party together. When they arrived, they saw a young woman wearing a Buffalo’s shirt and selling wristbands, the purchase of which entitled the buyer to unlimited beer. Instead of buying a wristband, however, Bennett obtained one from another partygoer, who was leaving the party at the time Bennett and his cousin arrived.

After he arrived at the party, Bennett began playing billiards, but he later walked to a bar inside the residence and asked the bartender for a beer. The bartender — the wife of Justin King, a Buffalo’s employee — refused to serve Bennett, falsely claiming that there was no more beer. Bennett demanded a beer or a refund of the cost of a wristband, and after another person intervened, the bartender relented and gave Bennett a beer.

Bennett then returned to his billiards game but found a man, with whom he was unacquainted, sitting on the edge of the billiards table. When Bennett asked the man to move, the man became angry and started toward Bennett. To avert a confrontation, Bennett explained that he did not mean to offend and only wanted to play billiards, and the man walked away. As Bennett resumed his billiards play, Bennett’s cousin walked to the bar to get a beer. When his cousin returned, he warned Bennett that the bartender had said that, if Bennett were looking for a fight, he would get one. Not believing that he was in danger, Bennett continued to play billiards.

About 30 minutes later, the unknown man whom Bennett previously had found sitting on the billiards table returned and apologized for the earlier confrontation. Bennett did not notice that, as the unknown man approached and spoke with him, Justin King also was approaching him from the other side. Without warning, King struck Bennett in the head with such force that Bennett fell to the floor. While Bennett was down, King and the unknown man began hitting and kicking him. Bennett’s cousin and other party-goers intervened to stop the assault, and Bennett was taken to the hospital, having sustained serious injuries.

In September 2008, Bennett filed this lawsuit, asserting claims against Buffalo’s under two distinct legal theories. First, Bennett contends that Buffalo’s is liable for the tort of King, its employee, under the doctrine of respondeat superior. Second, Bennett claims that Buffalo’s is liable for its own negligence, which consists of, according to Bennett, sponsoring a party at which unlimited alcohol was served to partygoers and inadequate security was provided. Based on these claims, Bennett seeks compensatory and punitive damages.

After discovery, Buffalo’s moved for summary judgment on each claim that Bennett asserts against it. In support of its motion, Buffalo’s offered an affidavit, in which a representative of the company stated that Buffalo’s did not own or lease the residence at which the party was held and did not supply any food or alcohol for the party. After a hearing, the trial court denied the motion, finding that genuine issues of material fact precluded summary judgment. Buffalo’s then asked for immediate review in this Court, which we allowed, and this appeal followed.

1. Buffalo’s contends that it is not liable to Bennett under the doctrine of respondeat superior because the assault upon Bennett by a Buffalo’s employee was neither within the scope of his employment nor in furtherance of Buffalo’s business. We agree and reverse the denial of summary judgment on the respondeat superior claim.

Under the doctrine of respondeat superior, a master is liable for the tort of its servant only to the extent that the servant committed the tort in connection with his employment by the master, within the scope of his employment, and in furtherance of his master’s business. See Piedmont Hosp. v. Palladino, 276 Ga. 612, 613-614 (580 SE2d 215) (2003); see also Dowdell v. Krystal Co., 291 Ga. App. 469, 470 (1) (662 SE2d 150) (2008). As we have said before, “the general rule for determining whether the master is liable for the acts of an employee is ‘not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.’ ” Brownlee v. Winn-Dixie Atlanta, 240 Ga. App. 368, 369 (1) (523 SE2d 596) (1999). Although a jury often must resolve whether a servant, at the time he committed a tort, was acting within the scope of his employment and in furtherance of his master’s business, the evidence in some cases is so plain and undisputable that the court properly may decide a respondeat superior claim as a matter of law. See Leo v. Waffle House, 298 Ga. App. 838, 842 (3) (681 SE2d 258) (2009); see also Drury v. Harris Ventures, 302 Ga. App. 545, 546 (1) (691 SE2d 356) (2010) (“Summary judgment for the master is appropriate where the evidence shows that the servant was not engaged in furtherance of his master’s business but was on a private enterprise of his own.”).

Even assuming that Buffalo’s sponsored the party and that King attended the party in connection with his employment by Buffalo’s, there is no evidence in the record that the assault upon Bennett was within the scope of his employment or in furtherance of Buffalo’s business. There is nothing in the record, for instance, from which a jury properly might infer that assaulting a partygoer without provocation was even arguably among the responsibilities that King owed his employer or that the assault upon Bennett had, or was intended to have, any business purpose whatsoever. Whatever King’s reasons for assaulting Bennett, there is no evidence from which a jury might conclude that the assault had anything to do with Buffalo’s business. In cases presenting similar facts and involving similar claims, we have held that claims under the doctrine of respondeat superior failed as a matter of law, even when the assault occurred at a place and time more directly related to the work for which the master employed the servant. See, e.g., Drury, supra, 302 Ga. App. at 547 (1) (sexual assault upon customer by yard-maintenance laborer); Dowdell, supra, 291 Ga. App. at 470-471 (1) (assault upon customer by fast-food restaurant cashier after customer insulted cashier); Worstell Parking u. Aisida, 212 Ga. App. 605, 606 (1) (442 SE2d 469) (1994) (assault upon customer by parking lot attendant after customer failed to tip attendant). Consistent with these precedents, we conclude that Buffalo’s is entitled to summary judgment on the respondeat superior claim in this case.

2. Buffalo’s also contends that it is entitled to summary judgment on the negligence claim. Bennett has advanced two distinct theories of negligence, and we turn first to his contention that Buffalo’s was negligent because it sponsored a party at which unlimited alcohol was served and that the service of alcohol to partygoers was a proximate cause of his injuries. As Buffalo’s correctly observes, this theory of negligence is squarely foreclosed by OCGA § 51-1-40, which provides that, except in limited circumstances not presented in this case, “the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury . . . inflicted by an intoxicated person upon himself or upon another person.” OCGA § 51-1-40 (a). As we have explained, “this statute insulates providers of alcohol from third-party claims of negligence” except in the limited circumstances not presented here. Solley u. Mullins Trucking Co., 301 Ga. App. 565, 567 (687 SE2d 924) (2009) (punctuation omitted); see also Kappa Sigma Inti. Fraternity v. Tootle, 221 Ga. App. 890, 893 (2) (473 SE2d 213) (1996). To the extent that Bennett’s assailants were intoxicated at the time of the assault and that their intoxication contributed to the assault, it was their consumption of alcohol, not the service of alcohol to them, that may have been the proximate cause of Bennett’s injuries. For this reason, a negligence claim against Buffalo’s premised on the service of alcohol at the party fails as a matter of law.

3. We turn now to Bennett’s second theory of negligence, that Buffalo’s was negligent for sponsoring a party without furnishing adequate security. Buffalo’s contends that this theory of negligence fails because Bennett has come forward with no evidence showing that Buffalo’s had any knowledge, much less superior knowledge, of the danger that Bennett might be assaulted at the party. See OCGA § 9-11-56 (e) (“When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations ... of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial.”). We agree that such evidence is absent from the record and is fatal to Bennett’s second theory of negligence. For this reason, as well as the reasons set forth in Division 2, supra, we reverse the denial of summary judgment for Buffalo’s on the negligence claim.

To prove a claim of negligence, of course, a plaintiff must prove that “the defendant did something that it should not have done or failed to do something that it should have done pursuant to the duty owed the plaintiff.” Parker v. Hovers, 255 Ga. App. 184, 186 (1) (564 SE2d 795) (2002). Pursuant to OCGA § 51-3-1, an owner or occupier of land owes a duty of ordinary care to keep the premises safe for persons whom he invites or induces to come upon the land. But as our Supreme Court and this Court have cautioned time and again, this standard of ordinary care does not mean that an owner or occupier of land is an insurer of the safety of his invitee. See, e.g., Days Inns of America v. Matt, 265 Ga. 235, 235 (454 SE2d 507) (1995); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); Ferguson v. Premier Homes, 303 Ga. App. 614, 616 (695 SE2d 56) (2010); Glynn-Brunswick Mem. Hosp. Auth. v. Benton, 303 Ga. App. 305, 307 (693 SE2d 566) (2010); Vega v. La Movida, Inc., 294 Ga. App. 311, 312 (1) (a) (670 SE2d 116) (2008).

In prior cases, this Court and our Supreme Court have been required to decide whether this duty of ordinary care required an owner or occupier of land to keep an invitee safe from the criminal act of a third party, and we have recognized two principles that guide our consideration of the question and limit the circumstances in which the law imposes liability for the failure to protect against such a criminal act. See, e.g., Norby v. Heritage Bank, 284 Ga. App. 360 (644 SE2d 185) (2007), and the cases cited therein; Cook v. Micro Craft, 262 Ga. App. 434, 438 (1) (585 SE2d 628) (2003); Sailors v. Esmail Inti, 217 Ga. App. 811, 812 (1) (459 SE2d 465) (1995). The first of these principles is that an owner or occupier must protect an invitee against the criminal act of a third party only to the extent that the criminal act is reasonably foreseeable. See Vega, supra, 294 Ga. App. at 312 (1) (a). The second principle is that, even when a criminal act is reasonably foreseeable, an owner or occupier is not liable for injuries resulting from the criminal act of a third party unless he had superior knowledge of the danger. Whitmore v. First Fed. Sav. Bank, 225 Ga. App. 768, 770 (2) (484 SE2d 708) (1997).

Applying these principles to this case, to support his second theory of negligence, Bennett must come forward with evidence from which a jury could conclude that Buffalo’s had knowledge of circumstances that would lead a reasonable person to anticipate a criminal assault at the party and that Buffalo’s had more knowledge of the possibility of such an assault than Bennett had. Even viewing the record evidence in the light most favorable to Bennett, as we must, it is apparent that Bennett has not carried this burden. See Lau’s Corp., supra, 261 Ga. at 491.

A variety of circumstances might lead a reasonable person to anticipate a criminal act at a particular location or event. For instance, a history of similar criminal acts at or near the same location or event might be enough. See, e.g., Wade v. Findlay Mgmt., 253 Ga. App. 688, 690 (560 SE2d 283) (2002). Knowledge that a specific third party will be present at the location or event, accompanied by knowledge that the same third party has a history of violence, might also be enough. See, e.g., Mason v. Chateau Communities, 280 Ga. App. 106, 113 (633 SE2d 426) (2006). But there is no such evidence in the record here. There is, for instance, no evidence that Buffalo’s had any knowledge that would have indicated King or any other partygoer had a propensity for violence, and there is no evidence that Buffalo’s had knowledge that violence had broken out at any similar party or gathering in the area. Because Bennett has the burden of coming forward with some evidence showing that Buffalo’s knew of some circumstances that would have led a reasonable person to anticipate the assault, the absence of such evidence in the record is fatal to his claim.

Even if we were to assume it to be “common knowledge” that, when alcohol is served, some people may become intoxicated and that, when people become intoxicated, some of them may become violent, it would not save Bennett’s claim. In this case, even if Buffalo’s knew that alcohol would be served at the party and could have anticipated that someone at the party could commit a criminal act of violence, we would attribute such common knowledge not just to Buffalo’s, but to Bennett as well. And because Buffalo’s would owe a duty only if its knowledge of the danger were superior to Bennett’s, attributing such common knowledge to both Buffalo’s and Bennett would not change the result in this case. See Norby, supra, 284 Ga. App. at 366-367; Whitmore, supra, 225 Ga. App. at 770-771 (2); Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 680 (2) (629 SE2d 561) (2006).

Even if we thought the record could support Bennett’s assertion that Buffalo’s could have reasonably foreseen the criminal assault against Bennett, he has failed to come forward with any evidence from which a jury could conclude that Buffalo’s had superior knowledge of the risk of criminal wrongdoing. Because such a showing is an essential element of Bennett’s claim that Buffalo’s was negligent in failing to furnish security for the party, and because Bennett’s other theory of negligence is fatally flawed for the reasons discussed in Division 2, supra, we reverse the denial of summary judgment for Buffalo’s on the negligence claim.

4. Bennett sought punitive, as well as compensatory, damages from Buffalo’s. “In accordance with OCGA § 51-12-5.1, punitive damages can only be awarded as additional damages.” Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 580 (5) (571 SE2d 557) (2002). Here, because Bennett has failed to demonstrate that he has any viable claim against Buffalo’s, the trial court also should have awarded summary judgment to Buffalo’s on the demand for punitive damages. See Dowdell, supra, 291 Ga. App. at 473 (4).

Judgment reversed.

Dillard, J., concurs. Barnes, P. J., concurs specially.

BARNES, Presiding Judge,

concurring specially.

While I agree with the results in this case, I do not agree with all that is said, and thus concur specially.

Bennett contends that Buffalo’s is responsible for his injuries under theories of respondeat superior and negligence. The record contains only circumstantial evidence that Buffalo’s sponsored or participated in giving the party. The flyer said the party was to “help Buffalo’s say farewell” to one of its managers, and some of the party attendees wore restaurant work shirts. One witness testified that he had seen flyers for the party at the restaurant a week beforehand, but did not recall whether they were posted on a wall, being handed out, or stacked on a table. He did not recall the specifics of the flyer and attended the party because a girl he knew invited him. All of the other witnesses, including Bennett and his mother, who investigated the issue after the fight, had only second- or third-hand knowledge of Buffalo’s possible involvement. In fact, in his response to Buffalo’s motion for summary judgment, Bennett cited to his complaint as support for the proposition that his attacker was a Buffalo’s manager, and cited to the indictment against the attacker for the proposition that the company sponsored the party.

In contrast, a stockholder of the company that owns Buffalo’s submitted an affidavit stating that Buffalo’s did not sponsor the party and did not buy food or beverages for the party. He also averred that no one used Buffalo’s beer or liquor licenses to buy alcohol for the party, and that none of the Buffalo’s employees who attended the party was working for the restaurant at the time.

[A] finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, provided that the circumstantial evidence may be construed consistently with the direct evidence. Summary judgment is improper only when circumstantial evidence is inconsistent with the direct evidence; in such a case a jury question is created.

(Citations omitted.) Copeland v. Houston County Hosp. Auth., 215 Ga. App. 207, 208 (450 SE2d 235) (1994).

The circumstantial evidence of the flyer itself and its presence at the restaurant is not inconsistent with the direct evidence that Buffalo’s did not sponsor the party. Accordingly, Buffalo’s was entitled to summary judgment on all of Bennett’s claims. Discussion of whether the assault was committed by an employee acting within the scope of his employment, whether sponsoring a party where unlimited alcohol was served without adequate security might lead to liability, whether the criminal assault on Bennett was foreseeable, and whether Bennett had “superior knowledge” of the impending assault is not necessary to resolve this appeal.

Decided January 27, 2011.

Craig N. Cowart, for appellant.

Lanford, Smith & Kapiloff, David L. Smith, for appellee.

For these reasons, I concur specially in the majority opinion.

       Bennett also named King as a defendant in this lawsuit, but King is not a party to this appeal, and we decide nothing about the claims against him.

       There is much discussion in the briefs about whether there is evidence in the record sufficient to establish that Buffalo’s actually sponsored the party. The special concurrence concludes that the record does not contain such evidence and that summary judgment therefore should have been granted to Buffalo’s on each of Bennett’s claims. But because we believe that this appeal is better resolved by separately considering the merits of each of Bennett’s claims, and because this appeal can be decided without resolving the “sponsorship” of the party, we assume for the sake of argument that Buffalo’s did sponsor the party.

       The statute makes an exception in some cases involving the service of alcoholic beverages to persons who thereafter operate motor vehicles while intoxicated. See OCGA § 51-1-40 (b); see also Hansen v. Etheridge, 232 Ga. App. 408, 409 (501 SE2d 517) (1998). Bennett was not injured as the result of anyone’s operation of a motor vehicle, and this exception, therefore, is not pertinent to this case.

       In light of our assumption that Buffalo’s sponsored the party, we also assume for the sake of argument that Buffalo’s is an “occupier” — as that term is used in OCGA § 51-3-1 — of the location at which the party occurred. For the same reason, we assume that Bennett was an invitee to the party, rather than a social guest or trespasser.

       Because King acted outside the scope of his employment with Buffalo’s when he assaulted Bennett, see Division 2, supra, we consider King as a third party for purposes of assessing whether Buffalo’s owed a duty to protect Bennett against the assault. See Dowdell, supra, 291 Ga. App. at 472 (2) (“Because Shumate acted outside the scope of his employment when he started the fight with Dowdell, he is considered a third party for the purposes of premises liability analysis.”). We likewise consider the unknown, additional assailant as a third party because nothing in the record suggests that he was affiliated in any way with Buffalo’s.

       Attributing equal, or superior, knowledge to Bennett is even more appropriate in this case, given that he was aware of his earlier confrontation with his unknown assailant and that the bartender had made threatening statements about him. There is no evidence that Buffalo’s knew about such things.

       Because I do not agree with all that is said, this opinion is physical precedent only. Court of Appeals Rule 33 (a).


author: MIKELL, Judge.

text:
    A10A2257.
    In the Interest of C. A. L., a child.
    (705 SE2d 885)
   MIKELL, Judge.

The legal father of C. A. L., a minor child, appeals from the juvenile court’s finding that the child was deprived and also awarding custody of the child to her mother. We affirm.

In determining whether a child is deprived, a juvenile court is governed by OCGA § 15-11-2 (8), which provides as follows:

“Deprived child” means a child who: (A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals; (B) Has been placed for care or adoption in violation of law; (C) Has been abandoned by his or her parents or other legal custodian; or (D) Is without a parent, guardian, or custodian.

Upon appellate review of an order finding deprivation, “we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. We neither weigh evidence nor determine the credibility of witnesses.”

The record reflects that the Lamar County Department of Family and Children Services (“DFACS”) had previously investigated incidents involving C. A. L. prior to the allegations involved in this case. Investigator Allison Nash testified that in July 2009, nine-year-old C. A. L. alleged that when she visited her father and stepmother, they harassed her about her private parts; that they continually asked her to show them her private parts to make sure she was clean; that her father was bathing her, which made her uncomfortable; and that her stepmother would demonstrate how to clean her vagina by showing her own to C. A. L. C. A. L. also disclosed to Nash that she had been forced to perform oral sex with two of her paternal cousins two years earlier. According to Nash, C. A. L.’s mother stopped C. A. L. from visiting her father for a couple of months. In September, however, when C. A. L. returned from a visit to her father’s house, she had blood in her underwear. C. A. L.’s mother called Nash, and she advised them to go the emergency room. When Nash interviewed C. A. L., she reported that her father had used two fingers to spread open her vagina. Appellant denied all of the allegations that C. A. L. made against him.

Dr. Linda Bolton, a psychologist who began treating C. A. L. when she was three years old, testified that on August 7, 2009, C. A. L. told her that two of her cousins, a male and a female, forced her to lick their private parts and licked hers. At the next visit on August 19, C. A. L. told Dr. Bolton that her father asked her to spread her legs and took a picture of her private parts when she was in the bathtub. During C. A. L.’s visit with Dr. Bolton on September 29, C. A. L. reported that her dad opened her vagina with his thumb and forefingers; that her stepmother did the same with her thumbs and index fingers on both hands; that her dad bathed her and applied lotion to her body; and that she again saw the two cousins who had forced her to lick their private parts. Dr. Bolton testified that C. A. L. then began to show signs of post-traumatic stress disorder, which Dr. Bolton suspected occurred because C. A. L. had begun to discuss these occurrences. Dr. Bolton also treated C. A. L.’s older sister, L., and testified that L. had told her that before C. A. L. was born, C. A. L.’s father wanted to shower with her and that L. told her mom after one of the showers that he had a monkey’s tail.

Dr. Asia Gifford, a clinical psychologist employed at the Medland Treatment Center, testified that she performed a psycho-sexual evaluation on C. A. L. at the request of the Lamar County DFACS. C. A. L. reported the same information about her father and stepmother as well as her cousins to Dr. Gifford. In addition, C. A. L. told Dr. Gifford that the bleeding in her underwear had come from cuts in her vagina, but she did not know what caused the cuts; that her father inspected her vagina each time he picked her up from her mother’s house to see if it was clean; that her older sister had touched her twice; and that she had heard her mother and stepfather as well as her father and stepmother having sex several times. Dr. Gifford also testified that C. A. L. told her that she sometimes thinks of suicide but that she would never really do it and that she had engaged in risky behavior, such as jumping off a ledge and slicing her finger with a knife to see what it felt like.

After conducting several tests on C. A. L., Dr. Gifford concluded that the child had post-traumatic stress disorder, attention deficit hyperactivity disorder, and that she had been sexually abused. Dr. Gifford recommended that C. A. L. undergo counseling with a therapist experienced in treating sexually abused children who could also treat C. A. L.’s other disorders; that C. A. L. have no unsupervised contact with her father and stepmother; that C. A. L. be supervised around other children due to the risk for acting out sexually; that C. A. L. and her older sister have separate rooms; that C. A. L. not be exposed to any pornography or sexually explicit materials or activity; and that C. A. L. see a psychiatrist to manage her medications.

The juvenile court concluded that C. A. L. was deprived in that she was without the proper parental care or control necessary to care for her physical, mental or emotional health or morals. The court listed the causes of deprivation as to the legal father as emotional abuse, sexual abuse, and neglect/lack of supervision. The court placed custody of C. A..L. with the mother and ordered, among other things, that the mother follow all of Dr. Gifford’s recommendations, instructed DFACS to keep the case open for six months for monitoring, and denied the father and stepmother access to C. A. L. until authorized by the therapist. The court’s order is set to expire on March 9, 2011, unless terminated sooner by the court.

In his sole enumeration of error on appeal, the father maintains that the deprivation finding must be reversed because there was no clear and convincing evidence of who was responsible for C. A. L.’s abuse. We note that he cites no authority in support of the proposition that this reason, alone, warrants the reversal of the trial court’s finding, and we have found none.

The definition of a deprived child “focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” The evidence shows that C. A. L. was inappropriately touched and suffered from sexual abuse, which contributed to her developing post-traumatic stress disorder. Accordingly, the trial court’s finding that there was clear and convincing evidence of deprivation is supported by the record. Additionally, “[i]t is well established that a juvenile court is authorized to find a lack of proper parental care or control based on a parent’s failure to protect his or her child from injury.” In the instant case, in addition to the evidence that the father and stepmother were touching C. A. L. inappropriately, there was evidence that C. A. L. was sexually abused by the father’s cousins and based on the father’s testimony, it does not appear that he believed C. A. L. or would protect her from these cousins in the future. Therefore, viewing the evidence in favor of the judgment, we affirm the finding of deprivation.

Decided January 27, 2011.

Joseph VC Jones, Jr., for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Hunnicutt & Taylor, Linda B. Taylor, for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       (Citation and punctuation omitted.) In the Interest of A. B., 285 Ga. App. 288 (645 SE2d 716) (2007).

       (Citation and punctuation omitted.) In the Interest ofV. A. D., 305 Ga. App. 23, 26 (699 SE2d 346) (2010).

       See In the Interest of A. E, 299 Ga. App. 886, 889 (684 SE2d 22) (2009) (deprivation finding affirmed where mother did not appreciate danger of stepfather acknowledging that his erect penis may have touched daughter’s vaginal area); In the Interest ofN. D., 286 Ga. App. 236 (648 SE2d 771) (2007) (finding of deprivation based on allegations of sexual abuse).

       (Citation and punctuation omitted.) In the Interest ofK. L., 300 Ga. App. 557, 559 (685 SE2d 464) (2009).


text:
    A10A2330.
    MOORE v. REO PROPERTIES ACCREDITED HOME LENDERS, INC.
    (705 SE2d 887)
   Adams, Judge.

Angela Moore appeals the trial court’s grant of a writ of possession in favor of REO Properties Accredited Home Lenders, Inc. Moore, acting pro se, contends, among other things, that the original sale of the property to her was fraudulent, that the property was wrongfully foreclosed, that REO did not have the legal right to foreclose on the subject property, that she failed to receive proper notice of the dispossessory, and that the trial court failed to hold a hearing on the dispossessory. We reverse and remand for a reason not argued by Moore.

We start by holding that Moore’s enumerations of error fail for six reasons. First, “challenges to a foreclosure sale cannot be asserted as a defense in a subsequent dispossessory proceeding.” Vines v. LaSalle Bank Nat. Assn., 302 Ga. App. 353 (691 SE2d 242) (2010), and cases cited therein. Second, “[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under OCGA § 44-7-50 et seq.” (Citation and punctuation omitted.) Sanders v. Daniel, 302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010). Third, the record shows that Moore was provided notice dated July 30, 2008 of a trial to be held at 9:00 a.m. on August 13, 2008, and Moore has not shown how this notice was flawed. Fourth, the court’s order indicates that Moore appeared at a trial and that the court heard and considered evidence, and, therefore, Moore’s claim that the court failed to hold a hearing is not supported by the record. Fifth, Moore has failed to include a transcript of the trial, which precludes our review of any claim of error arising out of the trial. When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession. As the appellant, Moore had the burden to affirmatively show error by the record. This she failed to do. Bradley v. JPMorgan Chase Bank, 289 Ga. App. 704, 706 (658 SE2d 240) (2008). See also Miley v. Thornburg Mtg. Home Loans, 294 Ga. App. 140, 141 (668 SE2d 560) (2008). Sixth, Moore has failed to provide citations to authority or references to the record to support her enumerations of error. Court of Appeals Rule 25 (c) (2) (i) provides that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” Moreover, allegations of fact appearing only in appellate briefs and unsupported by evidence in the record will not be considered on appeal. Miley, 294 Ga. App. at 141.

Nevertheless, we reverse and remand because of a fatal discrepancy between the name of the plaintiff in the order below and the name of the appellee, which is made plain by the appellee’s own filings. The dispossessory warrant in this case was filed by “Accredited REO Properties, LLC.” There is no evidence that the plaintiff changed its name during the proceedings and nothing in the record to show that any other parties were added to the suit. Yet, the final order, which was presented by the attorney for the plaintiff, shows the name of the plaintiff to be “REO Properties Accredited Home Lenders, Inc.” It may be that something happened at the trial to correct an improper name. Nevertheless, on appeal, the plaintiff asserts again that its name is “Accredited REO Properties, LLC.” Thus, if that is the correct name, the order below is fatally flawed in that it grants a dispossessory to a different entity. We therefore reverse and remand for a hearing on the proper name of the party plaintiff, for correction of any errors in the record, and for further proceedings consistent with this opinion. Cf. Brand v. Southern Employment Svc., 247 Ga. App. 638, 639 (545 SE2d 67) (2001).

Decided January 27, 2011.

Angela Moore, pro se.

Kenney, Solomon & Medina, Robert J. Solomon, Pendergast & Jones, William J. Layng, Jr., Richard C. Taylor, for appellee.

Judgment reversed and case remanded with instruction.

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

       It was Moore’s responsibility to obtain a court reporter for the hearing. “[I]t [is] not incumbent upon the trial judge to arrange for the official reporter to take down the evidence at the .. . hearing], and] [t]he law does not mandate that every civil case be reported. [Cits.]” Savage v. Savage, 234 Ga. 853, 854 (218 SE2d 568) (1975) (interpreting former Code Ann. § 6-805). See also Quarterman v. Weiss, 212 Ga. App. 563 (1) (442 SE2d 813) (1994) (citing Savage in a dispossessory action).