author: REESE, Judge.

text:
    A16A1613.
    TATE v. TATE.
    (797 SE2d 227)
   REESE, Judge.

This case arises from a complaint for modification of child support and child custody filed by Appellee Misty Tate. According to the complaint, Appellee was awarded primary physical custody of the parties’ minor child, G. T., on April 7, 2004, pursuant to a final judgment and decree of divorce in Rockdale County Superior Court. Per the complaint, on March 15, 2010, the court modified custody by giving Appellant George Tate primary physical custody, pursuant to a final consent order. Appellee filed a complaint for modification of custody and child support on July 6, 2015, once again seeking primary physical custody. The trial court issued an order awarding immediate temporary custody of G. T. to Appellee, suspending Appel-lee’s child support payments to Appellant, and instructing the parties to attend a hearing on August 13, 2010. The record does not contain a judgment ordering Appellant to pay child support or noncovered healthcare expenses prior to the trial court’s finding of contempt. Appellant seeks review of the trial court’s order holding him in contempt for failing to pay child support, noncovered healthcare expenses and attorney fees associated with the prosecution of contempt. For the reasons set forth infra, we reverse.

On January 5, 2016, Appellee filed a petition for citation of contempt, asking the trial court to hold Appellant in contempt for failing to respond to Appellee’s counsel about a proposed final order to pay child support and part of the noncovered healthcare expenses of G. T., attorney fees and costs of litigation associated with bringing the contempt motion. Following a hearing on January 14, 2016, the trial court issued an order finding Appellant in contempt on January 15, 2016, nunc pro tunc to August 13, 2015. On appeal, Appellant argues that the trial court erred by finding him in contempt for failing to pay child support and part of the noncovered healthcare expenses for G. T., erred in issuing the final order nunc pro tunc to August 13, 2015, and erred in awarding Appellee attorney fees.

Contempt citations are criminal, civil, or both. Whereas criminal contempt imposes unconditional punishment for prior acts of disobedience, “civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” A finding of criminal contempt “imposes unconditional punishment for prior contempt, to preserve the court’s authority and to punish disobedience of its orders.” The standard of review in criminal contempt actions is, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” In civil contempt appeals, we will affirm, “if there is any evidence from which the trial court could have concluded that its order had been violated.” With these guiding principles in mind, we turn now to Appellant’s specific claims of error.

1. Appellant asserts that the trial court erred by finding him in contempt for failure to pay Appellee $3,129.15 on or before January 14, 2016, because there was no court order requiring that he make such payments. “The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.”

The record shows that, at the time the trial court issued its final order, child support payments by Appellee were suspended and the court had not ordered Appellant to pay child support. The trial court’s final order states that on August 13, 2015, during a pre-trial discussion amongst the trial court and counsel for the parties, the court provided “guidance” to counsel. Appellee contends that the parties’ counsel had reached an agreement that Appellant owed Appellee $3,129.15 prior to January 14, 2016, in child support, noncovered healthcare expenses and attorney fees, thereby negating the need for a written court order. In support of this contention, Appellee attached documentation labeled “Appellee’s Added R-56” and “Appellee’s Added R-57” to her brief. We are unable, however, to consider the evidence attached to the brief. “A brief cannot be used in lieu of the record or transcript for adding evidence to the record; we must take our evidence from the record and not from the brief of either party.”

The cases relied upon by Appellee, as authority, are distinguishable from this action. In both cases, the plaintiffs were asking the court to enforce a settlement agreement they had with the opposing parties. They were not asking the court to hold the opposing parties in contempt for violating the agreements, as in this action. In the present case, the record does not show there was an oral or written agreement between the parties’ counsel. Moreover, even if the parties had reached an agreement, they failed to submit it to the trial court and obtain a consent order. Thus, a judge is not authorized to hold a person in contempt of a verbal ruling that has not been reduced to writing, signed by the judge, and filed with the court clerk. Because there is no court order for Appellant to pay child support and part of the noncovered healthcare expenses for G. T., the trial court was not authorized to find Appellant in contempt for failure to pay Therefore, we reverse.

2. Appellant argues that the trial court erred in ordering him to pay $1,600 to Appellee by 4:00 p.m. on January 14, 2016, to purge himself of contempt or go to jail. The record shows that $1,600 payment is part of the $3,129.15 the trial court ordered Appellant to pay Appellee as part of the finding of contempt, with the remainder of $1,529.15 to be paid in installments. In light of our finding in Division 1, supra, that the court was not authorized to hold Appellant in contempt, we reverse the order requiring payment of $1,600 to Appellee.

Decided February 23, 2017.

Fred R. White, for appellant.

Garland C. Moore, for appellee.

3. Appellant contends that the trial court erred in awarding attorney fees to Appellee for the cost of bringing the petition for citation of contempt. In its final order, the trial court awarded Appellee attorney fees for the prosecution of the contempt petition; however, no legal authority or specific findings of conduct by Appellant was given as the basis for the award of attorney fees to Appellee. In contempt actions, “attorney fees are awarded only where some express authority or power exists. No authority exists to award attorney fees merely because the action is for contempt.” Preter-mitting the lack of legal authority or specific findings of conduct by Appellant to award the attorney fees, given our holding in Division 1, supra, that the court was not authorized to hold Appellant in contempt, we reverse the award of attorney fees.

4. Appellant argues that the trial court erred in issuing the final order nunc pro tunc to August 13,2015. We agree. The trial court did not rule upon the issues contained in the final order until January 15, 2016. Therefore, it may not deem such ruling as having been in effect since the previous August. Thus, based on the foregoing, we reverse.

Judgment reversed.

Dillard, P. J., and Bethel, J., concur.

       The court likely meant “August 13, 2015” rather than “August 13, 2010.'

       There is no hearing transcript in the record.

        Harrison v. CGU Ins. Co., 269 Ga. App. 549, 555, n. 2 (604 SE2d 615) (2004).

       Id. (citation and punctuation omitted).

         Stewart v. Tricord, LLC, 296 Ga. App. 834, 837 (2) (a) (676 SE2d 229) (2009) (citation and punctuation omitted).

       Id. (citation omitted).

       Id. (citation and punctuation omitted).

        In re Hughes, 299 Ga. App. 66, 68 (2) (681 SE2d 745) (2009) (citation and punctuation omitted).

        Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 826 (1) (648 SE2d 156) (2007) (punctuation and footnote omitted); see also Court of Appeals Rule 24 (g).

        Ray v. Ray, 263 Ga. 719 (438 SE2d 78) (1994); Stone v. King, 196 Ga. App. 251 (396 SE2d 45) (1990).

       See Ray, 263 Ga. at 719; Stone, 196 Ga. App. at 251.

       “OCGA § 9-11-58 (b) provides that, unless the court otherwise directs, no judgment shall be effective for any purpose until it has been signed by the judge and filed with the clerk. Until an order is signed by the judge and filed, it is ineffective for any purpose.” Shirley v. Abshire, 288 Ga. App. 819, 820 (655 SE2d 694) (2007) (footnote omitted).

       Id.

        Minor v. Minor, 257 Ga. 706, 709 (2) (362 SE2d 208) (1987); see City of Cumming v. Realty Dev. Corp., 268 Ga. 461, 462-463 (2) (491 SE2d 60) (1997) (grant of attorney fees was improper because the trial court’s order lacked specific findings of the conduct justifying the award of attorney fees).

       “A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such an entry can not be made to serve the office ... of supplying non-action on the part of the court.” Coleman v. Coleman , 240 Ga. 417, 418 (1) (240 SE2d 870) (1977) (citations and punctuation omitted).


source: Caselaw Access Project

author: Bethel, Judge.

license: Public Domain

text:
    A16A1835.
    CORRUGATED REPLACEMENTS, INC. et al. v. JOHNSON et al.
    (797 SE2d 238)
   Bethel, Judge.

In July 2011, Jacob Lee was under the influence of alcohol and an inhalant while driving a truck that struck a van carrying the Johnson family, killing one Johnson child and severely injuring other family members. The truck driven by Jacob was owned by Corrugated Replacements, Inc. (“Corrugated”), acompanyin which Jacob’s father, Robert Lee, held an ownership interest. The Johnson parents sued Robert and Corrugated (the “Defendants”), and the Defendants moved for summary judgment. The trial court denied the Defendants’ motion, and we granted the Defendants’ application for interlocutory appeal.

On appeal, the Defendants argue that the trial court erred in denying their motion for summary judgment because (1) the John-sons admitted that there was no evidence to support their negligent entrustment claim; (2) Corrugated was not vicariously liable for Jacob’s negligence because he was not acting within the course and scope of his employment; (3) the joint venture doctrine was inapplicable and thus could not impose liability on the Defendants; (4) the Johnsons’ attempts to obtain damages under a reverse veil-piercing theory is foreclosedby law; and (5) the Johnsons’ request for uncapped punitive damages was not supported by law. We agree with each of these arguments and therefore reverse the denial of summary judgment to the Defendants.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, the evidence, which is largely undisputed, shows that Jacob began working for pay at Corrugated when he was 14 years old. Jacob did various tasks at Corrugated and was required to do “whatever he was asked to do.” Although Jacob did not drive Corrugated vehicles as a part of his job, he had full access to company vehicles. In February 2011, Jacob was given a 2011 Dodge Ram — the truck Jacob was driving when he struck the Johnsons — as a gift for his 16th birthday In deposition, Robert stated that he personally paid for the truck and gave it to Jacob for his personal use, and that Robert listed Corrugated as owner on the title in the event the vehicle was needed for company purposes. Corrugated paid insurance on the truck and allowed Jacob to use a company credit card to pay for fuel. Although no maintenance was performed on the truck prior to the July 2011 accident, the record shows that Corrugated paid for the maintenance of other company-owned vehicles purchased for other Lee family members, even those not employed by the company, that were used for personal reasons.

At the time of the July 2011 collision, Jacob was not working for Corrugated. Other evidence also showed that, prior to the collision, Jacob had never received a traffic ticket or been involved in an accident, and it was undisputed that Robert had no knowledge that Jacob drank alcohol or used inhalants.

1. The Defendants argue that the trial court erred in denying their motion for summary judgment on the Johnsons’ negligent entrustment and respondeat superior claims because the Johnsons conceded that these claims failed as a matter of law. In response, the Johnsons argue that because they did not contest the Defendants’ motion on these issues, the claims were no longer before the trial court for consideration. Regardless of whether the Johnsons contested the Defendants’ motion for summary judgment on these two claims, they were not disposed of and remain pending below. Therefore, we must consider whether the Defendants are entitled to summary judgment.

(a) The record confirms that the Johnsons admitted that Robert, part owner of Corrugated, was unaware that Jacob drank alcohol or used inhalants. Additionally, the Johnsons pointed to no evidence showing that Jacob’s uncle, the other co-owner of Corrugated, knew about Jacob’s drinking or use of inhalants. The undisputed evidence also shows that Jacob never received a traffic ticket or was involved in an accident.

A necessary element of a negligent entrustment claim is that the owner of a vehicle has actual knowledge that the driver is incompetent or habitually reckless. See Bashlor v. Walker, 303 Ga. App. 478, 480 (1) (a) (693 SE2d 858) (2010). Here, the record is devoid of evidence establishing such knowledge, and Corrugated was therefore entitled to summary judgment on the negligent entrustment claim. See Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (a defendant is entitled to summary judgment where the plaintiff is unable to point to specific evidence in the record giving rise to a genuine issue of fact on plaintiff’s claims).

(b) As for the Johnsons’ respondeat superior claim, an employer is liable under this theory when the employee is acting within the course and scope of his employment. Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d 360) (2010). Although a presumption arises that the employee was acting in the course and scope of employment when the employee was driving his employer’s vehicle at the time of the collision, the employer may overcome this presumption “by presenting uncontradicted evidence showing that the employee was not acting in the course and scope of his employment.” See Dougherty Equip. Co. v. Roper, 327 Ga. App. 434, 436 (1) (a) (757 SE2d 885) (2014).

Here, although Jacob was driving a Corrugated vehicle at the time of the collision, the Johnsons admitted that Jacob was engaged in a purely personal activity and was not acting within the course and scope of his employment with Corrugated at the time of the collision. Therefore, Corrugated was entitled to summary judgment on the respondeat superior claim. See Dougherty Equip. Co., 327 Ga. App. at 436-437 (1) (a).

2. The Defendants also argue that they were entitled to summary judgment on the Johnsons’ claim that the Defendants were liable under a joint venture theory, which was raised for the first time in the Johnsons’ response to the Defendants’ summary judgment motion. We agree that the Defendants were entitled to summary judgment on this claim.

The theory of joint venturers arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other.

Kissun v. Humana, Inc., 267 Ga. 419, 420 (479 SE2d 751) (1997). A joint venture cannot exist without the right to exercise mutual control. Rossi v. Oxley, 269 Ga. 82, 83 (1) (495 SE2d 39) (1998). Thus, for a joint venture to exist, there must be not only a joint interest in the objects and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of one another in the activity causing the injury. Williams v. Chick-fil-A, 274 Ga. App. 169, 170 (617 SE2d 153) (2005); Security Dev. & Investment Co. v. Williamson, 112 Ga. App. 524, 525 (145 SE2d 581) (1965). It is the right of mutual control, rather than the actual exercise, that must be shown. Kelleher v. Pain Care of Ga., 246 Ga. App. 619, 620 (540 SE2d 705) (2000).

Here, the Johnsons allege that the purchase and use of the company truck was a joint undertaking by Jacob, Robert and Corrugated to satisfy the vehicular needs of each member. Assuming, without deciding, that this was a “joint undertaking for profit,” the critical element of mutual control is still missing. The evidence shows that the Defendants had the right to control Jacob’s use of the company vehicle, given that it was considered one of the company’s “on-call” vehicles that could be used by the company at any time. Robert also testified that he could get in the truck at any time.

There is no evidence, however, that Jacob had a mutual right. Although Jacob was given use of the vehicle for personal reasons, the undisputed evidence shows that the company had the right to use the vehicle whenever the company needed it. There is no record evidence that Jacob had any right, express or implied, to direct or control the Defendants’ use of the vehicle, including the right to keep the Defendants from using the vehicle when they desired. Without the right of each member to direct and control the conduct of the other, there is no joint venture. See Rossi, 269 Ga. at 83 (1) (agreement among doctors to be “on-call” for one another did not establish a joint venture in the absence of evidence that the physicians controlled each other’s professional judgment in the treatment of patients); Yancey v. Watkins, 308 Ga. App. 695, 696-697 (708 SE2d 539) (2011) (farm-worker and landowner were not engaged in joint venture where there was no evidence the farmworker had an equal right to control whether and how the landowner farmed his crop). Because there is no evidence of mutual control, the trial court erred by denying summary judgment to the Defendants on the joint venture claim.

3. The Defendants next argue that the Johnsons’ reverse veil-piercing claim is not recognized as a viable claim in Georgia and, therefore, could not defeat the Defendants’ motion for summary judgment. We agree.

There are two types of reverse piercing claims — “insider” and “outsider” claims. See Aeree v. McMahan, 276 Ga. 880, 881 (585 SE2d 873) (2003). The Johnsons are asserting an outsider reverse piercing claim in an attempt to permit them, as outsiders of the Corrugated corporation, to pierce the corporate veil to satisfy the debts of a corporate insider out of Corrugated’s assets. Id. (“Outsider reverse veil-piercing extends the traditional veil-piercing doctrine to permit a third-party creditor to pierce the veil to satisfy the debts of an individual out of the corporation’s assets.” (citation and punctuation omitted)). The problem for the Johnsons is that the Supreme Court of Georgia in Aeree refused to recognize outsider reverse veil-piercing as a viable claim. Id. at 881-883.

The Johnsons argue that, if their joint venture theory fails, which we concluded it has, they would be left without adequate legal remedies and, as a result, their case would fall within a narrow exception to the general rule that outsider reverse piercing claims are disallowed. The Johnsons argue that Aeree allowed for reverse veil-piercing claims to proceed in situations when a plaintiff is left without adequate legal remedies, and that this exception has been recognized by this Court in Carrier 411 Svcs. v. Insight Technology, 322 Ga. App. 167 (744 SE2d 356) (2013). The Johnsons misread Aeree and Carrier 411, as neither case held that an exception existed for the general rejection of the reverse veil-piercing theory.

In Aeree, the Supreme Court provided several reasons why the reverse veil-piercing theory should be rejected, reasoning that the novel theory had been recognized only in rare circumstances not applicable here. Aeree, 276 Ga. at 881-883. In reaching the decision to reject such a claim, the Supreme Court then stated, “Furthermore, disregard of the corporate form rests on equitable principles. As a consequence, it is appropriately granted only in the absence of adequate remedies at law.” Id. at 882-883 (citations and punctuation omitted).

The Johnsons argue that this statement “left the door open” for reverse veil-piercing claims. But the Johnsons read the quote in isolation, and ignore the rest of the Supreme Court’s analysis. In particular, in addition to explaining that reverse veil-piercing had been recognized in only very limited circumstances, the Supreme Court also explained that traditional remedies, like agency principles and standard judgment collection procedures, adequately covered situations in which an outsider seeks to recover from a corporation for the conduct of a controlling stockholder. Acree, 276 Ga. at 883. Because existing remedies were adequate, the Supreme Court concluded that inventing a new theory of liability like reverse veil-piercing was unnecessary and “would constitute a radical change to the concept of piercing the corporate veil in this state and, thus, should be created by the General Assembly and not by this Court.” Id. This strong language rejecting reverse piercing leaves no door open for an exception to exist. The Supreme Court firmly closed that door, and we are in no position to carve a hole in it. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); Etkind, v. Suarez, 234 Ga. App. 108, 109 (505 SE2d 831) (1998) (“[T]his court has no authority to overrule or modify a decision of the Supreme Court of Georgia[.]”). In no way did our discussion in Carrier 411 attempt to alter that landscape. Although Carrier 411 cited Aeree and stated that “a claim for reverse-piercing of the corporate veil is appropriately granted only in the absence of adequate remedies at law,” 322 Ga. App. at 170 (2), this quote does not reflect the holding of Carrier 411. There, we rejected a defendant’s claim that the trial court was allowing a plaintiff to pursue a reverse piercing claim. Id. We rejected the defendant’s assertion because the plaintiff was not pursuing an equitable action like reverse veil-piercing but was actually pursuing a garnishment action that was expressly authorized by law. Id. It is axiomatic that

[t]he full text of judicial decisions is not law. Only the holdings of judicial decisions are law. And a decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises. Language that sounds like a holding — but actually exceeds the scope of the case’s factual context — is not a holding no matter how much it sounds like one.

Classic Commercial Sues. v. Baldwin, 336 Ga. App. 183, 190 (784 SE2d 44) (2016) (Peterson, J., concurring fully and specially) (citation omitted). Thus, neither Aeree nor Carrier 411 created an exception to the rule that reverse piercing is not a viable claim in Georgia.

We also reject the Johnsons’ argument that they need to reverse pierce Corrugated because they are without adequate legal remedies to obtain a judgment against the Defendants. As discussed above, a reverse piercing claim is an attempt by outsiders, such as third-party creditors, to pierce the corporate veil in order to satisfy the debts of an individual out of the corporation’s assets. See Aeree, 276 Ga. at 881. To the extent that claims of liability remain pending against Jacob and Robert (under the family purpose doctrine), there is no suggestion that the traditional procedures for collecting a judgment on those claims against them would be inadequate. Thus, there is no basis to allow a reverse veil-piercing claim. See Acree, 276 Ga. at 883 (rejecting reverse piercing claim because standard judgment collection procedures were sufficient to cover shareholder liability); Carrier 411, 322 Ga. App. at 170 (2) (plaintiff entitled to file garnishment action against corporation to satisfy unpaid judgment of corporation’s employee). The trial court therefore erred in denying summary judgment on this claim.

4. In their final enumeration of error, the Defendants argue that they were entitled to summary judgment on the Johnsons’ claim for punitive damages because the evidence would support such damages only as to Jacob, the active tortfeasor. We agree.

As a preliminary matter, because we have concluded that Corrugated was entitled to summary judgment on all of the Johnsons’ claims before us, the punitive damages claim against Corrugated arising from such claims must also fail, as it was a derivative claim. A derivative claim cannot survive the absence of compensatory damages on the underlying claim. Boeing Co. v. Blane Intl. Group, 276 Ga. App. 672, 676 (2) (624 SE2d 227) (2005) (reversing award of punitive damages where underlying claims were reversed).

As for the remaining family purpose doctrine claim against Robert, the Johnsons asserted a claim for uncapped punitive damages pursuant to OCGA § 51-12-5.1 (f) based on Jacob’s alleged intoxication. That statute pertinently provides:

In a tort case in which the cause of action does not arise from product liability, if it is found that . . . the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.

OCGA § 51-12-5.1 (f).

The Defendants argue that the Johnsons’ punitive damages claim against Robert is foreclosed by precedent from this Court, including our decision in Capp v. Carlito’s Mexican Bar & Grill #1, 288 Ga. App. 779 (655 SE2d 232) (2007). In Capp, a plaintiff sued a restaurant under the Georgia Dram Shop Act, alleging that one of the restaurant’s employees knowingly served alcohol to a person who was in a state of noticeable intoxication before that person drove away drunk and caused an accident. Id. at 779-782 (1). We held that punitive damages against the restaurant were not available under OCGA § 51-12-5.1 (f), because the statute authorized such damages to be assessed only against the drunk driver. Capp, 288 Ga. App. at 783-784 (3). In reaching that conclusion, we reasoned that, in cases where a defendant committed a tort while under the influence of alcohol, the “statute makes clear . . . that such damages shall not be the liability of any defendant other than the active tort-feasor, that is the defendant acting under the influence of alcohol.” Id. (citation and punctuation omitted).

Decided February 23, 2017

The Johnsons do not argue that Capp was wrongly decided, and so we do not revisit the issue. Instead, we consider the Johnsons’ argument that Capp is distinguishable because that case involved a claim of direct liability, while this suit involved issues of vicarious liability and agency We are not persuaded that this is a meaningful difference. In Capp, we emphasized that the impaired driver who commits a tort is the “active tort-feasor” within the meaning of OCGA § 51-12-5.1 (f), even though the tort claim in that case was based on the active conduct of the restaurant’s employee in serving alcohol to the driver. Capp, 288 Ga. App. at 779-780 (1), 783-784 (3). Under this reasoning, the only active tortfeasor in this case for OCGA § 51-12-5.1 (f) purposes is Jacob, who struck the Johnsons’ van while driving under the influence of alcohol and an inhalant. Thus, the Johnsons cannot recover punitive damages against Robert, who is, at most, a passive tortfeasor under the family purpose doctrine. Because punitive damages could not be assessed against the Defendants, we reverse the denial of summary judgment on the punitive damages claim against them.

Judgment reversed.

Dillard, P. J., and Reese, J., concur.

McMickle, Kurey & Branch, Kevin P. Branch; Fain, Major & Brennan, James W. Hardee, Sean L. Gill, for appellants.

The Summerville Firm, J. Darren Summerville, Angela R. Fox, Mecca S. Anderson; Fried Rogers Goldberg, Brian D. Rogers, for appellees.

       The Johnsons also sued Jacob, who was a minor at the time of the accident and at the time the suit was filed, but the claims against him are not a part of this appeal. Also not before us is the Johnsons’ claim that Robert was liable under the family purpose doctrine, because Robert does not challenge the denial of summary judgment on this claim. Therefore, these claims remain pending below.

       Jacob’s uncle did not know the truck was owned by Corrugated until after the accident.

       Although the Johnsons did not advance this theory in their complaint, it is properly before us because it was raised below, and the pleadings are deemed amended to conform to the evidence presented. See DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 124-125 (1) (A) (248 SE2d 193) (1978) (holding that, with regard to a theory raised by a plaintiff for the first time at a hearing on a motion for summary judgment, the pleadings were deemed amended to conform to the evidence presented and that the issue was properly considered on appeal).

       The Johnsons allege that each member of the joint venture contributed to and profited from the arrangement in the following ways: Robert contributed to the joint venture by paying for the truck himself, and “profited” by having the company pay for the maintenance and insurance costs of a family vehicle; J acob contributed by providing daily operation of the vehicle and ensuring the vehicle was fueled and properly maintained for company use, and benefitted by having a vehicle for his personal use; and Corrugated paid for the vehicle’s maintenance and operational expenses, and profited by having an accessible, “on-call” vehicle that it did not purchase, depreciating the value of the truck for tax purposes, and delegating the day-to-day responsibility of the truck to Jacob.

       The Defendants also rely on American Material Svcs. v. Giddens, 296 Ga. App. 643 (675 SE2d 540) (2009), which cited the Capp decision. Id. at 647 (2). The Johnsons argue that our statements interpreting OCGA § 51-12-5.1 (f) are dicta, because before citing Capp, we had already concluded that there was no evidentiary basis to support a punitive damages verdict. Id. We need not resolve whether Giddens applies, because Capp squarely resolves the question before us.


author: McFADDEN, Presiding Judge.

text:
    A16A1932.
    MONROE v. THE STATE.
    (797 SE2d 245)
   McFADDEN, Presiding Judge.

After a jury trial, Thomas Roy Monroe was convicted of driving under the influence of alcohol to the extent that he was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage. Monroe appeals his convictions, arguing that the evidence does not support them; that the trial court erred by admitting evidence of his prior DUI conviction; that the trial court erred by allowing the state to introduce certain demonstrative evidence; and that the trial court should have excluded testimony about an open container of what appeared to be an alcoholic beverage found in his car.

We find that the evidence was sufficient and that Monroe has not shown reversible error in the admission of his prior conviction, the demonstrative evidence, or the testimony about the open container. So we affirm Monroe’s convictions.

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the verdict.” Coleman v. State, 284 Ga. App. 811, 812 (1) (644 SE2d 910) (2007) (citation omitted). So viewed, the evidence showed that at 3:00 a.m. on May 9, 2013, a sergeant with the Gwinnett County Police Department pulled over Monroe’s car for speeding and for failing to maintain his lane. The car was traveling at a rate of 65 to 70 miles per hour, while the speed limit was 45 miles per hour, and the sergeant had seen Monroe twice drift over his lane line. The sergeant immediately smelled an odor of alcohol coming from inside the car. The sergeant believed that Monroe was intoxicated to the point where he was an unsafe driver.

The sergeant called for another officer to take over the investigation. That officer observed six out of six clues of impairment in his horizontal gaze nystagmus evaluation of Monroe. He also smelled the odor of an alcoholic beverage coming from Monroe’s mouth and observed that Monroe’s speech was somewhat slurred. Monroe did not participate in the walk-and-turn and one-leg stand evaluations, explaining that he had been in a car accident. He refused to submit to a breath test after the officer had read him his implied consent rights. Based on Monroe’s driving as well as the horizontal gaze nystagmus evaluation, the officer arrested Monroe for driving under the influence of alcohol. After Monroe’s arrest, the sergeant searched Monroe’s car and found a glass filled with ice and a dark liquid that smelled like an alcoholic beverage.

This evidence was sufficient for the jury to find beyond a reasonable doubt that Monroe was guilty of driving under the influence of alcohol to the extent that he was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage. OCGA §§ 40-6-391 (a) (1); 40-6-181; 40-6-48 (1); 40-6-253 (b); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Prior DUI conviction.

Monroe argues that the trial court erred by admitting evidence of his prior DUI conviction. The trial court admitted the evidence both under OCGA § 24-4-417 (a) (1) on the ground that it was relevant to prove knowledge and under OCGA § 24-4-404 (b) on the ground that it was relevant to show his intent.

First, Monroe argues that OCGA § 24-4-417 (a) (1) is unconstitutionally vague. But Monroe has failed to point to any place in the record where the trial court distinctly ruled on his constitutional challenge. Therefore, the constitutional challenge was not preserved for appeal. See Focus Entertainment Int'l. v. Bailey, 256 Ga. App. 283, 284 (568 SE2d 183) (2002).

Monroe also argues that admission of this evidence violated his Fifth Amendment right not to incriminate himself. He seems to argue that if the evidence of his prior DUI conviction was admissible to prove knowledge or intent, then its admission required him to testify to explain his lack of knowledge or intent. But Monroe

cites no authority to support his argument that adverse evidence must be excluded because its admission might impact a defendant’s decision to testify. To the contrary, even if [Monroe] was forced to choose between asserting a defense based upon his own testimony or remaining silent, that is a choice that is inherent in any defendant’s decision whether to testify or not, and that does not violate a defendant’s constitutional rights.

Whitman v. State, 316 Ga. App. 655, 660 (729 SE2d 409) (2012) (citations and punctuation omitted).

Monroe claims that the admission of his prior DUI conviction amounted to double jeopardy. But he failed to support this claim with citation of authority or argument and thus has abandoned it. Court of Appeals Rule 25 (c) (2). In any event, double jeopardy “prevents successive prosecutions for the same offense[;] it does not prevent prosecutions for offenses which are separate and similar to a prior prosecuted offense.” Loden v. State, 199 Ga. App. 683, 689 (6) (406 SE2d 103) (1991) (citations omitted; emphasis in original).

Monroe argues that the trial court erred in admitting his prior DUI conviction under OCGA § 24-4-417 (a) (1) as relevant to prove knowledge and under OCGA § 24-4-404 (b) as relevant to prove intent. He argues that the fact he was previously convicted of DUI is not relevant to his knowledge or intent. We disagree.

OCGA § 24-4-417 (a) (1) provides in pertinent part that in DUI prosecutions, evidence of the commission of another DUI “on a different occasion by the same accused shallbe admissible when: (1) [t]he accused refused in the current case to take the state administered test required . . . and such evidence is relevant to prove knowledge . . . (emphasis supplied). The statute “contains a presumption in favor of the admission of [such] evidence.” State v. Frost, 297 Ga. 296, 302 (773 SE2d 700) (2015) (citation omitted). Proof of Monroe’s prior DUI conviction could strengthen the inference that the factfinder could draw from Monroe’s refusal to take the state-administered test this time, that had he done so, it would have shown the presence of alcohol. Id. at 304. “This is so because ... it might properly be inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely.” Id. at 305. Monroe has not shown that the trial court abused his discretion in finding that the prior DUI was relevant to prove knowledge. And because the statutory conditions obtained, the court did not err in admitting the prior DUI under OCGA § 24-4-417 (a) (1).

Nor has Monroe shown that the trial court erred in admitting his prior DUI conviction under OCGA § 24-4-404 (b) as relevant to show intent. State v. Jones, 297 Ga. 156 (773 SE2d 170) (2015). “[B]ecause the same state of mind was required for committing the prior act and the charged crime[ ], i.e., the general intent to drive while under the influence of alcohol, evidence of [Monroe’s] prior conviction was relevant under Rule 404 (b) to show [his] intent on this occasion.” Id. at 160-161 (2) (citations and footnote omitted). Monroe has not shown that the trial court clearly abused his discretion in admitting this evidence under OCGA § 24-4-404 (b). Id. at 159 (1) (“Atrial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.”) (citations omitted).

3. Demonstrative evidence.

Monroe argues that the trial court erred by allowing the state to admit certain demonstrative evidence: video clips showing three types of horizontal gaze nystagmus. The state introduced the video clips to show the jury what nystagmus looks like while the arresting officer was testifying about conducting the horizontal gaze nystag-mus evaluation of Monroe. The officer testified that Monroe demonstrated all three types of nystagmus shown in the video clips.

Demonstrative evidence . . . must be relevant, see OCGA § 24-4-401, and it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, see OCGA § 24-4-403. Demonstrations are also subject to the reasonable control of the trial court. See OCGA § 24-6-611.

Smith v. State, 299 Ga. 424, 434-435 (3) (b) (788 SE2d 433) (2016) (footnote omitted). The trial court has wide discretion to admit demonstrative evidence, and

[t]he burden is on the party offering [demonstrative evidence] to lay a proper foundation establishing a similarity of circumstances and conditions. Although the conditions of the demonstration need not be identical to the event at issue, they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the [demonstrative evidence] is directed. Further, experimental or demonstrative evidence, like any evidence offered at trial, should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury

Id. at 435 (3) (b) (citation and punctuation omitted). Here, the officer’s testimony made clear that the video clips were not of Monroe, but that in the “substantial particulars,” the conditions of the video clips and his observations of Monroe were similar: both showed the same kind of nystagmus. Monroe has not shown that the trial court abused his discretion in admitting this demonstrative evidence.

4. Open container.

Monroe argues that the trial court erred by allowing the sergeant and arresting officer to testify that they observed in Monroe’s car an open container that was full of ice cubes and a dark liquid with the distinct odor of alcohol. He argues that the testimony was inadmissible because the state did not preserve the actual open container. He cites State v. Miller, 287 Ga. 748 (699 SE2d 316) (2010), which concerns “the proper standard for analyzing whether the destruction of potentially exculpatory evidence rises to a violation of due process.” Id.

Decided February 23, 2017

Andrew T. Mosley II, for appellant.

RosannaM. Szabo, Solicitor-General, DanaM. Pagán, Assistant Solicitor-General, for appellee.

In determining whether the state’s failure to preserve evidence which might have exonerated the defendant amounts to a constitutional violation,

a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Miller, 287 Ga. at 754 (citation omitted). A claim based on the state’s destruction of evidence “can be successful only if [Monroe] shows that the evidence was material and, that the police acted in bad faith in failing to preserve it.” Doyal v. State, 287 Ga. App. 667, 671 (6) (653 SE2d 52) (2007) (citation and punctuation omitted; emphasis supplied). Pretermitting whether the open-container evidence possessed an apparent exculpatory value so as to make it constitutionally material, Monroe has not shown that the police acted in bad faith in failing to preserve it.Id. Cf. Championv. State, 260 Ga. App. 12, 14-15 (2) (579 SE2d 35) (2003) (rejecting contention of accountant charged with “manipulation of deposit records” to facilitate stealing cash that lost financial records were material because they “would have shown that certain expenses were paid in cash and thereby explained the missing money”). So he has not shown that the trial court erred by allowing the officers to testify about this evidence.

Judgment affirmed. Miller, P. J., concurs.

McMillian, J., concurs fully in Divisions 1, 2, and 3, and in judgment only in Division 4.


text:
    A16A1946.
    PRACTICE BENEFITS, LLC v. ENTERA HOLDINGS, LLC et al.
    (797 SE2d 250)
   REESE, Judge.

Practice Benefits, LLC (“Practice Benefits”), a member of a limited liability company, Entera Holdings, LLC (“Entera”), appeals from an order dismissing its complaint alleging breach of contract by Entera and breach of fiduciary duty by M. Clark Fain III (“Fain”), Entera’s manager. For the reasons set forth infra, we reverse.

Practice Benefits alleged the following facts in its amended complaint against Entera and Fain. In 2010, J. Richard and Helen Hicks, Marty H. Jones, and Robert Hamilton entered into an operating agreement to form Entera and intended for each of the four owners, either individually or through his or her designated entity, to have one vote. A conflict arose during the organization process, and counsel for Entera advised the parties to combine the ownership of Richard and Helen Hicks into an entity, Practice Benefits.

The members allowed Practice Benefits to exercise two votes in all business matters until Fain became the manager of Entera in 2013. Fain refused to allow an amendment to the governing documents to effect the original agreement that Practice Benefits have two votes and refused to allow Practice Benefits to cast two votes.

In 2013, Entera returned the entire initial capital contributions of the other original members, The Martin H. Jones Family Partnership, LP, and The Hamilton Group II, LLC, the designated entities for Jones and Hamilton. According to Practice Benefits, it too was entitled to return of its initial capital contribution. Entera did not return that contribution to Practice Benefits. Moreover, in 2014, Entera made distributions to all its members except for Practice Benefits, in violation of the provision in the operating agreement requiring pro rata distribution based on each member’s percentage interest in Entera.

Practice Benefits filed suit against Entera and Fain, alleging breach of contract and breach of fiduciary duty and seeking injunctive relief, an accounting, damages, and costs. Entera filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, on the ground that it was not a party to the operating agreement and thus could not be held liable for any alleged breaches thereof.

Fain also moved to dismiss the complaint, contending that the breach of fiduciary claims were derivative in nature because they impacted all members of Entera, collectively. According to Fain, the trial court thus lacked jurisdiction over the subject matter because Practice Benefits did not allege that it had waited 90 days after demanding that Entera’s board of directors take suitable action before filing suit, as required by OCGA §§ 14-11-801 (3) and 14-11-802.

Following a hearing, the trial court granted both motions to dismiss the complaint, finding that it lacked subject matter jurisdiction to consider the claims against Fain because they were derivative in nature, and that Entera was not a party to the operating agreement. Practice Benefits appealed.

Atrial court’s ruling on a motion to dismiss is reviewed de novo. Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.

With these guiding principles in mind, we turn now to the specific claims of error raised by Practice Benefits.

1. Practice Benefits argues that the trial court erred in granting Entera’s motion to dismiss on the ground that it was not a party to the operating agreement because a limited liability company is subject to andboundbyitsoperatingagreementpursuanttoOCGA § 14-11-101 (18).

OCGA § 14-11-101 (18) provides in part: “A limited liability company is not required to execute its operating agreement and, except as otherwise provided in the operating agreement, is bound by its operating agreement whether or not the limited liability company executes the operating agreement.”

Entera does not dispute that the amended complaint alleged facts that, if construed in the light most favorable to Practice Benefits, stated a claim for which relief could be granted. Further, Entera concedes that much of the language of OCGA § 14-11-101 (18) is on point. Based on the unambiguous language of OCGA § 14-11-101 (18), we hold that the trial court erred in dismissing the claims against Entera.

2. Practice Benefits contends that the trial court erred in dismissing its claims against Fain because the complaint alleged that it had suffered separate and distinct injuries, independent of the other members, as a result of Fain’s breach of fiduciary duty.

Under OCGA § 14-11-305 (1), the managing members of a limited liability company owe fiduciary duties to the company and its member investors. “The general rule is that actions for breach of fiduciary duties are to be brought in derivative suits. The general rule is applicable even where the individual is the sole stockholder.”

The reasons underlying the general rule are that 1) it prevents a multiplicity of lawsuits by shareholders; 2) it protects corporate creditors by putting the proceeds of the recovery back in the corporation; 3) it protects the interests of all shareholders by increasing the value of their shares, instead of allowing a recovery by one shareholder to prejudice the rights of others not a party to the suit; and 4) it adequately compensates the injured shareholder by increasing the value of his shares.

The determination whether the claims were derivative or direct “is made by looking to what the pleader alleged. It is the nature of the wrong alleged and not the pleader’s designation or stated intention that controls the court’s decision.”

An exception applies, however, if the plaintiff alleges a “special injury,” i.e., the shareholder was “injured in a way which is different, from the other shareholders or independently of the corporation to have standing to assert a direct action.”

Decided February 23, 2017.

Taylor English Duma, Amy K. Weber, John M. Gross, for appellant.

Here, Practice Benefits alleged that it “was the only owner whose voting rights were wrongfully taken by Fain, the only owner who did not receive . . . distributions . . . , and the only owner who was not returned its Initial Capital Contribution.” Although the right to proper election procedures inures to the benefit of all members, a particular member may have a direct action alleging wrongful invalidation of its vote if the member sets forth a “separate and distinct” injury.

Practice Benefits did not argue that the capital contribution should not have been returned or that distributions should not have been made but complained instead that the operating agreement required pro rata distribution based on each member’s percentage interest in Entera. Finally, there is no evidence that any of the four reasons for requiring a derivative suit is present in this case.

The allegations in the amended complaint, construed in the light most favorable to Practice Benefits, and with all doubts resolved in its favor, do not disclose with certainty that Practice Benefits would not be entitled to relief under the “special injury” exception. The trial court thus erred in dismissing the claims against Fain.

Judgment reversed.

Dillard, P. J., and Bethel, J., concur.

Fellows LaBriola, Henry D. Fellows, Jr., Christina M. Baugh; Andersen, Tate & Carr, Thomas T. Tate, Elizabeth L. Clack-Freeman, Tyler A. Dillard, for appellees.

       See OCGA § 9-11-12 (b) (6).

       See OCGA § 9-11-12 (b) (1).

        Barnett v. Fullard, 306 Ga. App. 148-149 (701 SE2d 608) (2010) (citation omitted).

       Although Practice Benefits did not point out OCGA § 14-11-101 (18) in its argument to the trial court, it did argue that “Georgia courts ... have allowed breach of contract claims based on breach of an operating agreement against a limited liability company for breach of the operating agreement that governs it.” See ULQ, LLC v. Meder, 293 Ga. App. 176, 178-180 (1) (666 SE2d 713) (2008) (affirming denial of limited liability company’s motion for summary judgment on former officer’s breach-of-contract claim because its manager was bound to exercise good faith in determining officer’s removal was in company’s best interests where the operating agreement did not give manager absolute discretion in removal of officers); James E. Warren, M.D.,P.C. v. Weber & Warren Anesthesia Svcs., 272 Ga. App. 232, 235 (2) (612 SE2d 17) (2005) (evidence supported jury verdict on breach-of-contract claim where it was “undisputed that under the [ojperating [ajgreement, [a former member] was entitled to one-third of the accounts receivable as of the effective date of its resignation, ... and that the [company] had not paid [the former member] as of trial.”).

        Internal Medicine Alliance v. Budell, 290 Ga. App. 231, 236 (4) (659 SE2d 668) (2008) (citing OCGA § 14-11-305 (1)).

        Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1) (397 SE2d 699) (1990) (citation and punctuation omitted).

        Thomas v. Dickson, 250 Ga. 772, 774 (301 SE2d 49) (1983) (citations omitted).

        Phoenix Airline Svcs., 260 Ga. at 585 (1).

        Grace Bros. v. Farley Indus., 264 Ga. 817, 819 (2) (450 SE2d 814) (1994).

        Crittenton v. Southland Owners Assn., 312 Ga. App. 521, 524(2) (718 SE2d 839) (2011); see also Southwest Health & Wellness v. Work, 282 Ga. App. 619, 625-626 (2) (b) (639 SE2d 570) (2006) (minority members failed to establish injuries separate and apart from the other shareholders because the interest and voting power of all the shareholders were diminished in proportion to their ownership by the selling of interests to new shareholders).

       See Crittenton, 312 Ga. App. at 524 (2).

       See Thomas, supra at 774-775 (holding that the plaintiff was allowed to bring a direct action for misappropriated corporate funds because she was the only injured shareholder, so there was no concern about a multiplicity of lawsuits and her recovery would not prejudice the other shareholders; she would not benefit from an increase in the value of her stock because there was no market for the stock of the closely held corporation; and the corporation’s creditors would not be prejudiced).

       See Grace Bros., supra at 820 (2) (“Where ... it is sufficiently alleged that the effect of the controlling stockholders!’] self-serving manipulation of corporate affairs causes a singular economic injury to minority interests alone, the minority have stated a cause of action for ‘special’ injury.”) (citation omitted).


text:
    A16A2133.
    LOWRY v. WINENGER.
    (797 SE2d 230)
   Bethel, Judge.

April Lowry (the “mother”) appeals from a final order modifying custody, visitation, and child support with regard to her seven-year-old child (the “child”). The mother contends that the trial court erred in awarding modification because there was not sufficient evidence presented by her former husband, Robert Winenger (the “father”), to demonstrate that a material change in circumstances adversely affecting the child had occurred. She also contends that the trial court should not have considered potential future negative impacts to the child in determining that a material change in circumstances had occurred. For the reasons stated below, we affirm.

When considering a ruling on a material change in circumstances, this Court views the evidence in the record in the light most favorable to the trial court’s order and will affirm the trial court’s decision if “there is any evidence to support it.” Horn v. Shepherd, 292 Ga. 14, 18 (5) (732 SE2d 427) (2012) (citation omitted). So viewed, the mother and the father were divorced in 2013. Since that time, pursuant to their divorce decree, they have shared custody of the child with parenting time divided roughly equally between them. The mother has been the child’s primary physical custodian, and neither parent was ordered to pay child support. The divorce decree also provided, inter alia, that the father retained final decision-making authority with regard to the child’s religious upbringing and instruction.

In the proceedings below, the father petitioned the court for a modification of the decree, seeking joint legal and primary physical custody of the child. A guardian ad litem (the “guardian”) was appointed.

The evidence showed that several changes had taken place in the child’s living and social arrangements in the time following the divorce. The mother was remarried two months after her divorce from the father was finalized. Soon after her remarriage, the mother converted to the Mormon faith, and at times when the child was with her, the mother took the child to a Mormon church and encouraged the child to participate in other activities associated with the Mormon church. The father did not consent to the child’s attendance at the mother’s new church, and the father stated that the child’s attendance at the church had confused the child and interfered with the father’s authority over the child’s religious upbringing and the father’s decision to raise the child in a nondenominational Christian church.

The mother also moved from the former marital residence in Forsyth County that she lived in with the child following the divorce to a number of other residences before settling in their current home in Hall County Both the father and the guardian testified that the mother misled them as to where the child would be living during this period of transition.

The father and the guardian also testified that the move extended the father’s drive to the mother’s residence by approximately 50 minutes. The father’s testimony and that of the guardian indicated that this move had made the agreed-upon parenting plan more challenging and also made it more difficult for the child to be involved in religious, extracurricular, and educational activities in Forsyth County that the father had selected for him. The father’s testimony indicated that the move to Hall County had facilitated the mother’s interference with that authority and that, since moving, the mother had signed the child up for activities that conflicted with those chosen by the father and failed to take the child to activities that the father had scheduled for the child.

The father also presented evidence that the school the child attended in Hall County was not as highly rated as the schools he could attend in Forsyth County and that his interests would be better served by attending school in Forsyth County. The father testified that the child began to exhibit apathy toward his new school in Hall County, which he had not shown with regard to his school in Forsyth County

In her report, the guardian suggested that a modification to the custody order should be made. She indicated that because of her understanding of the differences between the mother’s church and the father’s church, it was important that one parent be in charge of religious upbringing and that the other parent respect that choice. The guardian suggested that awarding primary custody to the father would best serve the child’s interests.

In its ruling, the trial court found that the child had suffered a number of negative impacts from these changes. First, the trial court found that the mother’s actions to conceal the location of her residence from the father violated the divorce decree, showed poor judgment on her part, and negatively impacted the safety and welfare of the child. Second, the trial court found that the mother’s decision to move to Hall County added to the child’s commute time and demonstrated an intention to interfere with the father’s relationship with the child, which negatively impacted the child. Third, the trial court found that the child began to exhibit apathy for school after his move to Hall County The trial court found that, although the child continued to receive good grades and had demonstrated other signs of academic progress at his school in Hall County, his apathy regarding school was a negative impact resulting from the changes. Finally, the trial court found that, by taking the child to activities at her church, the mother had not respected the father’s final decision-making authority with regard to the child’s religious upbringing, in contravention of the divorce decree, and that this decision created confusion for the child.

Finding that a material change in circumstances adversely affecting the child had occurred and that the change in custody sought by the father was in the child’s best interests, based on the totality of the child’s changed circumstances and the resulting harms noted above, the trial court granted the father’s petition, awarding him primary physical custody of the child. The trial court granted visitation rights to the mother and ordered her to pay monthly child support. The trial court also held the mother in contempt for violations of the divorce decree relating to the father’s authority over the child’s extracurricular activities and religious upbringing. This appeal followed.

1. The mother first contends that the evidence presented to the trial court was not sufficient to demonstrate a material change in circumstance that negatively impacted the child. Once an award of child custody has been made, when the noncustodial parent seeks to change that arrangement, the trial court must determine whether there has been a material change in circumstances affecting the welfare of the child. Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). The trial court can then determine whether the child’s best interests will be served by a change in custody. Todd v. Casciano, 256 Ga. App. 631, 632 (1) (569 SE2d 566) (2002).

“Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case.” Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). This Court will not interfere with a trial court’s decision “unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, [we] will not find there was an abuse of discretion.” Autrey v. Autrey, 288 Ga. 283, 285 (4) (702 SE2d 878) (2010) (citation omitted).

In this case, the trial court considered the totality of the circumstances in determining whether a material change in circumstances had occurred warranting a change in the parties’ custody arrangement. Noting that no single factor was sufficient to warrant the change sought by the father, the trial court determined that, in light of all of the evidence of changes in the child’s circumstances and the evidence showing their negative impact on the child, “together they constitute the required change in condition.”

Based on the trial court’s examination of the testimony presented, we find that the record reflects sufficient evidence of both material changes in the child’s circumstances and adverse effects due to such changes. The record reflects numerous changes in the child’s living, extracurricular, and school arrangements since the parties’ divorce. As to the impact of those changes on the child, the father’s statements regarding the child’s apathy toward schoolwork are evidence of an adverse effect on the child. See Fox v. Korucu, 315 Ga. App. 851, 855 (729 SE2d 16) (2012) (holding that an affidavit submittedby a parent stating that the child was unhappy and stressed about attending her current school was evidence of an adverse change materially affecting the child sufficient to create a material question of fact). Likewise, the father presented evidence as to differences between the father’s church and the Mormon church attended by the mother and the confusion that the child suffered as a result of his exposure to both systems of belief.

The role of the trial court is to weigh the evidence before it, and this Court “will not interfere with [the trial judge’s] finding when there is any evidence to support it.” Horn, 292 Ga. at 18 (5) (citation omitted). Finding such evidence in the record, we hold that it was sufficient for the trial court to determine that a material change in circumstance adversely affecting the child had occurred.

2. The mother also contends that the trial court erred by looking to potential future negative impacts on the child in determining that a current change in circumstances had occurred. In support of her argument, the mother quotes a portion of the trial court’s order stating that the mother would not make future decisions in the child’s interest. This is a selective reading of the trial court’s statement.

Summarizing its rationale for awarding the custody modification sought by the father, the relevant passage of the trial court’s order states:

The Court also concludes that the Mother has demonstrated that if she maintains custody, she will continue to make decisions which are in her best interest, not the best interest of the . . . Child. The Mother stated her intention to ignore the Father’s decision making authority Such decisions will negatively impact [the Child] in the future.

By directing this Court to only the final sentence of the above text, the mother mischaracterizes the purpose of the trial court’s statement and its basis in the record. Rather than a further explanation of the adverse impact on the child resulting from changes in his circumstances, which the trial court had already discussed in its order, we view these statements as part of the trial court’s analysis of what custody arrangement will be in the child’s best interests. The trial court examined the mother’s current behavior and found, based on the record before it, that she would likely continue disregarding the parenting plan to the child’s detriment. We find no legal error in this analysis.

OCGA § 19-9-3 (a) (2) provides that a judge considering a custody issue “may take into consideration all the circumstances of the case ... in determining to whom custody of the child should be awarded,” and that “[t]he duty of the judge . . . shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness . . . The trial court’s task in all custody matters is necessarily a forward-looking analysis, and in such matters it “has very broad discretion, looking always to the best interest of the child.” Autrey, 288 Ga. at 285 (4).

Decided February 23, 2017.

Patterson Moore Butler, Jennifer D. Patterson, for appellant.

Andrea M. Johnson, for appellee.

Here, because the trial court identified adverse impacts on the child that it deemed to be the result of changes to his circumstances, the trial court could then determine how a change to the custody arrangement would best benefit the child. In making that analysis, the trial court had the discretion to consider the evidence before it, including evidence regarding the potential impact on the child should the current custody arrangement continue, the recommendations of the guardian, evidence regarding the actions of one parent to further or to impede the child’s relationship with the other parent, the parties’ adherence to the terms of the divorce decree, the mother’s actions to mislead the father and the guardian, and any other relevant factor. In weighing such factors, the trial court concluded that the best interests of the child would be served by a change in the custody arrangement.

Deferring to the trial court’s factual determinations based on the evidence in the record, we find that these factors were appropriately considered in this case, and accordingly we find no legal error in the ruling of the court below.

Judgment affirmed. Dillard,

P. J., and Reese, J., concur.

       The mother filed an application with this Court for discretionary appeal of the trial court’s order. This Court ruled that the order is directly appealable under OCGA § 5-6-34 (a) (11) and granted her application.

       Under the divorce decree, the father also retained final authority over the child’s extracurricular activities.

       Cf. Terry v. Garibaldi, 274 Ga. App. 405, 408 (2) (618 SE2d 6) (2005) (citing Bisno v. Bisno, 238 Ga. 328 (232 SE2d 921) (1977) and Daniel v. Daniel, 250 Ga. App. 482 (552 SE2d 479) (2001)).

       It was proper for the trial court to consider a variety of factors impacting the child’s well-being. As the Supreme Court of Georgia discussed in Bodne v. Bodne, 277 Ga. 445, 447 (588 SE2d 728) (2003), it is appropriate for the trial court to consider “the myriad factors that had an impact on the [child] as established by the evidence adduced before it.”

       Importantly, for the purposes of our analysis, this confusion was the direct result of the mother acting in direct contravention of the divorce decree.

       See Bodne, 277 Ga. at 446 (discussing testimony received by the trial court regarding irreparable harm that would be suffered by the child were the current custody arrangement to continue).

       See Kuehn v. Key, 325 Ga. App. 512, 517 (1) (754 SE2d 103) (2014) and OCGA § 19-9-3 (a) (3) (O) (permitting the judge to consider recommendations of a guardian ad litem in determining the child’s best interests).

       See OCGA § 19-9-3 (a) (3) (N) (permitting the court to consider the “willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child”).

       See Bodne, 277 Ga. at 446-447 (discussing how actions by one parent which negatively impact important aspects of the parties’ divorce agreement, i.e., the goal of continuing the parents’ equal involvement in the child’s life, are factors the trial court may consider in determining that a change in custody is in the child’s best interests).

       See Viskup, 291 Ga. at 105 (2) (discussing trial court’s consideration of evidence that the custodial parent had been held in contempt for violation of the court’s visitation orders and had taken steps to undermine the other parent by sending misleading letters to government agencies).

       OCGA § 19-9-3 (a) (3).


author: DOYLE, Chief Judge.

text:
    A16A2096.
    RENTZ v. PRINCE OF ALBANY, INC.
    (797 SE2d 254)
   DOYLE, Chief Judge.

In this premises liability suit filed by Cecilia Rentz (“Rentz”) against car dealer Prince of Albany, Inc., Rentz appeals from the grant of summary judgment to Prince of Albany She contends that the trial court erred by concluding that (1) the hazard she tripped on was an open and obvious static condition, (2) she had three times successfully negotiated the hazard prior to her fall, and (3) the distraction doctrine does not preclude summary judgment. For the reasons that follow, we affirm.

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

So viewed, the record shows that Rentz and her companion, Gerald “Pete” Rentz, visited Prince of Albany to shop for a pickup truck to haul their new fifth-wheel camper. As they narrowed their choices, they were invited into the building by a salesperson, and they walked across the sales floor to meet with the salesperson in an office. The sales floor was occupied by display vehicles and had offices along one side and a detached manager’s cubicle toward the middle of the floor. Also on the floor near the sales and finance offices was a “corn hole” game placed by Prince of Albany so that customers and their families could pass the time during the often tedious process of purchasing a vehicle. The game consisted of two plywood ramps measuring approximately four feet long by one foot wide; each ramp was eleven and one-half inches high at its highest point and four inches high at its lowest point. Participants play the game by taking turns trying to toss beanbags into a hole in each ramp.

The Rentzes briefly spoke to the salesperson and then walked across the sales floor to exit the building and look at a truck outside and discuss their decision. After a short time, the couple went back inside the dealership, walked back across the sales floor into an office, and continued their conversation with the salesperson. As that conversation wound up, the couple rose to exit the office, and the salesperson asked a question of Rentz just as she reached the threshold of the office door. She stopped and turned back toward the salesperson to answer the question. She then turned back around to walk out of the office, took a step, tripped on the corn hole game, and fell on top of it, causing injuries including a torn meniscus in her knee.

Rentz sued Prince of Albany for negligently maintaining the corn hole game on the sales floor and for failing to warn her of its presence. Following discovery, Prince of Albany moved for summary judgment, which motion the trial court granted after a hearing. In so ruling, the court held that the corn hole game was an unobstructed static condition in plain view, and that Rentz had successfully walked past the game three times before she tripped on it, which precluded recovery.

1. Rentz contends that the trial court erred by ruling that the corn hole game was an open and obvious static condition.

We begin with a recitation of the basic law on premises liability

An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for any invitees. However, an owner or occupier of land is not an insurer of an invitee’s safety Rather, an invitee seeking to recover for slip and fall injuries must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.
[T]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.

With respect to the particular hazard in this case, the trial court ruled that it was a static condition. “A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it. If nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.”

Rentz argues that the corn hole game fails to meet this definition because it was moveable, as opposed to, for example, a curb or a pothole in a walkway But this Court has not limited the term so narrowly For example, in Rowland u. Murphy Oil USA, this Court held that a metal advertising sign standing at the end of a gas pump island was a static condition, despite the fact that the sign was portable and could be moved. The Court noted that there was no evidence that the signs were moved or that there was anything obstructing visitors’ view of the signs.

Similarly, in this case, the evidence is undisputed that the corn hole game remained in an open area of the floor where it was placed by Prince of Albany until the day of Rentz’s injury The game consisted of a four-foot-long wooden ramp readily visible from any angle. The game was in plain view with nothing obstructing patrons’ view of it, and Rentz deposed that if she had looked down, she would have seen the game. Under these circumstances, the trial court did not err by ruling that the corn hole game was an open and obvious static defect.

2. Rentz next argues that the trial court erred by ruling that she was barred from recovery as a matter of law because she successfully negotiated the game three times before she tripped on it. We disagree.

“If an alleged dangerous condition is a static defect, a person is presumed to have knowledge of it when that person has successfully negotiated the alleged dangerous condition on a previous occasion.”

If nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks. Consequently, as applied to the grant of summary judgment in this case, the issue is whether the factual evidence is plain, palpable, and undisputed that nothing obstructed [Rentz’s] ability to see the [corn hole game] and thus the defect was or should have been visible to her.

The record contains undisputed evidence that before Rentz tripped on the corn hole game, she had already walked past it three times that day — once on her way into the sales office, once on her way out, and once on her way back into the sales office for the final time. In her own deposition, Rentz testified that although she did not see the game, she must have walked past it each time she entered or left the office, and Pete deposed that they would have passed by the game three times before Rentz tripped on the game. There was no evidence to contradict these accounts or show that the game had been moved during their visit. Based on this record, the trial court did not err by concluding that Rentz was legally presumed to have knowledge of the readily discernible hazard presented by the game. Rentz cannot overcome this presumption by arguing that she never saw the game because, as noted above, “[i]f nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.” The evidence of the open presence of the game and Rentz’s three journeys past it is plain, palpable, and undisputed; accordingly, this enumeration is without merit.

3. Finally, Rentz contends that summary judgment is precluded by the distraction doctrine. She points to the fact that as she walked out of the sales office, the salesperson asked her a question, so she momentarily stopped and turned around to answer it. Upon turning back around to exit the office, she took a step and tripped on the corn hole game.

Under the distraction doctrine,

one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted. Application of the doctrine has the effect of excusing an invitee from exercising the otherwise required degree of care because of the circumstances created by the purported distraction.

Nevertheless,

a claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.

Here, Rentz deposed that “I turned around ... to answer [the salesperson], and then I turned back around and took a step, that’s when I fell.... I wasn’t distracted. I mean, I took a step[,] and my foot caught the game up high, and that’s when I fell.” Thus, after Rentz turned back around to exit the office, nothing distracted her or prevented her from seeing the game board in her path. Further, it is undisputed that nothing distracted Rentz or obscured her view of the game board during her three journeys past it minutes prior to tripping on it, and the board was not a small, hard-to-notice defect that required extreme care to observe. Based on the record before us, we discern no error in the grant of summary judgment to Prince of Albany.

Decided February 24, 2017.

Gardner, Willis, Sweat & Handelman, Amanda K. Goff, for appellant.

Hall Booth Smith, W. Brian Mallow, Michael S. Meyer von Bremen, for appellee.

Judgment affirmed.

Reese and Bethel, JJ., concur.

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

       Rentz and Pete were formerly married and had reunited after their divorce.

       (Citations and punctuation omitted.) Sherrod v. Diple Play Cafe, 285 Ga. App. 689 (647 SE2d 376) (2007), citing OCGA § 51-3-1 and quoting . Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       (Punctuation omitted.) Landings Assn. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012).

       (Punctuation omitted.) LeCroy v. Bragg, 319 Ga. App. 884, 886 (1) (739 SE2d 1) (2013).

       280 Ga. App. 530 (634 SE2d 477) (2006).

       See id. at 532.

       See id.

       See id. at 533. See also James v. Sirmans, 299 Ga. App. 262, 263 (683 SE2d 354) (2009) (affirming summary judgment because the plaintiff acknowledged that a sidewalk crack that caused her to fall “was pretty obvious to anybody walking in the door”); Sherrod, 285 Ga. App. at 691 (affirming grant of summary judgment because plaintiff admitted that a static defect “was visible if she had looked at it”).

       (Punctuation omitted.) Nemeth v. RREEF America, 283 Ga. App. 795, 797 (1) (643 SE2d 283) (2007).

       (Punctuation omitted.) LeCroy, 319 Ga. App. at 886 (1).

       Both Rentz and Pete speculate that because they did not notice the game, it must have been moved there while they briefly talked with the salesperson in the office. But neither Rentz nor Pete recalled seeing or hearing anything indicating that the game was moved, and there was direct testimony from Prince of Albany that the game was never moved. Based on this record, speculation by Rentz and Pete as to any movement of the game is insufficient to meet their burden on summary judgment. “Guesses or speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” (Punctuation omitted.) Season All Flower Shop v. Borle, 323 Ga. App. 529, 534 (1) (746 SE2d 634) (2013).

        See Nemeth, 283 Ga. App. at 797 (1).

        LeCroy, 319 Ga. App. at 886 (1). See also Delk v. QuikTrip Corp., 258 Ga. App. 140, 141 (572 SE2d 676) (2002) (affirming grant of summary judgment to defendant because plaintiff testified that the raised storage tank caps in the pavement were obvious, and she had visited the gas station multiple times before she tripped on a cap).

       (Citations and punctuation omitted.) Robinson, 268 Ga. at 744 (2) (a).

       (Punctuation omitted.) Norwich v. Shrimp Factory, 332 Ga. App. 159, 161-162 (770 SE2d 357) (2015). See also Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998) (same).

       (Emphasis supplied.)

       See Delk, 258 Ga. App. at 142 (evidence of distraction did not preclude summary judgment because plaintiff had traversed hazard before she tripped on it).

       See Bartlett v. McDonough Bedding Co., 313 Ga. App. 657, 660 (722 SE2d 380) (2012) (“the sole distraction [plaintiff] asserts, looking at merchandise, cannot be accepted under the distraction theory because that was the very activity that brought him to [the premises]”). Cf. Long John Silver’s v. Coleman, 223 Ga. App. 864, 865-866 (479 SE2d 141) (1996) (“Any distraction was self-induced by [the plaintiff’s] decision to read the sign while walking rather than stop to read it, preventing recovery.”); Huntley Jiffy Stores v. Grigsby, 208 Ga. App. 634, 635-636 (431 SE2d 435) (1993) (rejecting distraction theory because “[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom,” and noting that plaintiff “did not notice [the hazard] previously because she was paying no attention to it”); Piedmont Hosp. v. Hall, 198 Ga. App. 138, 140 (1) (401 SE2d 51) (1990) (distraction doctrine did not preclude summary judgment in light of plaintiff’s prior experience in the room where she fell), comparing Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2) (349 SE2d 241) (1986) (holding that summary judgment was improper because there was no evidence that the plaintiff had negotiated the alleged dangerous condition before she was injured). Compare Pinder v. H & H Food Svcs., 326 Ga. App. 493, 502, n. 9 (756 SE2d 721) (2014) (physical precedent only) (question of fact remained because even if the plaintiff had traversed the hazard, an “optical illusion . . . made it appear that the place she stepped was flush with the sidewalk”).


author: McMlLLIAN, Judge.

text:
    A16A1669.
    ALL AMERICAN QUALITY FOODS, INC. v. SMITH.
    (797 SE2d 259)
   McMlLLIAN, Judge.

We granted the application for interlocutory appeal filed by All American Quality Foods, Inc., d/b/a Food Depot (“Food Depot”), from the trial court’s denial of its motion for summary judgment on claims filed by Thera Smith in connection with a fall she suffered in a Food Depot store in Covington (the “Store”). Food Depot asserts on appeal that the trial court erred in finding that genuine issues of material fact exist on the issue of its actual or constructive knowledge of the substance that caused Smith to slip and that it was foreseeable that the substance would be spilled on the floor.

Our review of the trial court’s summary judgment order is de novo and “we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences.” (Citation omitted.) Johnson v. Omondi, 294 Ga. 74, 75 (751 SE2d 288) (2013). So viewed, the evidence shows that on October 16, 2012, Smith went to the Store to purchase milk. She passed the cash register and turned to go down an aisle, when she slipped and fell to the floor, hitting her knee. Although she did not see anything on the floor before her fall, afterward she noticed a pink liquid spread out on the floor where she had slipped. Two Store employees came to help her, including a man she believed to be the Store manager, who said that he had seen some children running around with open containers.

The evidence showed that on the day of Smith’s fall, Store employees had conducted a regular inspection of the Store’s premises during the period from 3:53 to 4:05 p.m. The Store’s security video shows that subsequently, at 4:28 p.m., two children were walking in the aisle where Smith fell. They each had drink cans when they bumped into each other, and one of the children appears to glance at the floor at about 4:28:06 p.m. At 4:29:45 p.m., the children reappear in the aisle, this time with an adult, drinking from the containers. A few minutes later, Smith and her son enter the same aisle, where she slipped and fell at 4:35:06 p.m. This appeal followed the trial court’s denial of Food Depot’s motion for summary judgment.

1. The standard for owners and occupiers of land to keep their premises safe is well established. Under OCGA § 51-3-1,

[wjhere an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

However, “[tjhe owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters,” which “includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

It is axiomatic that “proof of a fall, without more, does not give rise to liability on the part of a proprietor [.] ” (Citation omitted.) Ingles Markets, Inc. v. Carroll, 329 Ga. App. 365, 367 (765 SE2d 45) (2014). Rather, to establish liability for a breach of the duty set forth in OCGA § 51-3-1, a plaintiff must show that the premises owner had superior knowledge of a hazard on the premises, which hazard caused the plaintiff’s injury. Robinson, 268 Ga. at 740 (1). The owner’s knowledge of the hazard can be actual or constructive. Carroll, 329 Ga. App. at 367.

Smith does not contend on appeal that Food Depot had actual knowledge of the pink liquid’s presence on the floor. Rather, she asserts that Food Depot had constructive knowledge of the spill. A plaintiff may demonstrate a proprietor’s constructive knowledge of a hazard by showing:

(a) . . . evidence that the hazardous condition lasted so long that it would have been discovered and removed if the proprietor had exercised reasonable care in inspecting the premises, or (b) . . . evidence that an employee of the defendant was in the immediate vicinity of the hazardous condition and could have easily seen and corrected the hazard.

Barbour-Amir v. Comcast of Georgia/Virginia, Inc., 332 Ga. App. 279, 283 (2) (772 SE2d 231) (2015).

(a) Under the first method of proving constructive knowledge, Smith contends that Food Depot failed to establish that it had a reasonable inspection policy in place, thus relieving her from any duty of showing how long the substance had been in place prior to her fall. See, e.g., Sanderson Farms, Inc. v. Atkins, 310 Ga. App. 423, 427 (2) (713 SE2d 483) (2011). However, we fail to see how the inspection policy is relevant to Smith’s claim because in this somewhat unusual case, the video evidence establishes how long the substance was on the floor before Smith fell. The spill occurred somewhere between 4:28 to 4:29 p.m. when the children with the open container were in the area of her fall, and Smith fell six to seven minutes later at approximately 4:35 p.m.

In order for a proprietor to be liable, the hazardous condition must have been in place “on the premises for a sufficient period of time such that [he or she] should have discovered and removed the hazard.” (Citation and punctuation omitted.) Witt v. Ben Carter Properties, LLC, 303 Ga. App. 107, 110 (692 SE2d 749) (2010). See also Berniv. Cousins Properties, Inc., 316 Ga. App. 502, 505 (729 SE2d 617) (2012). We find that under the circumstances, the limited period of time that the substance was on the floor is insufficient as a matter of law to hold that Food Depot should have discovered and removed the liquid prior to Smith’s fall. See Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 622 (272 SE2d327) (1980) (A “proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous.”); Hagan v. Goody’s Family Clothing, Inc., 227 Ga. App. 585, 587 (490 SE2d 107) (1997) (summary judgment appropriate where only evidence showed that hazard had arisen less than two minutes before plaintiff’s fall). Cf. Pirkle v. QuikTrip Corp., 325 Ga. App. 597, 602 (2) (b) (ii) (754 SE2d 387) (2014) (summary judgment granted where only eight minutes transpired between the fall and inspection that showed no liquid on floor); Markham v. Schuster’s Enterprises, Inc., 268 Ga. App. 313, 314 (601 SE2d 712) (2004) (plaintiff slipped and fell only five to ten minutes after manager inspected the area). Therefore, Smith failed to establish that Food Depot had constructive knowledge of the hazard under the first method.

(b) In the alternative, Smith asserts that the Store manager should have anticipated that the liquid would be spilled on the floor based on his sighting of children with open containers and that he should have taken reasonable precautions to prevent any ensuing hazard.

Although a proprietor has a duty to protect its invitees “from the misconduct of other persons who come upon the premises,” “the duty of interference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger.” (Citations and punctuation omitted.) Carroll, 329 Ga. App. at 367. Here, even though the manager had seen two children with an open container, no evidence exists as to when that sighting occurred or whether he even saw the same two children who appear in the video. Although Smith stated that the manager had seen children “running” around the Store with open containers, the video showed that when the children were in the area of her fall, they were walking at a casual pace and not running. Thus, it is unclear whether the manager saw children with open containers before or after the spill or even after Smith fell.

Moreover, the record contains no evidence that the Store had previously experienced problems with the particular children in the video, that the Store had a policy for dealing with children or other patrons with open containers, or that the manager violated any Store policy in failing to take action. The evidence also shows that, at least part of the time, the two children were accompanied by an adult who was shopping in the Store. Thus, Smith has failed to demonstrate that the manager could have foreseen the spill that resulted in her accident or taken action in time to prevent her fall. See McDonald v. West Point Food Mart, Inc., 332 Ga. App. 753, 756 (774 SE2d 774) (2015) (physical precedent only) (proprietor had no duty to ensure the safety of its customers from the remote possibility of any injury without proof that it had occurred before); Pickering Corp. v. Goodwin, 243 Ga. App. 831, 833 (534 SE2d 518) (2000) (summary judgment appropriate where plaintiff failed to introduce evidence of facts that would have put a defendant on notice of the potential hazard). Cf. Medley v. Home Depot, Inc., 252 Ga. App. 398 (555 SE2d 736) (2001) (issues of fact precluded summary judgment in favor of store where certain teenagers visited store regularly causing spills, the store was aware the same teenagers were playing in the store on the day of the fall, and the store policy was to ask such visitors to leave but employees failed to follow policy).

2. Smith also argues under the second method of proving constructive knowledge that the evidence showed that Store employees were in the immediate vicinity of her accident. In support of this argument, she asserts that she fell “in the front of the aisle located at the front of the store near the cashiers” who were serving other customers at the time and notes the manager’s statement that he had seen children running through the Store with open containers.

However, “showing that an employee was merely working in the immediate area of the alleged hazard is not enough; the employee must have been in a position to have easily seen the hazard and intervened to correct it before the accident occurred.” Barbour-Amir, 332 Ga. App. at 284 (2) (b). See also Mucyo v. Publix Super Markets, 301 Ga. App. 599, 601 (1) (688 SE2d 372) (2009). Smith has failed to present evidence that the cashiers could have detected a spilled liquid in an aisle from their work stations or evidence showing the relative positions of the cashiers to the location of her fall. And as noted above, the record contains no evidence as to when the manager saw the children, whether the children he saw were the same children seen in the video, or whether he was in the area where Smith fell when he saw the children.

Decided February 27, 2017.

Meadows & Made, Rod G. Meadows, Stephen P. Morris, for appellant.

Reid Ramirez Law Group, LeKeyia D. Reid, Kristal S. Ramirez, for appellee.

Accordingly, we find that this is one of the limited number of cases in which it is plain, palpable and undisputed that Smith failed to establish superior knowledge by Food Depot of the hazard in this case, and we therefore reverse the trial court’s order denying summary judgment.

Judgment reversed.

Miller, P. J., and McFadden, P. J., concur.

       Smith argues on appeal that the affidavit submitted by Food Depot to establish the Store’s inspection policy and the timing of the inspections on the day of her fall was deficient because the affiant lacked personal knowledge of the Store’s inspection performance that day. However, Smith failed to raise this argument below and, in fact, cites some of the very evidence she now seeks to undercut in her briefs to the trial court and on appeal. “Objections to affidavits such as an objection to the affiants’ lacking personal knowledge will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.” (Citation and punctuation omitted.) Formaro v. SunTrust Bank, 306 Ga. App. 398, 399-400 (1) (702 SE2d 443) (2010). Accordingly, we do not address this objection.

       Food Depot argues that the trial court erred in finding that the hazard was foreseeable and in applying the foreseeability analysis from Medley v. Home Depot, Inc., 252 Ga. App. 398 (555 SE2d 736) (2001), to the facts of this case. We note that the trial court’s order denied Food Depot’s motion for summary judgment without explanation and without citing the Medley opinion; however, the parties argued the case at the hearing on the motion, and thus it is possible that the trial court relied on Medley in denying the motion.

       Smith testified that she “[w]ent past the cash register and was going down an aisle” and “turning to go down the aisle” when she fell.

       See Robinson, 268 Ga. at 739-40 (1).