author: Ellington, Chief Judge.

text:
    A11A0615.
    REDFORD v. THE STATE.
    (710 SE2d 197)
   Ellington, Chief Judge.

A Douglas County jury found Julian Redford guilty beyond a reasonable doubt of acquiring control of money through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a), based on multiple predicate acts of forgery in the first degree. Following the denial of his motion for a new trial, Redford appeals, contending the trial court erred in failing to instruct the jury, as he requested, on the offense of forgery in the first degree as a lesser-included offense of racketeering. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. From November 2002 to June 2005, Redford took checks issued by insurance companies and made payable to his employer, Wren’s Body Shop, forged the checks with the name of Phil Wren, who was authorized to endorse checks for the company, cashed the checks at a nearby check-cashing business, and kept the money for himself. The State offered evidence of 42 such checks, in amounts ranging from $746.26 to $5,165.33 and totaling over $100,000. During the 32-month period, he cashed as few as zero and as many as four checks during a single month. In a single count indictment, the State charged Redford with acquiring control of money through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a), listing the forgeries as the predicate acts.

Redford requested that the jury be instructed:

If you do not believe beyond a reasonable doubt that the defendant is guilty of Violation of Georgia RICO Act, but do believe beyond a reasonable doubt that the defendant is guilty of Forgery in the First Degree, then you would be authorized to find the defendant guilty of Forgery in the First Degree[.]

The trial court denied the request.

Redford contends that, because forgery in the first degree was the only predicate offense for the charge of racketeering, proof of the racketeering charge would necessarily establish every element of forgery in the first degree and, therefore, forgery was a lesser-included offense of racketeering. He contends that the jury might have found that he committed acts of forgery but found that each forgery was a separate incident and, though repeated, not part of a larger scheme or pattern of interrelated acts, as required to prove racketeering. Redford contends that he was harmed by the trial court’s failure to give the requested charge, in that he was sentenced to twenty years, the maximum sentence for racketeering, because he would have faced a maximum sentence of only ten years imprisonment if the jury had found him guilty of forgery in the first degree as a lesser-included offense of the single count of racketeering.

Under Georgia law, the finder of fact in a criminal case may be authorized, depending on the evidence, to convict the defendant of a lesser-included offense, instead of the greater, charged offense, even though that lesser-included offense is not explicitly presented in the indictment or accusation. See OCGA § 16-1-6 (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation.”); Bennett v. State, 244 Ga. App. 149, 151 (2) (534 SE2d 881) (2000); Fulton v. State, 232 Ga. App. 898, 899 (1) (503 SE2d 54) (1998). A crime is included in another crime, inter alia, when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the [other] crime[.]” OCGA § 16-1-6 (l).

It is well established that, when a defendant is charged with one offense, and when there is some evidence, no matter how slight, presented to the jury that shows that the defendant committed a lesser-included offense, then the court must, upon timely written request, instruct the jury on the lesser-included offense. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). On the other hand, where the State’s evidence establishes all of the elements of the charged offense, and where there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Id.

Under the Georgia RICO Act, “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” OCGA § 16-14-4 (a). The Act provides that “[Racketeering activity” means, inter alia, “to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the following laws of this state,” and then lists 40 different criminal offenses under Georgia law. OCGA § 16-14-3 (9) (A). One of those offenses is forgery in the first degree as defined in OCGA § 16-9-1. OCGA § 16-14-3 (9) (A) (viii). A “[pjattern of racketeering activity” is defined as, inter alia,

[ejngaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity[.]

OCGA § 16-14-3 (8) (A). Thus, as Redford contends, the State could not carry its burden of proving that he was guilty of racketeering as charged without also proving that he committed at least two acts that satisfied all of the elements of the offense of forgery in the first degree plus the additional element that the acts of forgery were part of a pattern of interrelated acts and not isolated incidents. Raines v. State, 219 Ga. App. 893, 894 (1) (467 SE2d 217) (1996). In other words, the offense of forgery in the first degree was established by proof of less than all of the facts that established the offense of racketeering.

It does not necessarily follow, however, that Redford was entitled to a jury instruction on forgery in the first degree as a lesser-included offense of racketeering. Racketeering is a special type of compound offense, not simply a more serious grade of forgery, robbery, homicide, or any of the other offenses specified in the Act as predicate offenses. In this case, the district attorney opted to obtain an indictment only for racketeering. Even though that charge of racketeering was predicated on conduct which is “chargeable by indictment” under OCGA § 16-9-1, “relating to forgery in the first degree,” Redford was not charged with forgery under OCGA § 16-9-1, but only with acquiring control of money through a pattern of racketeering activity under OCGA § 16-14-4 (a). The jury was properly instructed that it was authorized to convict Redford only if the State had proved beyond a reasonable doubt that he acquired control of money through at least two of the specified separate acts of forgery and that the forgeries he committed were part of a pattern of interrelated racketeering activity, as defined in the RICO Act. Dorsey v. State, 279 Ga. 534, 540 (2) (a) (615 SE2d 512) (2005). In the event the jury had found that Redford committed some or all of the specified forgeries, but did not find beyond a reasonable doubt that those forgeries constituted a pattern of interrelated racketeering activity, as defined in the Act, the jury would have been required to acquit Redford; it would not have been authorized to convict him, instead, of forgery. Raines v. State, 219 Ga. App. at 894 (1). Based on all of the foregoing, we conclude that Redford was not entitled to a jury instruction on forgery in the first degree as a lesser-included offense of racketeering. Consequently, the trial court did not err in failing to give Redford’s requested charge.

Decided April 1, 2011.

Garland, Samuel & Loeb, Donald F. Samuel, Amanda R. C. Palmer, for appellant.

David McDade, District Attorney, James E. Barker, James A. Dooley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       See OCGA § 16-14-1 et seq. (the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO)).

        Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       For purposes of appeal, Redford concedes that the evidence established the forgeries.

       OCGA § 16-14-5 (a).

       OCGA § 16-9-1 (b).

       For example, where there is evidence that a defendant, who is accused of burglary, entered the dwelling house of another without authority, and where there is evidence that the defendant did so for some unlawful purpose but not with the intent to commit a felony or theft therein, the jury would be authorized to convict the defendant of criminal trespass, and, therefore, the defendant is entitled upon written request to a jury instruction on criminal trespass as a lesser-included offense of burglary. Waldrop v. State, 300 Ga. App. 281, 284-286 (3) (684 SE2d 417) (2009); Hiley v. State, 245 Ga. App. 900, 901 (539 SE2d 530) (2000); see OCGA §§ 16-7-1 (a) (“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters . . . the dwelling house of another!.]”); 16-7-21 (b) (1) (“A person commits the offense of criminal trespass when he or she knowingly and without authority. . . [ejnters upon the land or premises of another person ... for an unlawful purposef.]”); see also Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006) (Where the same act or transaction constitutes a violation of two distinct statutory provisions, Georgia courts apply the “required evidence” test to determine whether one crime is included in the other under OCGA § 16-1-6 (1). Under the required evidence test, neither offense is included in the other if “each provision requires proof of a fact which the other does not.”) (punctuation and footnote omitted); Walker v. State, 279 Ga. App. 749, 751 (3) (a) (632 SE2d 482) (2006) (If an indictment alleges child molestation, and if the evidence presented at trial is sufficient to show an intentional touching of the victim’s intimate parts, but not with the intent to arouse or satisfy the sexual desires of either the victim or the accused, as required to prove child molestation under OCGA § 16-6-4 (a) (1), a jury instruction on sexual battery under OCGA § 16-6-22.1 (b), as a lesser-included offense, would be required.); Fulton v. State, 232 Ga. App. at 899 (1) (Where the indictment alleged aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2), and where the evidence was sufficient to show that the defendant struck the victim on the face with a pistol, or with his fist while holding a pistol, but where there was evidence that the defendant did so without the intent to use the pistol as a deadly weapon and in a manner such that the pistol was not a deadly weapon, the triad court properly instructed the jury on simple battery as a lesser-included offense.).

         See also Miller v. State, 259 Ga. App. 244, 245 (1) (576 SE2d 631) (2003) (accord); see generally, Jack Goger, Daniel’s Georgia Criminal Trial Practice, § 24-5 (2010-2011 ed.).

       See also OCGA § 16-14-3 (9) (B) (also defining as racketeering activity several crimes that are chargeable under the law of the United States or the several states).

       A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.
      OCGA § 16-9-1 (a).

       We note that the jury would have been authorized to find Redford guilty of racketeering even if it found that he had committed fewer than all of the acts of forgery specified in the indictment, so long as it found beyond a reasonable doubt that he committed at least two of the specified predicate acts. Dorsey v. State, 279 Ga. 534, 540 (2) (a) (615 SE2d 512) (2005).

       See Drewry v. State, 201 Ga. App. 674, 675-676 (3) (411 SE2d 898) (1991) (An indictment that charged the defendants with violating the Georgia RICO Act and also charged them in separate counts with violating those statutory provisions which were specified as the predicate acts for the racketeering offense was not subject to attack by demurrer as duplicitous, although, in the event the jury found the defendants guilty of both the racketeering and the predicate acts, the trial court would not be authorized to impose separate punishment for the racketeering and for the predicate acts.); Bethune v. State, 198 Ga. App. 490, 491 (1) (402 SE2d 276) (1991) (Where the defendants were formerly prosecuted and sentenced for certain criminal offenses, the State could not later prosecute the defendants for racketeering predicated on that same criminal conduct.); Martin v. State, 189 Ga. App. 483, 494-497 (10) (376 SE2d 888) (1988) (physical precedent only) (Where a jury found the defendants guilty of violating the Georgia RICO Act and also of violating those statutory provisions which were specified as the predicate acts for the racketeering offense, which were charged in separate counts of the indictment, the trial court erred in sentencing the defendants on both the racketeering and the predicate acts.). We note, in contrast to our construction of the Georgia RICO Act, federal courts have found that a defendant may be successively prosecuted for violations of the federal RICO Act and for violations of the predicate offenses and may be subjected to multiple punishments for the same conduct under RICO and other statutes. See, e.g., United States v. Esposito, 912 F2d 60, 64 (II) (3d Cir. 1990); United States v. Hawkins, 658 F2d 279, 287 (I) (5th Cir. 1981); see generally Jimmy Gurule, Complex Criminal Litigation, § 14-2c (“Single Course of Conduct Versus Multilayered Conduct”) (2002). This result flowed from courts’ finding that the Congress of the United States specifically intended in enacting the federal RICO statute to permit cumulative sentences for substantive RICO offenses and the underlying predicate offenses. United States v. Esposito, 912 F2d at 64 (II); United States v. Hawkins, 658 F2d at 287 (I).

       See Chancey v. State, 256 Ga. 415, 416-419 (349 SE2d 717) (1986); Michael R Kenny et ah, “A Comprehensive Analysis of Georgia RICO,” 9 Ga. St. U. L. Rev. 537 et seq. (April 1993); 8 RICO State by State: A Guide to Litigation Under the State Racketeering Statutes 279 (Georgia) (American Bar Association, 1998); Whalen v. United States, 445 U. S. 684, 708-709 (100 SC 1432, 63 LE2d 715) (1980) (Rehnquist, J., dissenting) (distinguishing between “statutes that define greater and lesser included offenses in the traditional sense,” where proof of the greater offense necessarily entails proof of the lesser, from statutes, such as the federal RICO statute, that define “compound” and “predicate” offenses) (punctuation omitted).

       OCGA § 16-14-3 (9) (A) (viii).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge. MCFADDEN, Judge,

license: Public Domain

text:
    A10A1701.
    DANIELY v. THE STATE.
    (709 SE2d 274)
   PHIPPS, Presiding Judge.

After a jury trial, Larry Donnell Daniely was convicted of voluntary manslaughter (as a lesser offense to felony murder) and possession of a knife during the commission of a felony. He was acquitted of other charges, including aggravated assault. Daniely argues on appeal that there was insufficient evidence to support his conviction for possession of a knife during the commission of a felony. He also argues that the trial court erred in certain evidentiary rulings. For the following reasons, we affirm.

The evidence showed that on April 1, 2008, Daniely got into an argument with his former girlfriend, Stephanie Martinez, at a hotel where Martinez had been staying. Some time later, Martinez and a friend encountered Daniely in a breezeway of the hotel. Martinez and Daniely again began to argue. Michael Black (who was the boyfriend of Martinez’s friend) approached the group, and he and Daniely began to fight. Two witnesses to the fight saw a knife in Daniely’s hand. During the fight, Black was stabbed and he died shortly thereafter.

1. Daniely was convicted of possession of a knife during the commission of a felony, in violation of OCGA § 16-11-106 (b) (1), which provides, in pertinent part,

[a]ny person who shall have on or within arm’s reach of his or her person ... a knife having a blade of three or more inches in length during the commission of, or the attempt to commit: . . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony[.]

The indictment charged Daniely with possessing the knife during the commission of the crime of aggravated assault. Daniely, however, was acquitted of aggravated assault. For that reason, he argues that the evidence was insufficient to support the possession of a knife conviction.

Daniely’s argument is unfounded. “[T]he Supreme Court of Georgia has abolished the rule against inconsistent verdicts because an appellate court does not know the reasons for a jury’s verdict.” Accordingly,

(a)ppellate courts need not invalidate a conviction on a compound offense (such as the offense of possession of a [knife] during the commission of a crime in the present case) which is logically inconsistent with an acquittal on the predicate or underlying offense (in this case, [aggravated assault]) because the appellate court cannot know and should not speculate why a jury acquitted on the predicate offense and convicted on the compound offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity, but as a matter of prudence, the conviction on the compound offense should be upheld so long as the evidence will support it.

Thus, notwithstanding Daniely’s acquittal of aggravated assault, we consider whether the evidence in this case, viewed in the light most favorable to the verdict, was sufficient for any rational trier of fact to conclude that Daniely was guilty beyond a reasonable doubt of the charged offense of possession of a knife during the commission of the felony of aggravated assault. So viewed, the evidence showed that Daniely wielded a knife while fighting with Black, and that during the fight Black sustained a stab wound that was approximately five inches deep. This evidence was sufficient for a rational trier of fact to conclude that Daniely had possessed a knife with a blade at least three inches long during the commission of the offense of aggravated assault, in violation of OCGA § 16-11-106 (b) (1). We find no basis for reversal on this ground.

2. Daniely argues that the court erred in allowing the state to introduce, through a police investigator, evidence of a statement Martinez made to the officer shortly after the incident, that Martinez had seen “something silver” in Daniely’s hand prior to the stabbing. The statement contradicted Martinez’s trial testimony that she had seen nothing in Daniely’s hand.

The prior inconsistent statement of a witness who is present and available for cross-examination may be admitted as substantive evidence or as impeachment evidence if the time, place, person, and circumstances attending the former statement are called to [the witness’s] mind with as much certainty as possible.

The purpose of laying such a foundation is to give the witness the opportunity to explain or deny the prior inconsistent statement. If such a foundation is not sufficiently established, it is error for the trial court to admit a prior inconsistent statement.

Daniely argues that Martinez was not given the opportunity to explain or deny the prior statement because she testified before the issue of the statement was raised at trial and was not confronted with it during her testimony. The record supports this contention — the prior statement was not mentioned during Martinez’s testimony and she was not asked any questions concerning the time, place, person, or circumstances attending it. Thus, Martinez was never questioned with the specificity necessary to establish the foundation for the admission of the statement. Without such a foundation, the trial court erred in admitting evidence of Martinez’s prior inconsistent statement.

This error, however, does not require reversal. In light of the overwhelming competent evidence that Black was stabbed during his fight with Daniely, it is highly probable that the error in allowing testimony that Martinez had stated she had seen “something silver” in Daniely’s hand did not contribute to the jury’s verdict.

3. In support of a claim that he acted in self-defense during the fight with Black, Daniely sought to introduce photographs depicting Black with tattoos indicating gang affiliation. The trial court excluded the photographs as impermissible character evidence. Daniely contends that this was error.

Evidence of specific acts of violence by a victim against third persons is admissible where the defendant claims justification, provides proper notice, and makes a prima facie showing that the victim was the aggressor. Such evidence is admissible to show the victim’s character for violence or tendency to act in accordance with his or her character as it relates to the defendant’s claim for justification.

The burden is on the defendant seeking to introduce the evidence to establish that the victim’s prior acts involved violence. The evidence in this case, however, concerned only Black’s possible gang affiliation. “Mere membership in a gang is not a specific act of violence.” The trial court did not abuse its discretion in excluding the evidence.

Judgment affirmed.

Miller, P. J., concurs. McFadden, J., concurs specially.

MCFADDEN, Judge,

concurring specially.

I concur fully in Divisions 1 and 2 of the majority opinion but in the judgment only as to Division 3. As to Division 3,1 agree that the trial court is due to be upheld in his decision to exclude evidence that the victim bore a tattoo apparently reading, “Crippin’ ain’t easy but it’s fun.” But I do not agree that this ruling can be upheld on the basis that the trial court “did not abuse his discretion in excluding the evidence.” The trial court had no discretion as to that evidence; he was required as a matter of law to exclude it because it does not come within the exception to the general rule against admission of evidence of the victim’s character.

As noted by the majority, it is settled law that, “the general character of the [victim] for turbulence and violence may be shown, where there is evidence tending to establish that at the time of the homicide [the victim] was making an assault, or was attempting to commit violence upon the accused, or was in some way the aggressor.” Smithwick v. State, 199 Ga. 292, 295 (1) (34 SE2d 28) (1945); see also Haynes v. State, 17 Ga. 465 (6) (1855).

The exception set out in Smithwick has evolved. Smithwick was overruled in 1980 “to the extent that [it] might be considered as establishing an exclusionary rule denying the defendant the opportunity to establish by his own sworn testimony a prima facie case for the introduction of evidence of prior difficulties between him and the deceased.” Milton v. State, 245 Ga. 20, 25 (262 SE2d 789) (1980).

In a 1989 special concurrence, then-Justice Weltner urged that another exclusionary rule be overturned: “in the past we have restricted evidence of specific acts of violence to those committed by the victim against the defendant. Yet, logic dictates no such distinction.” Lolley v. State, 259 Ga. 605, 609 (385 SE2d 285) (1989) (Weltner, J., concurring). Justice Weltner’s view was adopted by the Supreme Court in Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991).

Decided February 28, 2011

Reconsideration denied April 5, 2011

Randall S. Estes, for appellant.

Both Milton and the Lolley concurrence quote language from Chief Justice Lumpkin’s opinion in Haynes, supra: “This Court stands pledged by its past history, for the abolition, to the extent of its power, of all exclusionary rules, which shut out facts from the Jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass.” Lolley, supra at 610; Milton, supra at 25.

Subsequently, however, the Supreme Court upheld the exclusion of evidence that a murder victim “was a hitman nicknamed the ‘Enforcer,’ ” holding that such “evidence consists of neither general reputation nor specific acts of violence and, thus, does not come within the exception to the general rule against admission of evidence of the victim’s character.” Quillian v. State, 279 Ga. 698, 699-700 (2) (a) (620 SE2d 376) (2005). And this court has held, citing Kolokouris v. State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999):

Evidence of a defendant’s gang affiliation has been held relevant and admissible to show motive despite the fact that it incidentally places the defendant’s character in evidence. However, on reviewing the question of whether a victim’s gang affiliation is admissible at trial, our Supreme Court has held that although evidence of the victim’s specific acts of violence against third persons when the defendant is claiming justification is admissible, “[m]ere membership in a gang is not a specific act of violence.” Therefore, such evidence is not admissible or relevant.

(Footnotes omitted.) Harris v. State, 298 Ga. App. 708, 710-711 (680 SE2d 693) (2009).

The trial court was therefore required as a matter of law, by the rule set out in Quillian and Harris, to exclude evidence of the victim’s gang membership.

Daniel J. Porter, District Attorney, Jon W. Setzer, Assistant District Attorney, for appellee.

       See OCGA § 16-5-20 (a) (a person commits assault when he either attempts to commit a violent injury to the person of another or commits an act which places another in reasonable apprehension of immediately receiving a violent injury); OCGA § 16-5-21 (a) (2) (a person commits aggravated assault when he assaults with a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury).

        Williams v. State, 270 Ga. App. 424, 426 (2) (606 SE2d 871) (2004) (footnote omitted). See Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986) (abolishing inconsistent verdict rule in criminal cases).

        Williams, supra at 426-427 (2) (punctuation and footnotes omitted); see, e.g., Stephens v. State, 279 Ga. 43, 45 (3) (609 SE2d 344) (2005) (any alleged inconsistency between defendant’s convictions of felony murder and possession of a weapon during a felony and his acquittal of the predicate felony offense cannot be used as an avenue to challenge the convictions because the inconsistent verdict rule has been abolished in Georgia); Kimble v. State, 236 Ga. App. 391, 394-395 (1) (512 SE2d 306) (1999) (overruling earlier authority for the proposition that a defendant’s acquittal on felonies upon which was predicated a charge of possession of a weapon during the commission of a felony vitiated an essential element of the possession charge).

       See State v. Robinson, 275 Ga. App. 117, 118 (619 SE2d 806) (2005) (finding evidence sufficient to affirm conviction of possession of a weapon during the commission of the felony of aggravated assault, despite the defendant’s acquittal for predicate offense); Fields v. State, 263 Ga. App. 11-12 (587 SE2d 171) (2003) (same).

       See OCGA § 16-5-21 (a) (2).

       See Robinson, supra; Fields, supra.

        Edmond v. State, 283 Ga. 507, 510 (6) (661 SE2d 520) (2008) (citations and punctuation omitted); see OCGA § 24-9-83.

        Edmond, supra; Meschino v. State, 259 Ga. 611, 614 (2) (b) (385 SE2d 281) (1989).

       See Edmond, supra.

       See id. Compare Meschino, supra at 615 (2) (c) (where witness acknowledged making some kind of statement to a certain person at a particular time and place, the foundation for admitting the prior inconsistent statement was sufficient, even though the state failed to provide witness with additional details regarding the statement).

       See Edmond, supra.

       See id. at 511.

        Barber v. State, 268 Ga. 156, 157 (2) (486 SE2d 353) (1997) (citations omitted); accord Alexander v. State, 285 Ga. 166, 167 (2) (675 SE2d 23) (2009); Traylor v. State, 280 Ga. 400, 401-402 (2) (627 SE2d 594) (2006).

        Bennett v. State, 265 Ga. 38, 40-41 (3) (453 SE2d 458) (1995).

        Kolokouris v. State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999).

       See Blair v. State, 273 Ga. 668, 669 (3) (543 SE2d 685) (2001).


text:
    A11A0307.
    BONUS STORES, INC. et al. v. HENSLEY.
    (710 SE2d 201)
   Ellington, Chief Judge.

In this workers’ compensation action, an administrative law judge (“ALJ”) for the State Board of Workers’ Compensation granted Edward Hensley’s claim for temporary total disability benefits after finding that Hensley had sustained a catastrophic injury arising out of and in the course of his employment. Bonus Stores, Inc. and Specialty Risk Services (collectively, the “employer”) appealed to the Board’s Appellate Division, which reversed the decision of the ALJ after finding that the preponderance of the competent and credible evidence did not support the catastrophic designation. Hensley appealed to the Superior Court of Greene County, which reversed the decision of the Appellate Division, based on its conclusion that the Appellate Division improperly applied a de novo standard of review. We granted the employer’s application for a discretionary appeal, and the employer appeals, contending the superior court misconstrued the law that applied to the Appellate Division’s review of the ALJ’s award and to the superior court’s review of the Appellate Division’s decision. For the reasons explained below, we reverse the decision of the superior court.

The record shows that Hensley injured his back in March 2002 when he was working for the employer as the general manager at Bill’s Dollar Store. The employer accepted the claim as compensable and paid Hensley temporary total disability benefits through November 2003, then partial disability benefits until November 2008. After the employer stopped paying benefits, Hensley requested a catastrophic designation for his injury. At the hearing, the ALJ received into evidence a letter dated November 5, 2003, from Hensley’s family physician, Dr. Wesley Ensley, in which Dr. Ensley opined that, as of that date, Hensley “is totally disabled from physical labor in his current condition. This determination has been attained after evaluating the records at hand and weighing the patient’s subjective assessment of his ability to perform physical work.” The ALJ also received a questionnaire regarding Hensley’s residual functional capacity that Dr. Ensley prepared for the Social Security Administration in September 2004, in which he diagnosed Hensley with neuropathy and chronic persistent pain and stated that Hensley could sit and stand or walk less than two hours each in a work day and would have to take frequent and prolonged unscheduled rest breaks. In addition, the ALJ received a written “vocational assessment” prepared by William Thompson, a vocational specialist, who interviewed Hensley in November 2007 and reviewed his medical records. In his written report, Thompson opined that there is no work available in substantial numbers within the national economy which Hensley is capable of performing.

Among other documents, the employer offered a report prepared by Dr. Lee Kelley, an orthopedist, who examined Hensley in December 2003 and reviewed an MRI of his lower back and concluded that Hensley could return to work with no restrictions. The employer also offered a report prepared by Dr. Thomas Dopson, a spine specialist, who examined Hensley in July 2005 and found no orthopedic, neurologic, radiographic, or other objective clinical basis for any employment restrictions. In addition, the employer offered a report prepared by Dr. Ezequiel Cassinelli, another orthopedist, who evaluated Hensley in May 2009 and concluded that Hensley had reached maximum medical improvement from his March 2002 back injury the following year and that he had no remaining impairment in connection with that injury.

At the hearing, in addition to Hensley’s own testimony, the ALJ heard the testimony of Thompson, the vocational specialist. Thompson testified that, since preparing his written vocational assessment, he had reviewed Dr. Cassinelli’s findings and that, if the ALJ found those findings to be credible, there would be jobs that Hensley could perform.

The ALJ concluded that Hensley’s back injury was catastrophic, finding that it was “of such a nature and severity that it prevents [Hensley] from being able to perform his prior work and any work available in substantial numbers within the national economy for which he is otherwise qualified.” The ALJ’s award shows that the ALJ relied primarily on Dr. Ensley’s November 2003 evaluation, which he reiterated in the September 2004 questionnaire, and on Thompson’s written vocational assessment.

The record shows that, in ruling on the employer’s appeal of the ALJ’s decision to the Appellate Division, the Appellate Division considered the entire record that was before the ALJ. The Appellate Division noted that, although Dr. Ensley and Thompson had con-eluded that Hensley could not perform any jobs in the national economy, Dr. Cassinelli and other specialists had more recently concluded that Hensley could work with no or few restrictions. After viewing the record as a whole, the Appellate Division

assign[ed] greater weight to the consensus of the examining physicians, which assign little or no injury-related work limitations to [Hensley], Finding those medical opinions to be credible, [the Appellate Division] also [found] that [Hensley] is capable of performing jobs in the national economy, and that the preponderance of competent and credible evidence does not support the award of catastrophic designation under OCGA § 34-9-200.1 (g) (6).

Accordingly, the Appellate Division vacated the ALJ’s award and denied Hensley’s request that his injury be designated as catastrophic.

Hensley appealed the Appellate Division’s ruling to the superior court, asserting that the Appellate Division had exceeded its authority, that it had misapplied the law, and that the evidence did not support its findings. The superior court found that the Appellate Division committed legal error by improperly applying a de novo standard of review and that the application of the correct standard of review required a finding that the ALJ’s award designating Hensley’s injuries as catastrophic was supported by the preponderance of the competent and credible evidence.

1. The employer contends that the superior court erred in ruling that the Appellate Division committed legal error by improperly applying a de novo standard of review to the AU’s findings of fact.

As amended in 1994, OCGA § 34-9-103 (a) provides, in pertinent part, that, when the Appellate Division of the State Board of Workers’ Compensation reviews an ALJ’s decision, the ALJ’s findings of fact “shall be accepted by the [A]ppellate [D]ivision where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Since the 1994 amendment, as we have explained, the Appellate Division may no longer hear additional evidence but is limited to the record established in the trial division, that is, the evidence that was received by the ALJ. Home Depot v. McCreary, 306 Ga. App. 805 (1) (703 SE2d 392) (2010). Even so, the Appellate Division

must weigh the evidence and assess the credibility of witnesses and[,] if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, [the ALJ’s award] will be accepted. But, if after assessing the evidence of record, the [A jppellate [Division concludes that the award does not meet the statutes’ evidentiary standards, the [A]ppellate [Division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.

(Citations omitted; emphasis supplied.) Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). Although the Appellate Division’s review is not strictly de novo, the Appellate Division is a trier of fact, “authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the ALJ who initially heard the dispute.” (Citation omitted.) Home Depot v. McCreary, 306 Ga. App. at 808 (2).

The record shows that, after weighing the evidence received by the ALJ, the Appellate Division concluded that the preponderance of the competent and credible evidence did not support the ALJ’s catastrophic injury finding. It therefore substituted its own findings for those of the ALJ, as it was authorized to do. Bankhead Enterprises v. Beavers, 267 Ga. at 507. Thus, the Appellate Division performed the appropriate review here, and the superior court erred in finding otherwise.

2. The employer contends that the Appellate Division’s decision was supported by evidence in the record and, therefore, that the superior court erred in reversing the Appellate Division’s judgment. Unlike the Appellate Division, which may weigh the evidence heard by the ALJ and substitute its own alternative findings for those of the AU, as explained more fully in Division 1, supra, a superior court that is reviewing a decision of the Appellate Division performs a more limited review. The factual findings of the Board’s Appellate Division, when supported by any evidence, are conclusive and binding upon the superior court, and the superior court may not substitute itself as a fact-finding body in lieu of the Board. OCGA § 34-9-105 (c); Keystone Automotive v. Hall, 292 Ga. App. 645, 647-648 (1) (665 SE2d 392) (2008); see also James B. Hiers, Jr., et al., Ga. Workers’ Comp. Law & Practice, § 14-4 (5th ed., updated 2010-2011). Likewise, the findings of the Board’s Appellate Division, when supported by any evidence, are conclusive and binding upon this Court, when reviewing a decision of the superior court, and this Court may not substitute itself as a fact-finding body in lieu of the Board. Keystone Automotive v. Hall, 292 Ga. App. at 647-648 (1). “The question of whether the [superior] court applied the correct legal standard in evaluating the evidence, however, is one of law, which we review de novo.” (Citation and punctuation omitted.) Id. at 647 (1).

Decided April 5, 2011

Swift, Currie, McGhee & Hiers, Todd A. Brooks, M. Ann McElroy, for appellants.

Westmoreland, Patterson, Moseley & Hinson, Thomas W. Herman, for appellee.

As detailed above, the findings of Dr. Cassinelli and other doctors, together with Thompson’s written assessment and testimony, provided evidence that, at least by the time of the Appellate Division’s judgment, Hensley’s back injury was not of a nature and severity that it prevented him from being able to perform any work available in substantial numbers within the national economy for which he was otherwise qualified. Because the Appellate Division’s finding that Hensley’s injuries were not catastrophic was supported by some evidence, the superior court erred in weighing the evidence and in substituting its judgment for that of the Appellate Division. Jered Indus. v. Pearson, 261 Ga. App. 373, 374-375 (582 SE2d 522) (2003).

3. In light of our ruling in Divisions 1 and 2, supra, the employer’s remaining argument is moot.

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

       See OCGA § 5-6-35 (a) (1).

       OCGA § 34-9-200.1 (g) defines a catastrophic injury, inter alia, as any injury “of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified!.]” OCGA § 34-9-200.1 (g) (6) (A).

       See Ga. Laws 1994, p. 887, § 8.

       See also Logan v. St. Joseph Hosp., 227 Ga. App. 853, 858 (2) (490 SE2d 483) (1997) (“Evaluating the competency and credibility of the evidence, the [Ajppellate [DJivision performs a hybrid review function and decides whether the greater weight lies with the ALJ’s findings. If so, it must accept them; if not, it can substitute its own findings.”) (citation and punctuation omitted) (physical precedent only).

       The only grounds for appeal to the Superior Court are the following:
      (1) The members acted without or in excess of their powers;

        (2) The order or decree was procured by fraud;
      (3) The facts found by the members do not support the order or decree;
      (4) There is not sufficient competent evidence in the record to warrant the members in making the order or decree complained of; or
      (5) The order or decree is contrary to law.
      OCGA § 34-9-105 (c).


author: Blackwell, Judge.

text:
    A10A2289.
    BENEDICT v. STATE FARM BANK, FSB.
    (709 SE2d 314)
   Blackwell, Judge.

C. M. Benedict sued State Farm Bank, FSB, alleging in his complaint that State Farm representatives placed more than a hundred harassing calls to his telephone number and asserting that this conduct amounts to a tort. State Farm moved to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (6) because it failed, State Farm said, to state a claim upon which relief can be granted. State Farm also counterclaimed for the amount of an overdue credit card debt that Benedict owed to State Farm, as well as its attorney fees and costs of litigation, and State Farm moved to compel Benedict to arbitrate the counterclaim. The trial court granted both the motion to dismiss and the motion to compel arbitration, and after an arbitrator rendered an award in favor of State Farm on its counterclaim, the trial court confirmed the arbitration award and entered final judgment against Benedict. Benedict now appeals from this final judgment, and seeing no error, we affirm.

1. Benedict contends that the trial court erred when it dismissed his complaint against State Farm. We review de novo the dismissal of a complaint for failure to state a claim. Southstar Energy Svcs. v. Ellison, 286 Ga. 709, 710 (1) (691 SE2d 203) (2010). At a minimum, a complaint must contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” OCGA § 9-11-8 (a) (2) (A), and this short and plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading. See Dillingham v. Doctors Clinic, 236 Ga. 302, 303 (223 SE2d 625) (1976); see also Patrick v. Verizon Directories Corp., 284 Ga. App. 123, 124 (643 SE2d 251) (2007). If a complaint gives the defendant fair notice of the nature of the claim, it should be dismissed for failure to state a claim only if, as our Supreme Court has explained, its allegations “disclose with certainty” that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks. See id. Put another way, “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” Bourn v. Herring, 225 Ga. 67, 70 (3) (166 SE2d 89) (1969). In assessing the sufficiency of the complaint, we view its allegations of fact in the light most favorable to the plaintiff. See Southstar, 286 Ga. at 710 (1).

So viewed, Benedict alleges that State Farm issued a credit card to him sometime in 2003 and that he used the credit card until July 2006, when he learned that State Farm intended to increase the rate of interest. Benedict failed to make a payment that was due to State Farm on July 20, 2006. On August 13, a representative of State Farm telephoned Benedict about the past due payment, and Benedict told this representative that he planned to pay off the outstanding balance of the credit card account in September. On August 20, a second State Farm representative telephoned Benedict, who again said that he planned to pay off the outstanding balance soon. Benedict also told this representative not to call him again. According to Benedict, the representative responded that State Farm would not honor his request and would, in fact, telephone him as often as it liked.

Benedict claims that, between August 20 and September 6, State Farm representatives telephoned him from a “blocked number” on 168 occasions. Benedict says that these representatives “hung up the telephone” without speaking whenever he answered and did not leave any message whenever his answering service picked up the calls. Benedict does not say how many calls he answered, how many were picked up by his answering service, and how many went unanswered, and he does not allege the times at which the calls were placed. Benedict alleges that, as a result of these calls, he suffered $60,000 in “actual damages,” but he does not say how exactly the making of these calls injured him.

On State Farm’s motion, the trial court concluded that these allegations fail to state a claim upon which relief can be granted and dismissed the complaint pursuant to OCGA § 9-11-12 (b) (6). On appeal, Benedict contends that his allegations are sufficient to state a claim for invasion of privacy or, in the alternative, for intentional infliction of emotional distress. We disagree.

(a) We first examine whether Benedict has stated a claim for invasion of privacy upon which relief can be granted. More than 100 years ago, our Supreme Court recognized a private right of action for an invasion of privacy. See Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68) (1905). Since then, the Supreme Court and this Court have identified four kinds of invasion of privacy for which a right of action exists, and among these is an intrusion upon the seclusion or solitude of a plaintiff or into his private affairs. See, e.g., Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704-705 (1) (409 SE2d 835) (1991); Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 583 (657 SE2d 644) (2008); Anderson v. Mergenhagen, 283 Ga. App. 546, 549 (2) (642 SE2d 105) (2007); Johnson v. Allen, 272 Ga. App. 861, 863 (1) (613 SE2d 657) (2005); Everett v. Goodloe, 268 Ga. App. 536, 544 (2) (b) (602 SE2d 284) (2004); Assn. Svcs. v. Smith, 249 Ga. App. 629, 632 (2) (549 SE2d 454) (2001); Johns v. Ridley, 245 Ga. App. 710, 712 (2) (537 SE2d 746) (2000), reversed on other grounds, Ridley v. Johns, 274 Ga. 241 (552 SE2d 853) (2001); Davis v. Emmis Publishing Corp., 244 Ga. App. 795, 797 (2) (536 SE2d 809) (2000); Troncalli v. Jones, 237 Ga. App. 10, 13 (2) (514 SE2d 478) (1999); Jarrett v. Butts, 190 Ga. App. 703, 704 (2) (379 SE2d 583) (1989); Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496) (1966). To the extent that Benedict states any claim that is cognizable as an invasion of privacy, it is a claim for intrusion. We think, however, that the conduct Benedict attributes to State Farm in this case is not actionable as an intrusion, and for this reason, he fails to state a claim upon which relief can be granted.

The Supreme Court has instructed that conduct actionable as an intrusion “involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns,” Yarbray, 261 Ga. at 705 (1), but a more precise definition of such a prying or intrusion remains somewhat elusive. For several years, our Court said that, “to state a claim under the ‘unreasonable intrusion’ tort, the plaintiff must allege a physical intrusion which is analogous to trespass.” Anderson, 283 Ga. App. at 550 (2) (punctuation omitted); see also Allen, 272 Ga. App. at 864 (1); Assn. Svcs., 249 Ga. App. at 632 (2); Davis, 244 Ga. App. at 797 (2). In more recent cases, we have adhered to the requirement of a “physical intrusion,” but with the understanding “that this ‘physical’ requirement can be met by showing that the defendant conducted surveillance on the plaintiff or otherwise monitored her activities.” Anderson, 283 Ga. App. at 550 (2). Benedict does not allege, however, that State Farm made any “physical intrusion which is analogous to trespass” or that State Farm “conducted surveillance on [Benedict] or otherwise monitored [his] activities.”

Benedict instead alleges only that State Farm representatives placed repeated calls to his telephone number, not for any legitimate business purpose, but merely to harass, bother, and annoy him. We do not doubt that such a pattern of conduct may be a substantial annoyance to the recipient of the calls and may disturb his peace and tranquility. But Benedict does not point us to any case — and we have not found any case — in which the Supreme Court or our Court has held that merely annoying someone or disturbing his peace or tranquility, without more, amounts to an actionable invasion of privacy. To the contrary, the cases in which we have found actionable intrusions involved visual surveillance of a plaintiff as she was engaged in her private affairs, Anderson, 283 Ga. App. at 552 (2), electronic surveillance of a plaintiff while she was in private places, Allen, 272 Ga. App. at 864 (1), physical trespasses upon private property, Assn. Svcs., 249 Ga. App. at 632 (2), or an unwanted, physical touching of the plaintiff, Troncalli, 237 Ga. App. at 14 (2). Because. Benedict does not allege any conduct that is akin to surveillance, a physical trespass upon his property, or a physical touching of his person, we must conclude that Benedict fails to state a claim upon which relief can be granted under any of our intrusion precedents.

In an effort to avoid this conclusion, Benedict cites our statement in Anderson that “a relatively harmless activity can become tortious with repetition, as when, for example, telephone calls ‘are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff,’ and becoming ‘a substantial burden to his existence.’ ” 283 Ga. App. at 552 (2) (quoting Restatement (Second) of Torts § 652B, comments c, d). We are not persuaded that Anderson requires a different result in this case. In the first place, Anderson involved visual surveillance — following the plaintiff about town and photographing her — and did not involve harassing telephone calls, so the statement on which Benedict relies is mere dicta. And in any event, even under the standard set out in the Anderson dicta, a plaintiff would be required to allege not only that the defendant made repeated telephone calls, but also that the calls became a “substantial burden to his existence.” Benedict, however, does not allege that the telephone calls worked any particular injury, much less that they were a “substantial burden to his existence.” Accordingly, even if repeated and harassing telephone calls might in some circumstances amount to an actionable intrusion — an issue that we need not, and do not, decide today — we still would conclude that Benedict fails to state a claim because his allegations do not give State Farm fair notice that he asserts such a claim for a “substantial burden to his existence.” See Ledford v. Meyer, 249 Ga. 407, 408-409 (2) (290 SE2d 908) (1982) (“The true test [of a complaint] is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly. . . .”).

(b) We next examine whether Benedict has stated a claim for intentional infliction of emotional distress, but our consideration of this issue need not detain us long. A claim of intentional infliction requires conduct that is “of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” Turnage v. Kasper, 307 Ga. App. 172, 182 (1) (c) (704 SE2d 842) (2010) (citation and punctuation omitted); see also Gordon v. Frost, 193 Ga. App. 517, 521 (1) (388 SE2d 362) (1989). Although Benedict argued at the hearing on the motion to dismiss that his allegations were sufficient to plead intentional infliction, his complaint says nothing at all about humiliation, embarrassment, fright, extreme outrage, or severe emotional distress. To the contrary, the only allegations about the impact that Benedict felt from the repeated telephone calls are allegations that he was “repeatedly harassed” and that his privacy was “invaded continuously and repeatedly.” Such allegations do not give fair notice to State Farm of a claim for intentional infliction of emotional distress, and for this reason, Benedict fails to state a claim for intentional infliction upon which relief can be granted. See Ledford, 249 Ga. at 408 (2).

2. Benedict also contends that the trial court erred when it compelled him to arbitrate the counterclaim because, he says, State Farm failed to come forward with competent evidence that he, in fact, agreed to arbitrate his dispute with State Farm. We review de novo the grant of a motion to compel arbitration. Tillman Park, LLC v. Dabbs-Williams Gen. Contractors, 298 Ga. App. 27, 29 (679 SE2d 67) (2009). Arbitration is “a matter of consent, not coercion,” Volt Information Sciences v. Bd. of Trustees of Leland Stanford Junior University, 489 U. S. 468, 479 (109 SC 1248, 103 LE2d 488) (1989), and a party can be compelled to arbitrate only upon a showing that he entered into an enforceable agreement to arbitrate. Life Care Centers &c. v. Smith, 298 Ga. App. 739, 741 (1) (681 SE2d 182) (2009). Here, we think there is sufficient evidence of the existence of an enforceable agreement between Benedict and State Farm to arbitrate, and for this reason, the trial court did not err when it compelled Benedict to arbitrate the counterclaim.

In support of its motion to compel arbitration, State Farm produced the version of its standard Credit Card Agreement and Disclosure Statement that was in use at the time a credit card was issued to Benedict, and this standard agreement includes a mandatory arbitration provision. Benedict says that there is no competent evidence that State Farm ever sent this standard agreement to him, and there is, therefore, no evidence that he even had an opportunity to agree to its terms. State Farm, however, brought forward evidence that, at the time it issued a credit card to Benedict, its usual and customary business practice was to mail a newly issued credit card and a copy of the standard agreement to the cardholder in a single envelope. And an employee of State Farm having personal knowledge of this customary business practice stated in an affidavit that he believed the issuance of the credit card to Benedict conformed to this practice. As our Court has explained before, such evidence of the customary business practices of an organization is admissible proof that the conduct of the organization on a particular occasion conformed to the practice. See Wood v. First Nat. Bank &c., 167 Ga. App. 202, 203 (305 SE2d 852) (1983) (“Generally, a witness who has no distinct and independent recollection of the details of a fact occurring in the routine course of his business may testify to the fixed and uniform habit in such cases and state that he believes that what was done in a given transaction was in accordance with habit.”) (citations and punctuation omitted); see also Baxter v. State, 159 Ga. App. 632, 633 (2) (284 SE2d 649) (1981); Continental Cas. Co. v. Wilson-Avery, Inc., 115 Ga. App. 793, 797 (5) (156 SE2d 152) (1967). Moreover, Benedict’s claim that he had no knowledge of the Credit Card Agreement and Disclosure Statement — and could not, therefore, be bound by it — is contradicted by his own affidavit, to which he attaches a different document that he received from State Farm and that, he admits, sets forth some of the terms of his relationship with State Farm. This document, which appears to be an explanation of, among other things, how State Farm prepares its credit card bills, refers explicitly to “your Credit Card Agreement and Disclosure Statement.”

Decided March 22, 2011

Reconsideration denied April 6, 2011

C. M. Benedict, pro se.

Bryan, Cave, Powell & Goldstein, Adwoa G. Seymour, Lewis, Brisbois, Bisgaard & Smith, John C. Patton, for appellee.

In all, the evidence was enough to prove that Benedict was aware, when he received his credit card from State Farm, that his relationship with State Farm would be governed by the terms of the Credit Card Agreement and Disclosure Statement. And when Benedict subsequently activated and used his credit card, he accepted those terms. See Davis v. Discover Bank, 277 Ga. App. 864, 865-866 (627 SE2d 819) (2006) (bank not required to produce signed credit card agreement because agreement was accepted “when defendant retained the card and thereafter made use of it”) (citations and punctuation omitted). For these reasons, the trial court did not err when it compelled Benedict to arbitrate the counterclaim.

Judgment affirmed.

Barnes, E J., and Dillard, J., concur.

       Benedict does not allege, for instance, that these calls substantially burdened his existence or caused him severe emotional distress. The significance of the absence of such allegations is discussed below.

       We note that OCGA §§ 16-11-39.1 (a) and 46-5-21 (a) prohibit the making of harassing telephone calls in Georgia. We also note that 47 USC § 223 (a) (1) prohibits the making of harassing telephone calls in interstate or foreign communications. Benedict cited these statutes in his complaint, but when he responded to the motion to dismiss, he conceded that his tort claim against State Farm is not premised on a breach of any duties imposed by these statutes. And Benedict does not contend on appeal that he has any private right of action under these statutes. Consequently, we decide nothing in this case about the extent to which these statutes might entitle a recipient of harassing telephone calls to damages or other relief.

       The other recognized invasions of privacy for which a right of action exists are the public disclosure of embarrassing private facts, publicity that puts one in a false light, and the appropriation of one’s name or likeness for the advantage of another. See Cabaniss, 114 Ga. App. at 370. Benedict does not say anything in his complaint about the public disclosure of embarrassing private facts, publicity casting him in a false light, or the misappropriation of his name or likeness. So, his claim for invasion of privacy — if it is cognizable at all under our precedents — must be one for intrusion upon his seclusion or solitude or into his private affairs. See Yarbray, 261 Ga. at 705 (1).

       In both Udoinyion and Ridley, we held that making repeated telephone calls, when the recipient has instructed the caller not to do so, is not an actionable intrusion. See Udoinyion,
        289 Ga. App. at 583-584; Ridley, 245 Ga. App. at 712. We acknowledge, however, that the telephone calls in Udoinyion and Ridley apparently were made for a legitimate business purpose. Because Benedict alleges that the State Farm calls had no legitimate business purpose, we do not find that this case is governed squarely by our holding in Udoinyion or Ridley.

       In addition to physical trespasses upon private property, there was evidence in Assn. Svcs. that the defendant-investigator made “at least seven ‘pretext’ telephone calls to [the plaintiffs] workplace.” 249 Ga. App. at 632 (2). We do not think, however, that Assn. Svcs. requires us to find that Benedict has stated an actionable intrusion claim. The making of repeated telephone calls to gather private information about another by use of false pretenses — especially when it is part of a larger pattern that includes physical trespasses and visual surveillance — is itself akin to surveillance; the making of repeated telephone calls simply to harass another is not. The former may involve an intrusion into the private affairs of another, while the latter, at most, merely disturbs the peace and quiet of another.

       After the hearing on the motion to dismiss, Benedict proffered an amended complaint, in which he explicitly alleged that State Farm’s conduct was “deliberate, willful and intended to, and did, inflict mental distress upon the Plaintiff.” But Benedict subsequently withdrew his amended complaint and elected to stand or fall upon the allegations in his original complaint. We, therefore, say nothing about whether the allegations in the amended complaint might state a claim upon which relief can be granted.

       Benedict also claims that the trial court erred when it confirmed the arbitration award, but only because the trial court, he says, never should have compelled him to arbitrate in the first place. Because Benedict offers no additional reason why the arbitration award should not have been confirmed, the absence of error in compelling arbitration also resolves the claim of error in confirming the award.

       Benedict does not claim that the arbitration provisions of the agreement are not broad enough to encompass the counterclaim. He just says that he never accepted the terms of the agreement.

       Benedict disputes that this employee had personal knowledge of the customary practices at the time State Farm issued a credit card to him because, Benedict says, the affidavit reflects that the employee became employed with State Farm at a later date. Benedict, however, misreads the affidavit. The affidavit reflects that the employee came to hold his present position with State Farm at a later date. The affidavit recites that the employee has personal knowledge of the relevant customary practice, and nothing in the affidavit is inconsistent with such knowledge.


author: Doyle, Judge.

text:
    A10A2341.
    DEMPSEY v. SOUTHEASTERN INDUSTRIAL CONTRACTING COMPANY, INC. et al.
    (709 SE2d 320)
   Doyle, Judge.

In this personal injury case, Mary Ann Dempsey appeals from the grant of summary judgment to Southeastern Industrial Contracting Company, Inc. (“Southeastern”), Tommy Smithberger (CEO of Southeastern), and Joseph Garrett (a Southeastern employee). Because Dempsey has failed to produce supporting evidence giving rise to a triable issue as to the defendants’ liability, 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. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that on February 10, 2006, Dempsey, a driver for United Parcel Service (“UPS”), was finishing loading her truck at the beginning of her shift. She stood at a conveyor belt that carried packages to the back of her truck. As Dempsey removed packages to load onto her truck, a wire protruding from the edge of the conveyor belt caught her glove and pulled her hand into the conveyor belt roller mechanism, injuring her.

Dempsey filed this lawsuit against Southeastern and, as individuals, Smithberger and Garrett. After discovery, Dempsey focused her argument on the following allegations: the defendants failed to properly inspect and maintain a guard covering the conveyor’s rollers (“transfer plate”), failed to notify UPS about the proper location of shut-off switches, and failed to warn UPS of an ongoing risk of dangerous conveyor belt snags. The trial court granted summary judgment to each defendant, and Dempsey filed this appeal.

1. Dempsey contends that the trial court erred by concluding that the defendants owed her no duty of care because she was not a third-party beneficiary of Southeastern’s contract with UPS. The trial court relied on CDP Event Svcs. v. Atcheson, which stands for the proposition that

[a]n injured party may recover for personal injuries as a third-party beneficiary for failure to perform a contractual duty only where it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.

Based on this proposition, the trial court ruled in that case that an injured concertgoer was not owed a duty of care by the security company hired by a concert promoter. However, CDP Event Svcs. only narrowly addressed the question of whether the plaintiff was a third-party beneficiary of the security contract, and the Court explicitly declined to address “ ‘whether duty and liability arise by misfeasance [as opposed to nonfeasance] in the performance of the contract.’ ”

Pretermitting whether CDP Event Svcs. controls the questions presented in this case, a judgment of a lower court may be affirmed if it is right for any reason. Because Dempsey fails to point to supporting evidence giving rise to triable issues, and this failure of proof was argued below and on appeal, we affirm the grant of summary judgment on that basis.

2. Grant of summary judgment to Southeastern. We note at the outset that, to support a motion for summary judgment,

a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Here, it is undisputed that prior to Dempsey’s February 10, 2006 injury, Southeastern had last inspected the UPS facility on December 15, 2005. At the summary judgment hearing, Dempsey’s counsel conceded that he had no evidence showing that the protruding wire on the conveyor belt was present at the time of Southeastern’s last inspection. And Dempsey points to no evidence that Southeastern was requested but failed to inspect the conveyor belt between the last inspection and Dempsey’s injury. Thus, other than by speculation, which is not a basis for avoiding summary judgment, she cannot show that Southeastern was negligent in its inspection, nor does she contend as much.

(a) Instead, Dempsey argues that Southeastern had an ongoing duty to warn UPS that protruding wires could cause injury in the future and take some preventative action or recommend a remedy. However, it is not alleged that Southeastern ever failed to inform UPS of protruding wires actually discovered, and the record shows that UPS employees were already aware that wires occasionally protruded from belts. Further, the contract did not specify that action be taken to prevent defects that had not occurred. In essence, Southeastern was contracted to discover and remedy mechanical issues as they arose, not anticipate and prevent future problems that did not yet exist. Under these facts, Dempsey cannot maintain her cause of action against Southeastern based on the protruding wire in this case.

(b) Likewise, with respect to Dempsey’s argument regarding a maladjusted transfer plate covering the gap between the conveyor and rollers, Dempsey cannot survive summary judgment based on the record before us. Dempsey points to deposition testimony from her experts, who never saw the actual transfer plate at issue, concluding that the transfer plate must have been maladjusted if Dempsey’s fingers were able to enter the roller under it. Dempsey also cites testimony from an employee who gave a “guesstimation” that the gap between the plate and the belt was too wide, conceding that he never measured the gap. However, such conclusory and speculative testimony lacks the probative value sufficient to create a question of fact to survive summary judgment. This is because “[a] It hough an opposing party is entitled to the benefit of reasonable inferences, an inference cannot be based on mere conjecture or probability, or on evidence that is too uncertain or speculative.”

(c) Finally, with respect to the allegedly improper location of shut-off switches, Dempsey argues that the nearest shut-off switch — approximately ten feet away — was located too far away from her station. However, it is undisputed that the switches were installed prior to the maintenance contract with Southeastern, and Southeastern neither installed nor specified the location of the switches. Moreover, the contract simply required that Southeastern was to notify UPS of “unsafe conditions with electrical components,” not evaluate the components’ design parameters or perform a regulatory compliance audit. Further, another UPS employee was “right at the [shut-off] switch” and able to “immediately” shut the conveyor off within one to two seconds, and other than Dempsey’s speculation, there is no evidence that a switch placed closer to Dempsey would have prevented her injury. Thus, under these facts, there remains no triable issue of fact with respect to the location of the shut-off switches.

3. Summary judgment to Smithberger. Dempsey sued Smith-berger, the CEO of Southeastern, contending that he is personally liable for his personal involvement in training and delegating the inspection work to Southeastern employees. We disagree.

Generally,

an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein.

Here, Dempsey argues that because Smithberger was responsible for training and dispatching Southeastern employees on their inspection and maintenance duties, he can be personally liable for some alleged oversight of those employees. However, in addition to our conclusions in Division 2, we conclude that the mere fact that an injury occurred during a period when Smithberger was responsible for employee training and dispatch is not sufficient to support an inference that the injury was caused by some actionable negligence on Smithberger’s part. Accordingly, the claim against Smithberger fails as a matter of law.

4. Summary judgment to Garrett. Dempsey also challenges the grant of summary judgment to Garrett, a Southeastern employee. Nevertheless, the evidence is undisputed that while Garrett had “walked through” the facility as a point of contact for UPS, he had never personally performed any work on or inspection of the conveyor belt prior to Dempsey’s injury. Therefore, in light of these facts and our conclusions above, we discern no reversible error.

Decided March 23, 2011

Reconsideration denied April 6, 2011

Coppedge & Evans, Warren N. Coppedge, Jr., Allison J. Roberts, for appellant.

Downey & Cleveland, George L. Welborn, for appellees.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

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

       289 Ga. App. 183 (656 SE2d 537) (2008).

       (Punctuation omitted.) Id. at 184 (1).

       See id. at 186-187 (1).

       Id. at 187 (2).

       See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 45 (4) (586 SE2d 235) (2003) (a judgment of a lower court may be affirmed so long as it is right for any reason); City of Gainesville v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002) (appellate courts may exercise discretion as to when to follow the “right for any reason” rule and consider grounds not addressed by the trial court).

       (Citations and punctuation omitted; emphasis supplied.) See Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

       See id. at 633 (2) (c) (“Summary judgment cannot be avoided based on speculation or conjecture.”).

       Although not explicitly argued by Dempsey, this basis is tantamount to a res ipsa loquitur argument. “Res ipsa loquitur is an evidentiary based rule which provides for an inference of negligence to arise from the occurrence of an injury-causing incident.” Ken Thomas of Ga., Inc. v. Halim, 266 Ga. App. 570, 573 (597 SE2d 615) (2004). One necessary element of the doctrine is that the injury “must be caused by an agency or instrumentality within the exclusive control of the defendant,” which was not the case here. (Punctuation omitted.) Id.

       See Denson Heating &c. Co. v. Oglesby, 266 Ga. App. 147, 148 (596 SE2d 685) (2004). See Bankers Health & Life Ins. Co. v. Fryhofer, 114 Ga. App. 107, 110 (1) (150 SE2d 365) (1966) (evidence dependent entirely on guess or speculation is not sufficient to support a verdict). With respect to the suitability or rigidity of the transfer plate material itself, the record shows that the plate was specified by UPS and not installed or provided by Southeastern.

       See id. at 110-111 (1).

       Dempsey does not contend that Smithberger is vicariously liable as an officer of Southeastern.

       (Punctuation omitted.) Beasley v. A Better Gas Co., 269 Ga. App. 426, 429 (2) (604 SE2d 202) (2004).

       See id. at 430 (2) (corporate officer’s “alleged failure to provide proper training ... is not a sufficiently direct participation in a tort... to expose [corporate officer] to personal liability under Georgia law”). Compare Field Bros. Gen. Contractors v. Ruecksties, 288 Ga. App. 674, 677-678 (2) (655 SE2d 282) (2007) (officer of construction company was liable for work he personally oversaw and helped perform as lead framer on site).


author: PHIPPS, Presiding Judge.

text:
    A10A2342.
    GILMER COUNTY BOARD OF TAX ASSESSORS v. McHUGH et al.
    (709 SE2d 311)
   PHIPPS, Presiding Judge.

In this tax appeal, the Gilmer County Board of Tax Assessors (BTA) challenges the superior court’s judgment setting the value for improved residential real property owned by Emory and Sherry McHugh at $291,000. Finding no error in the superior court’s ruling, we affirm.

The evidence showed that, pursuant to OCGA § 48-5-311, the McHughs pursued a tax appeal of their 2008 tax assessment to the Gilmer County Board of Equalization (BOE) and then to the superior court. At a bench trial before the superior court, they presented expert opinion testimony that the fair market value of their property was $291,000. They also presented expert opinion testimony that residential properties in the county were not being uniformly assessed, due to the BTA’s misapplication of an “absorption rate.” Expert witnesses testified that, correctly applied, the absorption rate was a method for determining the fair market value of certain types of residential properties (undeveloped, developer-owned properties), but that the manner in which the BTA had applied the absorption rate to those types of properties did not produce estimates of fair market values, resulting in a lack of uniformity countywide in assessing the broader class of residential properties. In addition, the McHughs elicited testimony that the BTA had inconsistently applied a “location adjustment” to properties within their subdivision, resulting in their property being given a higher value than other, similarly-situated properties. The BTA presented contrary evidence concerning the fair market value of the McHughs’ property, the uniformity of assessment of residential properties in the county, and the BTA’s use of absorption rates and location adjustments in assessing property values.

After the trial, the superior court entered an order setting the property’s fair market value at $291,000. The court based this ruling in part on its conclusion that the BTA had not uniformly assessed residential properties in the county. In support of its conclusion that uniformity had not been shown, the court found that the BTA had misapplied absorption rates in a manner that produced assessments for some properties that were less than fair market value. The court also found that the BTA had employed the location adjustment arbitrarily, so as to treat similarly situated properties differently within the McHughs’ subdivision.

1. Contesting the court’s judgment, the BTA argues that “a taxpayer who owns an improved lot within a subdivision may not contest uniformity by contending that the tax assessment of the developer of the subdivision who owns vacant lots has been under-assessed.”

We find no merit in the BTA’s claim that the superior court erred in allowing the McHughs to challenge the uniformity of their tax assessment. Although “a taxpayer does not. . . have standing to dispute decisions of the [state revenue] commissioner with regard to county tax digests,” OCGA § 48-5-311 expressly allows a taxpayer to raise matters of uniformity of assessment in a tax appeal.

The BTA characterizes the McHughs’ uniformity challenge as a claim that another taxpayer (a developer who owned undeveloped property within the McHughs’ subdivision) was underassessed, rather than a claim that the McHughs themselves were assessed for more than their property’s fair market value. It cites Blackmon v. Cobb County-Marietta Water Auth. for the proposition that a “taxpayer cannot protect himself against a legal and proper demand for his own taxes, by alleging that another taxpayer has been assessed for taxation in a way to render his taxes less than they ought to be under a proper administration of the law.” But we have declined to apply the proposition expressed in Blackmon where a taxpayer “did not contest uniformity by showing the amount of taxes paid by one or two other taxpayers[,] [but instead] based its case upon the amount of taxes paid by numerous other taxpayers.”

In this case, the McHughs did not base their uniformity challenge solely upon the amount of taxes paid by the specific developer who owned property within their subdivision; they also based their challenge upon the amount of taxes paid by numerous other taxpayers in the county, to whose properties the McHughs contended an absorption rate had been misapplied. Evidence was presented that absorption rates had been applied to approximately 2,800 properties within the county, that the BTA’s method of applying the absorption rates led to assessments that did not reflect those properties’ fair market values, and that this practice resulted in a lack of uniformity in assessing residential properties — a class that included the McHughs’ property — within the county. The McHughs were entitled, in their tax appeal, to challenge uniformity in this manner, and the superior court properly considered the evidence presented thereon.

2. The BTA argues that “a board of tax assessors may use a different method to address vacant lots owned by the developer of a subdivision from the method used to assess improved lots within the subdivision.” It further argues that “a board of tax assessors may assign different location factors to different parcels of property within a subdivision based upon the specific characteristics of each parcel.” The superior court, however, did not rule on whether these practices were or were not authorized; it ruled that, in this particular case, the BTA failed to meet its burden of proof regarding the fair market value of the McHughs’ property and the uniformity of their property assessment.

An appeal of a decision of a Board of Equalization to the superior court under OCGA § 48-5-311 is a de novo action in which a Board of Tax Assessors bears the burden of proving, by a preponderance of the evidence, its opinions of value and the validity of its proposed assessment. In such an action, “[j]ust and fair valuation of property is a question to be determined by the factfinder, here, the trial court. On appellate review, the trial court’s determination must be affirmed unless it is clearly erroneous.”

Decided March 21, 2011

Reconsideration denied April 6, 2011

Fox, Chandler, Homans, Hicks & McKinnon, Joseph A. Homans, for appellant.

McNally, Fox, Grant & Davenport, Dennis A. Davenport, for appellees.

An appraiser gave expert opinion testimony that the fair market value of the McHughs’ property was $291,000. Other expert witnesses opined that the county employed appraisal methods in manners that systemically produced incorrect or arbitrary estimates of fair market value for residential properties, resulting in a lack of uniformity in that particular class of properties. Given this evidence, it was not clearly erroneous for the superior court to conclude that the BTA had not shown uniformity regarding the McHughs’ property or for the court to set the fair market value of their property at $291,000.

Judgment affirmed.

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

        Hill v. Hall County Bd. of Tax Assessors, 275 Ga. App. 504, 505 (621 SE2d 517) (2005) (footnote omitted).

       OCGA § 48-5-311 (e) (1); see Glynn County Bd. of Tax Assessors v. Haller, 273 Ga. 649, 650 (3) (543 SE2d 699) (2001); Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, 265 Ga. 645, 646 (458 SE2d 632) (1995).

       126 Ga. App. 459 (191 SE2d 128) (1972).

       Id. at 462 (2) (citation and punctuation omitted).

        Gwinnett County Bd. of Tax Assessors v. Ackerman/Indian Trail Assn., 198 Ga. App. 723, 725 (2) (402 SE2d 794) (1991), overruled on other grounds, Fulton County Bd. of Tax Assessors v. Nat. Biscuit Co., 296 Ga. App. 884, 885-886 (676 SE2d 41) (2009).

       See Ackerman, supra; see also OCGA § 48-5-311 (d) (2) (allowing for the presentation of evidence on whether the property involved in a tax appeal had been uniformly assessed with other property included in the tax digest); Cohran v. Paulding County Bd. of Tax Assessors, 212 Ga. App. 880, 881 (443 SE2d 519) (1994) (to the extent the issue of uniformity pertained to the assessed value of the taxpayer’s property, it was proper for evidence to be presented on the issue and considered by the superior court); Monroe County Bd. of Tax Assessors v. Remick, 165 Ga. App. 616, 620-621 (3) (300 SE2d 203) (1983) (affirming superior court’s remand of tax appeal to board of tax assessors for reassessment where superior court did not have before it sufficient facts upon which to rule on issue of uniformity).

       See generally Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 91 (701 SE2d 472) (2010) (although no particular appraisal method is required to determine fair market value, a board of tax assessors cannot act with unlimited discretion in assessing properties; valuations must be just and fair between all taxpayers, and methods used cannot be arbitrary or unreasonable).

       See OCGA § 48-5-311 (g) (3); see also Nat. Biscuit Co., supra at 885, n. 1 (OCGA § 48-5-311 (g) (3) was amended in 1999 to impose the burden of proof requirement).

        J. C. Penney Co. v. Richmond County Bd. of Tax Assessors, 233 Ga. App. 399, 400-401 (504 SE2d 201) (1998) (citations and punctuation omitted); see Hill, supra at 504.

       Compare Smith v. Elbert County Bd. of Tax Assessors, 292 Ga. App. 417, 418 (2) (664 SE2d 786) (2008) (upholding board of tax assessors’ use of challenged methodology where it was demonstrated that methodology resulted in determination of fair market value).

       See Ackerman, supra at 724. Compare Hill, supra at 505 (where board of tax assessors presented evidence that all properties were appraised on a mass basis and the taxpayer’s property was not singled out or appraised differently, and the taxpayer presented no evidence to the contrary, the superior court did not clearly err in ruling that uniformity of assessment had been shown).


text:
    A10A2357.
    JONES v. THE STATE.
    (709 SE2d 593)
   Doyle, Judge.

Following a jury trial, William S. Jones, pro se, appeals from his conviction of reckless conduct, reckless driving, and speeding. Jones contends that the trial court erred by concluding that it lacked jurisdiction to address the timely motion for new trial Jones filed after filing his notice of appeal. For the reasons that follow, we agree and remand.

On May 18, 2009, a jury returned a guilty verdict against Jones on a three-count accusation alleging that Jones drove more than 100 miles per hour on Interstate 285 with his 14-year-old child in the car. Before a judgment of conviction and sentence was entered, Jones, through counsel, filed extraordinary motions for new trial on May 29 and June 4, 2009, which were denied. On August 24, 2009, the trial court entered a judgment of conviction and sentence, and on the same day, Jones filed a pro se notice of appeal from that order. On September 23, 2009, Jones then filed a timely pro se motion for new trial. Finally, in an October 5, 2009 order, the trial court denied the motion for new trial, concluding that it had no jurisdiction to consider the motion.

1. Jones contends that the trial court erred by concluding that it lacked jurisdiction to address his motion for new trial, which was timely filed after Jones had already filed a notice of appeal. Jones correctly relies on Housing Authority of the City of Atlanta v. Geter, which stated as follows:

Even though a notice of appeal may divest the trial court of jurisdiction, we conclude that such divestiture does not become effective during the period in which a motion for new trial may be filed. In the event a motion for new trial is timely filed as provided in OCGA § 5-5-40, the effectiveness of the divestiture of jurisdiction is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.

We conclude that this rule controls the instant case, in which the notice of appeal was prematurely filed on the day of the conviction, and the motion for new trial was timely filed thereafter. Because the notice of appeal had not yet ripened when Jones filed his motion for new trial, the trial court’s jurisdiction to hear the motion was preserved, and we therefore remand the case for the trial court to consider Jones’s motion.

Decided April 6, 2011.

William S. Jones, pro se.

Barry E. Morgan, Solicitor-General, Jaret L. Teague, Assistant Solicitor-General, for appellee.

2. Jones’s remaining enumeration, that the trial court erroneously denied him appointed counsel to represent him on appeal, is moot.

Case remanded.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-5-60 (b).

       OCGA § 40-6-390 (a).

       OCGA § 40-6-181 (b) (5).

       252 Ga. 196 (312 SE2d 309) (1984).

       (Citation and punctuation omitted.) Id. at 197.

       See Hood v. State, 282 Ga. 462, 465 (651 SE2d 88) (2007) (notice of appeal filed on the same day as a timely motion for new trial did not divest the trial court of jurisdiction to address the motion for new trial). See also Hall v. State, 282 Ga. 294, 295 (1) (647 SE2d 585) (2007) (premature notice of appeal was treated as effectively filed upon entry of order denying timely motion for new trial). Compare Atkinson v. State, 170 Ga. App. 260, 262 (1) (316 SE2d 592) (1984) (remand to address motion for new trial was not required because appellant did not seek a stay of the appeal and did not diligently pursue motion for new trial in the trial court). We do not extend the Atkinson approach to the facts presented here, because the trial court affirmatively declined to address Jones’s motion for new trial, and Jones would otherwise be denied the opportunity to pursue the merits of issues he timely raised in a motion for new trial.