Laura Morrow v. Angkawijana LLC

• Court: Court of Appeals of Georgia
• Decided: March 27, 2014
• Docket: A13A1864
• Status: Published

Opinion

THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

March 27, 2014

In the Court of Appeals of Georgia A13A1864. MORROW et al. v. ANGKAWIJANA, LLC et al.

MCMILLIAN, Judge.

Laura Morrow, as surviving spouse of Brandon T. Morrow, deceased, and

Richard B. Russell, Jr., as administrator of the estate of Brandon T. Morrow

(collectively referred to as the “Morrows”), appeal the trial court’s grant of summary

judgment in favor of Angkawijana, LLC, IMAEX Trading Company, and The Russell

Corporate Groups, Inc. (“RCG”), in their suit arising out of a two-car collision that

resulted in the death of Brandon T. Morrow. The Morrows also appeal the trial

court’s order granting RCG’s motion to dismiss their claims as barred by the

applicable statute of limitations. We affirm for the reasons set forth below. “On appeal from the grant or denial of a motion for summary judgment, we

apply a de novo standard of review, viewing the evidence and all reasonable

inferences and conclusions drawn from it in the light most favorable to the

nonmoving parties.” (Citation and punctuation omitted.) Myers v. First Citizens Bank

& Trust Co., Inc., 324 Ga. App. 293, 294 (750 SE2d 378) (2013). So viewed, the

record shows that Brandon Morrow was killed on June 20, 2007, when the car in

which he was riding collided with another vehicle (the “Accident”). Brandon

Morrow’s co-worker Martin Dean Williams was driving, and the two were headed to

lunch with another co-worker, Arthur Collins. Brandon Morrow was sitting in the

backseat, and Collins was riding in the front passenger seat. After leaving their

workplace, Williams made a left from Crestridge Court onto Crestridge Drive in

Suwanee, Georgia (the “Intersection”). As Williams made the turn, his car was struck

by an automobile driven by Ivan Basilio Crisan, who was traveling on Crestridge

Drive toward the Intersection. Shortly after the collision, Williams reported a “blind

spot when pulling onto Crestridge Drive,” and later explained that the curve of the

roadway and shrubbery at the Intersection (the “Shrubbery”) obscured his view.

At the time of the Accident, Angkawijana owned the property at 65 Crestridge

Drive (the “Property”), which sits at the southeastern corner of the Intersection and

2 contains the Shrubbery. IMAEX has leased the Property from Angkawijana since its

purchase in 2001, and IMAEX hired RCG to maintain the Property’s landscaping.

RCG’s duties at the time of the Accident included cutting the grass, “do[ing] the

hedging,” blowing leaves, cutting back bushes, laying pine straw and aerating the

ground.

The Morrows filed suit on June 11, 2009, asserting negligence claims against

both drivers and further asserting claims of negligence per se against Angkawijana

and IMAEX in connection with the maintenance of the Shrubbery at the time of the

Accident. The Morrows asserted that the two companies were negligent in installing

and maintaining the Shrubbery, which the Morrows alleged obstructed the view of

Crestview Drive for drivers on Crestridge Court in violation of OCGA § 32-6-51 (b)

(3). On June 29, 2010, over one year after filing suit and over three years after the

Accident, the Morrows filed a motion to add RCG as a defendant. The trial court

granted the order on August 23, 2010, but the Morrows waited until November 3,

2010, to file an amended complaint adding RCG as a party and asserting that it was

negligent in performing its duties with regard to the Shrubbery.

1. Angkawijana, IMAEX, and RCG subsequently filed the motions for

summary judgment that are the subject of this appeal. The Morrows argue that the

3 trial court erred in granting the motions because they assert that the ruling is in direct

contravention of the decision of the Supreme Court of Georgia in Fortner v. Town of

Register, 278 Ga. 625 (604 SE2d 175) (2004).

The Morrows based their negligence claims against Angkawijana, IMAEX, and

RCG on an alleged violation of OCGA § 32-6-51 (b) (3), which provides in relevant

part that:

[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: . . . [o]bstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads.

And “[w]here vegetation is purposely planted, whether for landscaping or some other

function, it may constitute a ‘structure’ as used in statutory language.” Fortner, 278

Ga. at 627 (2). See also Rachels v. Thompson, 290 Ga. App. 115, 117 (658 SE2d 890)

(2008). In the Fortner case, the Supreme Court determined that under OCGA § 32-6-

51 (b) (3), “the maintenance of such an obstruction constitutes negligence when it

creates a traffic hazard and is unauthorized.” (Emphasis supplied.) Fortner, 278 Ga.

at 627-628 (2). Thus, to establish their claims against Angkawijana, IMAEX, and

4 RCG, the Morrows had the burden of showing both that the Shrubbery created a

hazard and that it was placed or maintained at the Intersection without authorization.

See also Howard v. Gourmet Concepts Intl., Inc., 242 Ga. App. 521, 522 (1) (529

SE2d 406) (2000) (“To recover at trial, plaintiff must show that the objects on private

property adjacent to the right-of-way were unauthorized.”). The Supreme Court

construed “the term ‘unauthorized,’ as used in OCGA § 32-6-51 (b), to include not

only the placement or maintenance of structures which are prohibited by some statute,

code or local ordinance, but also those that lack any governmental authorization.”

Fortner, 278 Ga. 628 (2).

The motions for summary judgment asserted, inter alia, that the Morrows failed

to present evidence to support their claim that the Shrubbery lacked the requisite

authorization. It is axiomatic that

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.

5 (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a)

(697 SE2d 779) (2010).

In response to RCG’s motion for summary judgment, the Morrows argued that

“governmental authorization or lack thereof, is not a prerequisite for liability under

this statute”; in other words, the Morrows asserted that they were only required to

show that a hazard existed. But in response to the summary judgment motion of

Angkawijana and IMAEX, the Morrows apparently conceded that they had the

burden to show that the Shrubbery was governmentally unauthorized and argued that

“[m]aintenance of the shrubbery so as to constitute a traffic hazard is not authorized.”

More specifically, they argued that the Shrubbery in this case was unauthorized

because it obstructed the line of sight (the “sight line”) from Crestridge Court onto

Crestridge Drive at the Intersection in violation of the Gwinnett County Development

Regulations, which they asserted allows landscaping in private developments only if

sight distances as required by the regulations are preserved.1

1 In the Morrows’ response to the Statement of Theory of Recovery filed by Angkawijana and IMAEX, they summarized their argument, as follows, “The landscaping at the intersection of Crestridge Drive and Crestridge Court is unauthorized since it obstructs the sight line at the intersection.”

6 The trial court held two hearings on the summary judgment motions. At the

first hearing, the trial court asked the Morrows’ counsel to identify the evidence they

had on the issue of authorization, and the counsel responded the shrubbery was

unauthorized “if it impairs the sight line,” and no second level of unauthorization is

required. At the second hearing, the Morrows’ counsel stated that they believed that

“the question of unauthorized is inapplicable, but even if it is applicable, we filed a

Gwinnett County regulation that said that you can maintain shrubbery as long as

provided sight distance required by these regulations are preserved.”2

The trial court ultimately found that the Morrows failed to establish a jury

question on the issue of whether the Shrubbery lacked governmental authorization.

We agree, but not for the reasons cited by the trial court.

Although the Morrows’ arguments below shifted slightly with each iteration,

they may be summarized as follows: 1) proof of unauthorization is not an element of

their claim; 2) even if it is an element, the Shrubbery was unauthorized simply

2 To the extent that the Morrows attempt to assert any other basis on appeal to support their claim that the Shrubbery was unauthorized, we will not consider it. It is well settled appellate courts “will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal.” Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 798 (2), n. 3 (697 SE2d 888) (2010). See also Pfeiffer v. Ga. Dept of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002).

7 because it blocked the sight lines; and 3) in any event, this obstruction violated the

Gwinnett County regulations. As discussed above, however, the Fortner decision

clearly holds that proof of governmental unauthorization is an element of a claim

under OCGA § 32-6-51 (b). Further, in that opinion, the Supreme Court expressly

approved this Court’s holding in Town of Register v. Fortner, 262 Ga. App. 507 (586

SE2d 54) (2003), that “a railroad right-of-way . . . constitutes private property and,

thus, an obstruction thereon is not per se unauthorized.” Fortner, 278 Ga. at 628 (2).

Therefore, a plaintiff seeking relief under OCGA § 32-6-51 (b) against a private

landowner must prove something more than that a structure created an obstruction of

the sight line,3 and the Morrows’ argument that the Shrubbery was unauthorized

simply because it blocked the sight lines is without merit.

3 This Court’s initial opinion in Town of Register addressed only the issue of whether the structure violated a statute, rule, or regulation, and not any other basis for a lack of authorization. 262 Ga. App. at 508 (1). The Supreme Court’s majority opinion reversed, holding that the element of unauthorization was not limited to a violation of a statute, rule, or regulation, but was broad enough to encompass any other lack of governmental authorization. Fortner, 278 Ga. at 628 (2). And on remand, this Court did not re-visit the claim under OCGA § 32-6-51 (b), but rather addressed Fortner’s common-law claims. Town of Register v. Fortner, 274 Ga. App. 586 (618 SE2d 26) (2005). Thus, it is unclear what other evidence existed in the record on the lack of authorization.

8 The only other basis the Morrows asserted below to support their claim that the

Shrubbery was unauthorized was their contention that it obstructed the sight line in

violation of the Gwinnett County regulations.4 However, we are unable to review the

merits of the Morrows’ arguments in this regard because they have failed to prove the

Gwinnett County regulations upon which they rely to support their claim. The

Morrows fail to cite us to any certified copy in the record of the Gwinnett County

regulations, and we have found none.5 “It is well established by numerous decisions

of this court that judicial notice can not be taken by the superior court or [the

appellate courts] of city or county ordinances, but they must be alleged and proved.”

4 The Morrows’ counsel also argued below, without citation, that the defendants, and not the Morrows, had the burden of showing that a governmental entity actually authorized the Shrubbery. Although proof of a lack of authorization could require proof of a negative, thus potentially shifting the burden of proof in some cases to the defendant, the Morrows chose to base their claim of unauthorization on an affirmative violation of a county regulation. Thus, they retained the burden of proof on that element. See generally Mayo v. Owen, 208 Ga. 483, 487 (2) (67 SE2d 709) (1951) (shifting burden to prove a negative to defendant who had primary control over the proof). See also OCGA § 24-4-1 under the prior evidence code (currently codified at OCGA § 24-14-1). 5 We note that “[i]t is not the function of this Court to cull the record[, in this case, a 19-volume, 5,000-page record,] on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Guilford v. Marriott Intl., Inc., 296 Ga. App. 503, 504 (675 SE2d 247) (2009).

9 (Citation and punctuation omitted.) Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d

133) (2010). See also Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d

176) (1996). And “[t]he proper method of proving a [county regulation] is by

production of the original or of a properly certified copy. The record contains neither

the original nor a properly certified copy of the [county-promulgated] document

which purportedly contains the provisions which [the Morrows seek] to enforce

judicially.” (Citation and punctuation omitted.) Thorsen, 288 Ga. at 19 (1). See also

former OCGA § 24-7-22 (allowing judicial notice and self-authentication of properly

certified county record).6

Moreover, the Morrows neither alleged a violation of the Gwinnett County

regulations in the Complaint, nor do they cite us to any stipulation from counsel

6 Georgia’s former Evidence Code applies to the motions for summary judgment in this case as they were made, and the hearing on them commenced, before January 1, 2013, even though the trial court issued its orders after that date. See Ga. L. 2011, pp. 99, 214 § 101 (providing that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1, 2013]”). In any event, the result would be the same under OCGA § 24-2-221 of the new Evidence Code, which tracks the language of OCGA § 24-7-22, with the exception that it cites to provisions in the new Evidence Code in place of the former code provisions and it expressly provides that judicial notice may be taken of a “certified copy” of an ordinance or resolution. (Emphasis supplied.) See also Sweeney v. Lowe, __ Ga. App. __ (Case No. A13A2291, decided March 3, 2014) (holding that it would have been error for trial court to have considered municipal ordinance where no certified copy appeared in the record under OCGA §24-2-221).

10 regarding these regulations. Accordingly, this is not a case where the county

regulations “are set forth verbatim in the pleadings or an uncertified copy is attached

to the complaint and the defendant admits the ordinance or regulations in the answer.

. . . “ (Citation and punctuation omitted.) Prime Home Properties, LLC v. Rockdale

County Bd. of Health, 290 Ga. App. 698, 700 (1) (660 SE2d 44) (2008).7

To the contrary, the record clearly shows that the parties never agreed about the

applicable sight line for the Intersection. For example, RCG’s counsel stated at the

first summary judgment hearing that the Gwinnett County regulations provided for

a 350-foot sight line,8 but the Morrows’ attorney disputed that the applicable sight

line was 350 feet and instead asserted it “should be” 390 feet as required in the

7 Additionally, the Morrows’ assertion that Angkawijana, IMAEX, and RCG admitted that the Shrubbery lacked authorization is without merit. The portions of the record the Morrows cite do not support such an assertion. To the contrary, these defendants consistently have maintained that the Morrows have failed to present evidence creating an issue of fact as to the element of unauthorization. 8 Although Angkawijana, IMAEX, and RCG referenced the Gwinnett County regulations in their briefing and argument, these references do not amount to evidence of the content of those regulations or a stipulation of the actual standards. See Latimore v. City of Atlanta, 289 Ga. App. 85, 87 (656 SE2d 222) (2008) (“[A]ssertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summary judgment issue.”) (citation and punctuation omitted); Flippen Alliance for Community Empowerment, Inc. v. Brannan, 267 Ga. App. 134, 136 (1) (601 SE2d 106) (2004) (“It is axiomatic that statements in briefs are not evidence.”) (citation and punctuation omitted).

11 American Association of State Highway and Transportation Officials9 (“AASHTO”)

guidelines discussed by two of the expert witnesses. See generally City of Macon v.

Smith, 117 Ga. App. 363 (160 SE2d 622) (1968) (limiting stipulation to matters

regarding which parties agreed where plaintiff failed to prove municipal ordinance).

To the extent that the Morrows rely upon AASHTO guidelines, we find that

they failed to prove either the content or applicability of any such guidelines. First,

the Morrows have failed to cite to any properly authenticated copy of these guidelines

in the record. See Howell v. Willis, 317 Ga. App. 199, 205 (729 SE2d 643) (2012)

(expert testimony insufficient to establish the contents of a particular code or standard

unless copies are made part of the record); Dayoub v. Yates-Astro Termite Pest

Control Co., 239 Ga. App. 578, 581 (2) (b) (521 SE2d 600) (1999) (“The general rule

[is] that safety codes or rules promulgated by government departments or voluntary

associations for their informative value do not have the force of law” and such

standards “are not admissible without expert testimony to identify, authenticate, and

explain them”) (citation omitted).10

9 We are assuming that references by the Morrows to AASHTO relate to this organization, although it is never defined in the Morrows’ briefing. 10 See generally OCGA §§ 24-9-901 and 24-9-902 (addressing authentication of documents under Georgia’s new Evidence Code).

12 Second, we agree with the trial court that the Morrows failed to establish the

applicability of any AASHTO guidelines to this case. The Morrows neither alleged

nor proved that the applicable Gwinnett County regulations adopted sight lines as set

forth in any AASHTO guidelines, nor did the Morrows establish that the AASHTO

guidelines, which one expert described as “the book that . . . all states use to design

roads,” otherwise had any application to the Intersection in this case. No evidence

exists that the State built the Intersection; to the contrary, the record suggests that the

Intersection was constructed as part of a private development. The Morrows also

failed to establish any other basis for the guidelines to apply to the privately-owned

Property in this case. See Sotomayor v. TAMA I, LLC, 274 Ga. App. 323, 325 (617

SE2d 606) (2005) (physical precedent only) (disregarding AASHTO guidelines in

absence of evidence that such guidelines specifically referenced the construction of

residential parking lots at issue in case). Accordingly, without the requisite proof of

the pertinent portions of the Gwinnett County Development Regulations or the

AASHTO guidelines, we are unable to consider them or any testimony as to their

contents. See Martin v. Johnson-Lemon, 271 Ga. 120, 122 (516 SE2d 66) (1999)

(affirming trial court’s exclusion of and decision not to consider content of county

13 regulations or expert testimony regarding such regulations, where plaintiff failed to

properly prove the regulations).

We conclude, therefore, that once Angkawijana, IMAEX, and RCG pointed to

a lack of evidence showing that the Shrubbery was unauthorized, the burden shifted

to the Morrows to come forward with evidence showing that it lacked governmental

authorization. The Morrows chose to assert that the Shrubbery violated county

regulations and/or AASHTO guidelines, and because they failed to prove those

regulations or guidelines, they failed to establish that any issue of fact exists with

regard to an essential element of their claim under OCGA § 32-6-51 (b) (3).

The Georgia Supreme Court has held that “[e]ach party has a duty to present

his best case on a motion for summary judgment.” Pfeiffer v. Ga. Dept. of Transp.,

275 Ga. 827, 828 (2) (573 SE2d 389) (2002). Thus, the Court “has specifically held

that, in responding to a motion for summary judgment, plaintiffs have a statutory duty

to produce whatever viable theory of recovery they might have or run the risk of an

adjudication on the merits of their case.” (Citation and punctuation omitted.) Id. Here,

the Morrows failed to present evidence in support of their claims of a violation of

OCGA § 32-6-51 (b) (3), and the trial court properly granted the motions of

Angkawijana, IMAEX, and RCG for summary judgment. See HWA Properties, Inc.

14 v. Community & Southern Bank, 322 Ga. App. 877, 885, n. 12 (746 SE2d 609) (2013)

(“A grant of summary judgment must be affirmed if right for any reason, whether

stated or unstated. It is the grant itself that is to be reviewed for error, and not the

analysis employed.”) (citation and punctuation omitted).11

2. The Morrows also appeal the trial court’s grant of RCG’s motion to dismiss

on statute of limitation grounds, but given our holding in Division 1 above, we need

not reach this argument.12

Judgment affirmed. Andrews, P. J., and Dillard, J., concur.

11 The Morrows properly note that the Supreme Court held in Fortner that OCGA § 32-6-51 (b) (3) did not preempt the common law, and thus “[t]o the extent that the common law imposed the duty to prevent vegetation from obstructing vision at a railroad crossing, that duty remains in effect.” 278 Ga. at 627 (1). The same would be true to the extent that the common law imposed the duty to prevent vegetation from obstructing a clear view from any public road to an intersecting road. But the Morrows failed to articulate any such common law claim in the trial court below. Although the Morrows attempt to articulate a basis for such a claim in the appellate briefing , we cannot consider it for the first time on appeal. Pfeiffer, 275 Ga. at 828 (2); Craig, 304 Ga. App. at 798 (2), n. 3. Accordingly, we expressly do not reach the issue of whether a claim of common law negligence could exist under the facts of this case. 12 The Morrows further appealed the trial court’s order granting summary judgment to Weeks Realty Services, Inc., Duke-Weeks Realty Services, LLC, and Weeks Horizon Corporation. But the Morrows reached a settlement with these parties and filed a motion to dismiss them from the appeal, which this Court granted on June 25, 2013. Accordingly, we are not required to address the Morrows’ third enumeration.