author: Eldridge, Judge.

text:
    A01A1931.
    THOMPSON v. ZWIREN et al.
    (561 SE2d 493)
   Eldridge, Judge.

Tracee Thompson, plaintiff, received an adverse verdict in her medical malpractice suit against Jeffrey D. Zwiren, M.D., and Prima Center for Plastic Surgery, P.C., and contends that the timely objected-to jury charge, “plaintiff must present expert medical testimony showing that within a reasonable degree of medical certainty as proven by a preponderance of the evidence that the injury in question was proximately caused by the negligence of the defendant,” was harmful error. Plaintiff moved for a new trial setting out the objected-to charge as a special ground, and the trial court denied the motion for a new trial on this ground. While in a medical malpractice case the burden of proof of proximate cause is by a preponderance of the evidence and while “reasonable degree of medical certainty” and “reasonable degree of medical probability” are not interchangeable terms, the use of “medical certainty” was harmful error.

1. Plaintiff contends that the trial court erred in charging on “reasonable degree of medical certainty’ instead of reasonable degree of medical probability. We agree.

Plaintiff relies on Herr v. Withers, 237 Ga. App. 420, 421-422 (515 SE2d 174) (1999), an ordinary negligence case not involving medical malpractice, where this Court held:

Without question, the standard of proof required to establish that an injury resulted from a defendant’s negligence is a preponderance of the evidence. [Cit.] Unquestionably, that well-recognized standard for civil cases is not the functional equivalent of requiring certainty. [Cits.]; compare Goggin v. Goldman, 209 Ga. App. 251, 253 (433 SE2d 85) (1993) (although medical malpractice actions require proof of causation to a reasonable degree of medical certainty, in negligence cases, as here, the proper standard is a preponderance of the evidence).

Id. at 421. See also Maurer v. Chyatte, 173 Ga. App. 343, 344-345 (3) (326 SE2d 543) (1985) (motor vehicle collision with injuries). In holding that this charge is not appropriate, this Court went on to disapprove four opinions in ordinary negligence cases, which charged on “medical certainty” as to the proximate cause of injuries and which were not medical malpractice cases. In the opinion, this Court cited favorably Goggin v. Goldman, supra, which was a medical malpractice case and which was not disapproved, as were the nonmalpractice cases, but did not involve a jury charge. Goggin v. Goldman, supra, affirmed the denial of a directed verdict holding:

Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.

(Citations and punctuation omitted.) Id. at 252-253.

The standard of proof in a civil case, even a medical malpractice action, is by a preponderance of the evidence. Preponderance of evidence means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. Thus, reasonable medical probability has no greater meaning than a preponderance of the evidence, and the standard of proof is preponderance of the evidence as to medical causation. “Moreover, we note that although we have frequently used the phrase ‘reasonable medical certainty,’ it is neither magic nor particularly helpful. What courts and juries need from medical experts is not a simple recitation of these words, but a realistic assessment of the likelihood that the alleged negligence caused the injury or death.” Abdul-Majeed [v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997), overruled, in part on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 (526 SE2d 609) (1999)].

(Citations and punctuation omitted.) Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 708 (2) (505 SE2d 232) (1998). See also Pilzer v. Jones, 242 Ga. App. 198, 201 (1) (529 SE2d 205) (2000); Sanders v. Cowart, 231 Ga. App. 303, 304 (1) (499 SE2d 103) (1998). None of these medical malpractice cases involved a jury charge containing “medical certainty”; however, there exists no reason why the same requirements as to a jury charge as to standard of proof of causation should not apply in medical malpractice cases as in all other personal injury actions.

In medical malpractice cases, “causation issues can be resolved only by expert medical testimony, standing alone; in which case the testimony sufficient to establish a causal connection must at least show there was a reasonable probability that the negligence caused the injury.” (Citations omitted.) Pilzer v. Jones, supra at 201 (1). “Certainty is not required, but the plaintiff must show probability rather than merely a possibility that the alleged negligence caused the injury or death.” (Emphasis in original.) Abdul-Majeed v. Emory Univ. Hosp., supra at 609.

The charge given in this case, “within a reasonable degree of medical certainty as proven by a preponderance of the evidence that the injury in question was proximately caused,” is inconsistent and self-contradictory with the burden of proof in civil cases, because it appears to require a higher degree of proof, certainty, i.e., absence of doubt instead of a reasonable degree of medical probability by a preponderance of evidence. See Abdul-Majeed v. Emory Univ. Hosp., supra. Webster’s New World Dictionary (2nd ed.) defines certainty as “anything certain; definite fact — of a certainty [archaic] without a doubt.” Black’s Law Dictionary defines certainty as an “[a]bsence of doubt.” Thus, to a juror, a charge containing an instruction that a jury decide proximate cause in a medical malpractice case based upon a reasonable degree of medical certainty mandates a greater standard of proof than a mere preponderance of evidence within a reasonable degree of medical probability. Abdul-Majeed v. Emory Univ. Hosp., supra.

“A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they can not render an intelligible verdict, and requires the grant of a new trial.” (Citations and punctuation omitted.) Clements v. Clements, 247 Ga. 787, 789 (2) (279 SE2d 698) (1981). Thus, we reverse, because the charge was harmful error.

2. Plaintiff’s second enumeration of error was raised for the first time on appeal and will not be considered. Further, Division 1 renders this enumeration moot.

Decided March 12, 2002

Peterson & Harris, Jim N. Peterson, Jr., for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Robert P. Mon-yak, Anna B. Fretwell, for appellees.

Judgment reversed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.

       In Herr v. Withers, supra at 421, the use of a jury charge in a personal injury action that stated, “that in considering expert medical testimony a verdict cannot be formed on speculation or mere possibilities. In order for a plaintiff to recover damages for an injury arising from the negligence of another, it must be shown within a reasonable degree of medical certainty that the injury was the result of the defendant’s negligence. Speculation and possibilities are to be disregarded,” was disapproved. (Punctuation omitted.) See Leslie v. Williams, 235 Ga. App. 657, 659 (2) (510 SE2d 130) (1998) (automobile collision); Johnson v. Cooper, 234 Ga. App. 753, 756-757 (2) (507 SE2d 559) (1998) (same); Royal v. Davis Hauling Co., 164 Ga. App. 409, 410 (2) (297 SE2d 333) (1982) (eye injury from windshield glass broken by flying gravel); Womack v. St. Joseph’s Hosp., 131 Ga. App. 63, 65 (4) (205 SE2d 72) (1974) (fall in hospital tub because of defective grab bar).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A2085.
    HORNE v. THE STATE.
    (561 SE2d 491)
   Mikell, Judge.

Curtis Leon Horne was put on trial before a judge and jury in Richmond County on a charge of aggravated assault. He was represented by counsel. After the close of the state’s case, counsel informed the court that Home wished to change his plea to guilty. On December 10, 1997, the trial judge on the record made a lengthy inquiry into the voluntariness of the plea, accepted the plea, and sentenced the defendant. Horne then moved to withdraw his guilty plea. The trial court held two lengthy hearings on November 16, 1999, and December 14, 1999, at which Horne was not represented by counsel. The trial court entered a written order denying the motion, and Home appealed, again pro se.

In his appeal, Horne raises seventeen enumerations of error, one of which asserts that his conviction should be reversed because he was not informed at the post-trial motion hearing of his right to counsel at that hearing. Under the binding precedent set forth in Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000), we must agree with Horne and remand his case for a rehearing on his motion to withdraw his guilty plea in accordance with the guidelines set forth in Fortson, supra.

1. As a preliminary matter, we note that Horne has filed a motion for production of original evidence and a motion to reverse the judgment of the lower court, which pertain to the exclusion of the post-trial hearing transcripts from the original record. By order of this Court, the appropriate transcripts were obtained to consider the merits of the case, rendering Horne’s motions moot.

2. The record shows that at Horne’s trial, the state presented testimony from the victim, Linda Patricia Utley, that Home severely beat her on August 26, 1997. Three other witnesses also testified on behalf of the state: a police officer at the Medical College of Georgia who observed Utley’s injuries upon her admission to the hospital; a Richmond County police officer who photographed Utley’s injuries; and the Richmond County police officer who photographed Horne’s residence on the night of the incident. After the state rested, Horne changed his plea to guilty.

The hearing on Horne’s motion to withdraw his guilty plea was held beginning on November 16, 1999, and continuing on December 14, 1999. The record shows that Horne represented himself at the hearing and was not informed of his Sixth Amendment right to counsel. “The United States Supreme Court has held that the Sixth Amendment right to counsel in criminal prosecutions applies to every critical stage in a criminal prosecution.” (Citations omitted.) Fortson, supra at 458 (1). In Fortson, our Supreme Court held that the plea withdrawal proceeding is a critical stage of the criminal prosecution. Id. at 459 (1). The Court also found that the application of the harmless error doctrine was inappropriate in cases where the defendant has not been informed of his right to counsel at this critical stage of the prosecution. Id. at 460-461 (2).

As we understand Fortson and prior precedents, they require the presiding judge to inform the defendant on the record (a) that he has a right to the assistance of a lawyer, (b) that if he cannot afford a lawyer, one would be appointed for him, and (c) that it can be dangerous and to his disadvantage to proceed without a lawyer. The presiding judge should then ask the defendant if he wants a lawyer or if he waives his right to have a lawyer. Finally, if the defendant asserts his right to represent himself, the presiding judge should make on the record a finding that the defendant knowingly and intelligently waived his right to counsel. See generally Council of Superior Court Judges, Ga. Superior Court Benchbook, § 4.12 at 4-5, 4-6 (July 1995); Uniform Superior Court Rule 33.2.

We note that Fortson was announced on June 12, 2000, several months after the post-trial hearings at issue here. Thus, we are cognizant of the fact that the trial court’s responsibilities with respect to the right to or waiver of counsel at plea withdrawal hearings were not clear when the hearings occurred. However, new rules for the conduct of criminal prosecutions “[must] be applied retroactively to all cases, state or federal, pending on direct [appeal] or not yet final. . . .” Griffith v. Kentucky, 479 U. S. 314, 328 (III) (107 SC 708, 93 LE2d 649) (1987). Consequently, since no inquiries or findings were made by the trial judge as to Horne’s right to or waiver of counsel, we are constrained to remand this case to the trial court for a rehearing on Horne’s motion to withdraw his guilty plea, which shall be conducted in conformity with the guidelines set forth in Fortson.

Decided March 12, 2002.

Curtis L. Horne, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. We do not address Horne’s other enumerations of error at this time.

Judgment reversed and case remanded.

Blackburn, C. J., and Pope, P. J., concur.


author: Andrews, Presiding Judge.

text:
    A01A2191.
    KATZ v. HOSPITAL AUTHORITY OF RABUN COUNTY.
    (561 SE2d 858)
   Andrews, Presiding Judge.

Dr. Daniel Katz appeals from the trial court’s grant of summary judgment on his claim that the Hospital Authority of Rabun County (Hospital) improperly revoked his emergency room privileges. The trial court found that the unrebutted evidence in the record was that although Katz’s emergency room staffing contract had been terminated, his professional privileges were not revoked. Although the trial court’s finding was a correct statement of fact, it did not support the grant of summary judgment. Accordingly, for the following reasons, we reverse.

The facts in this case, viewed in the light most favorable to Katz, as nonmovant, are as follows. The Hospital hired Dr. Katz to work in its emergency room on July 6, 1998. A year later, Dr. Kathy Eas-terling, the Hospital’s chief of staff, called a meeting to discuss Katz’s performance as an emergency room physician. As a result of this meeting, Easterling sent Katz a letter stating that “We, therefore, under Medical Staff Bylaws 5.3-3 (c) are revoking your emergency room staff privileges as of this date.” The letter went on to inform Katz that he had a right to request a hearing to appeal this action. The chairman of the Hospital also sent Katz a letter on that same date, stating that in light of the revocation of his emergency room privileges, his contract with the hospital to perform services as an emergency room doctor was terminated.

Katz hired an attorney and requested a hearing and also requested copies of emergency room charts, complaints, and other materials relied on by the committee. A hearing was set for August 6, 1999, but was cancelled at Katz’s request.

At some point, Dr. Easterling acknowledged that her letter was in error when it stated that Katz’s emergency room privileges were revoked. The Hospital agreed that under the section of the bylaws referred to in the letter, it should have stated that the committee was recommending that Katz’s emergency room privileges be revoked.

Katz filed suit, claiming that the executive committee’s meeting at which his emergency room privileges were revoked violated his rights under the Hospital’s bylaws. Katz claimed the committee failed to provide him with written copies of complaints, failed to conduct a hearing after proper notice, failed to provide him with information needed to defend himself against complaints, failed to provide him with a written report after the hearing, and failed to get a two-thirds vote of the medical staff affirming the recommendation before forwarding the recommendation to the Hospital. Katz claimed that his contract to provide emergency room services was terminated based upon this ultra vires action of the executive committee. The complaint also requested a temporary restraining order requiring the Hospital to reinstate his contract and emergency room privileges.

The trial court found that the Hospital, acting through the executive committee, failed to follow the procedure required by its bylaws and enjoined the Hospital from revoking Katz’s emergency room privileges “unless and until it begins anew the § 5.3-1 et seq. process.” The court refused Katz’s request for an injunction preventing the Hospital from terminating his contract to staff the emergency room.

The Hospital filed a motion for summary judgment, reiterating that Easterling’s letter mistakenly informed Katz that his emergency room privileges had been revoked when actually the committee had only recommended revocation. Because Katz had not followed administrative procedure, that is, an appeal hearing with the executive committee, no further action had been taken and Katz’s emergency room privileges were not revoked. The motion also argued that Katz was not entitled to damages because he did not exhaust the administrative appeal process provided by the bylaws.

The trial court found that issues of material fact remained to be tried on this claim and denied the Hospital’s motion for summary judgment. The trial court granted the Hospital’s motion for summary judgment on the contract termination claim and that issue is not being appealed.

The parties were preparing for trial when the Hospital filed another motion for summary judgment, again stating that Katz’s emergency room privileges had never actually been revoked. This time, the trial court granted the motion, found that it did not need to reach the issue of privilege, also argued in the motion, because the undisputed evidence was that Katz’s emergency room privileges had not been revoked. The court then granted the Hospital’s motion for summary judgment.

Decided March 12, 2002.

Christopher L. Casey, for appellant.

Charles L. Clay, for appellee.

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). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

We agree that the evidence in the record shows that Katz’s emergency room privileges were never actually revoked. That does not deprive him, however, of a valid claim against the Hospital for failing to follow its own bylaws. That Easterling later claimed that Katz’s privileges were not actually revoked is a distinction without a difference. The committee met and took action, resulting in the letter to Katz and the Hospital stating that his privileges were revoked. This resulted in the action taken by the Hospital to terminate Katz’s contract to provide emergency room services.

It is undisputed that the committee meeting which produced the letter was not even remotely in accord with the requirements of the Hospital’s bylaws. Indeed, there appear to be issues of fact as to whether the people present and voting at the meeting were all members of the executive committee.

A hospital has a legal duty to follow its existing bylaws, and the violation of that duty is actionable under OCGA § 51-1-6. St. Mary’s Hosp. &c. v. Radiology Professional Corp., 205 Ga. App. 121, 127 (421 SE2d 731) (1992). Katz’s claim for damages arises from the Hospital’s failure to follow its bylaws and the unauthorized action taken as a result of this failure. Accordingly, the trial court erred in granting the Hospital’s motion for summary judgment.

Judgment reversed.

Eldridge and Miller, JJ, concur.


author: Phipps, Judge.

text:
    A01A2368, A01A2369.
    BIXBY v. THE STATE (two cases).
    (561 SE2d 870)
   Phipps, Judge.

Angela and Howard Bixby were tried by a jury and convicted of conspiracy to defraud the State and theft by taking. They appeal separately. In Case No. A01A2368, Angela Bixby claims that the trial court erred by (1) ruling that testimony by the Bixbys’ civil attorney on a limited matter would waive entirely the attorney-client privilege, (2) allowing two witnesses to offer opinions based on inadmissible hearsay and (3) allowing the State’s expert to express his opinion on the ultimate issue in the case. She also claims that her trial counsel was ineffective for failing to object to the admission of certain evidence and for failing to request a limiting instruction from the court regarding the jury’s consideration of bad character evidence. In Case No. A01A2369, Howard Bixby repeats the claims asserted by Angela Bixby and asserts additional claims that the Bixbys’ trial counsel was ineffective.

At trial, the State presented evidence that Angela and Howard Bixby, through their company, Action Non-Emergency Transportation Company (Action), engaged in Medicaid fraud by submitting false billing reports for amounts in excess of $1 million. The allegedly fraudulent reports were discovered when the Department of Medical Assistance (DMA), the State agency responsible for administering the Medicaid program, conducted an audit of documents submitted by Action in late 1994. The Bixbys denied any wrongdoing and claimed that any “extra money” made by Action was the result of problems with the DMA’s billing system.

Case No. A01A2368

1. At trial, the Bixbys planned to call their civil attorney as a witness to ask him about one matter — a visit he made with the Bixbys to the DMA in November 1994. The trial court ruled that any testimony by the civil attorney beyond the fact that he represented the Bixbys would waive the attorney-client privilege entirely. The Bixbys did not object and, based on the court’s ruling, decided not to have their attorney testify.

Angela Bixby claims that the trial court erred by its ruling and that her civil attorney could have testified about one particular matter without waiving the attorney-client privilege as to all other matters. But the Bixbys never objected to the court’s ruling and instead acquiesced in it. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” Thus, we find nothing to review on this issue.

2. Angela Bixby claims that the trial court erred by allowing two of the State’s witnesses, Bobby Stephens and David Walker, to offer opinions based on inadmissible hearsay, which consisted of the investigation and audit report prepared for the DMA. Bixby never raised an objection to Stephens’s testimony about the DMA audit results. She therefore waived the right to raise that issue on appeal.

Even if the issue had not been waived, Stephens, a special agent for the Georgia Bureau of Investigation (GBI) who was assigned to the State Health Care Fraud Control Unit, offered no opinions but merely described the GBI’s investigation of Action and the fact that it began as a referral from the DMA.

Walker testified that he was an auditor for the Georgia Department of Audits, that he worked in the State Health Care Fraud Control Unit and that he was selected to perform an audit of Action in 1995. He was qualified as an expert in auditing procedures for the DMA. During his testimony, he read portions of the results of the DMA audit report, which was admitted into evidence without objection. Walker made it clear that the DMA audit report had nothing to do with his analysis and that he was reading directly from the DMA’s summary. Thus, he did not offer any opinions based on the DMA audit report. Moreover, the DMA audit report was not inadmissible hearsay. It was admitted into evidence, and one of the auditors who performed the audit testified about how it was conducted. Thus, we find no merit to Bixby’s claim that Walker offered opinions based on hearsay.

3. Angela Bixby claims that the trial court erred by allowing Walker to testify about excess billing found in the DMA audit. She claims that this went to the ultimate issue in the case, whether Action overbilled the State for medical transportation services.

Bixby relies on OCGA § 24-9-65, which provides that opinion evidence is generally inadmissible on issues as to the existence of a fact. She argues that the following testimony violated this rule:

THE STATE: And what were the mileage results?
WALKER: Okay. Reading again directly from the Department of Medical Assistance’s summary, 346 (89%) of transactions examined were billed for excessive mileage.

Pretermitting whether “billing of excessive mileage” was the ultimate issue in the case, we find that Walker was not offering his opinion by reading from the DMA audit summary. Moreover, as he specifically stated, the DMA’s audit summary had nothing to do with his analysis. The trial court did not err by allowing this testimony.

4. Angela Bixby claims that her trial counsel was ineffective for failing to object to the admission of three types of evidence and for failing to request a limiting instruction from the court to guide and limit the jury’s consideration of “the bad character evidence, alleged independent crimes.” But she fails to support any of her ineffectiveness claims with a specific reference to the 431-page record, the 1,146-page transcript or any of the 3,628 pages of exhibits. In the absence of such reference, we will not search for or consider those claims.

Case No. A01A2369

5. Howard Bixby asserts the same claims as those asserted by Angela Bixby in her appeal. The Bixbys were tried together and represented by the same counsel at trial. Thus, we resolve his identical claims as set forth in Divisions 1 through 4 above.

6. Howard Bixby asserts six additional claims of ineffective assistance of counsel. He claims that his counsel was ineffective for failing to present evidence showing that (1) the State did not have authority to prosecute him, (2) the DMA had already withheld reimbursement of amounts reflected in the records used by the State’s expert witness, (3) the DMA’s excess mileage formula was improper, (4) he was denied due process on three occasions and (5) he was sentenced unfairly. He also claims that his counsel should have objected to the racial composition of the jury pool.

To establish ineffectiveness of trial counsel, Bixby must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The test for reasonable attorney performance is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .’ ” We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(a) Bixby argues that Medicaid funds never lose their federal character and that any theft of Medicaid funds would be a theft of federal, not state, funds. Thus, he argues, only the federal government has the authority to prosecute claims of Medicaid fraud. He claims that his trial counsel was ineffective for failing to raise this issue.

The Medicaid program, codified in 42 USC § 1396 et seq., Title XIX of the Social Security Act, as amended, authorizes federal grants to states for medical assistance to certain qualified persons. The program is jointly financed by the federal and state governments and administered by the states. Title XIX provides for the designation of a single state agency to administer or supervise the Medicaid program in each state. The Department of Community Health, formerly the DMA, was designated to fulfill that function in Georgia. It is unlawful for any provider knowingly and willingly to accept payments under the Georgia Medicaid program to which the provider is not entitled or in an amount greater than that to which the provider is entitled, or to knowingly and wilfully falsify any report required by the program. The State has authority to prosecute persons who violate this provision.

Bixby was indicted for taking state money in the control of the DMA by submitting or causing to be submitted fraudulent claims for reimbursement for transportation services. The State was entitled to prosecute him on those charges. Bixby’s counsel was not ineffective for failing to raise this implausible claim.

(b) Bixby appears to claim that his counsel was ineffective for failing to present evidence showing that the DMA withheld four of Action’s checks pursuant to its audit and that the State’s expert witness, Robert McCleskey, testified about the same audit at trial. In fact, Howard Bixby testified that in late 1994 Action supplied the DMA with business records covering a two-week period so that the agency could conduct an audit and that, pursuant to the audit, the DMA withheld four reimbursement checks worth about $61,000. McCleskey testified that he worked for the DMA in 1994 and that he was asked in late 1994 and early 1995 to conduct an audit of the same business records supplied by Action. Thus, evidence was presented showing that the DMA withheld money from Action pursuant to its 1994 audit and that McCleskey was testifying about the same audit. Bixby has shown no deficiency in his counsel’s performance.

(c) Bixby claims that his counsel was ineffective for not presenting evidence showing that the DMA’s formula for calculating excess mileage was improper.

McCleskey testified that, in his audit, he compared the number of miles Action reported for a particular trip to the actual map miles. To determine the map miles, he measured the straight line distance between the two points and added fifty percent to it. During cross-examination, the Bixbys’ counsel challenged McCleskey on the use of this formula. Counsel also challenged the DMA’s use of the formula during his cross-examination of Walker and of Wayne Blank, the director of the DMA’s division of legal and regulatory services. Bixby has not shown that his counsel’s performance was deficient.

(d) Bixby claims that his counsel was ineffective for failing to present evidence that he was denied his right to due process on three occasions: (1) when the DMA withheld four checks pursuant to its 1994 audit; (2) when, during execution of a search warrant at the Bixbys’ residence, GBI investigators seized cash from their bedroom and (3) when the Bixbys were required to post bond. Bixby has failed to show that the alleged errors had any impact on his trial, much less the required showing that “counsel’s [alleged] errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.”

(e) The Bixbys were both given five-year sentences on Count 1 (conspiracy to defraud the State) and ten-year sentences on Count 2 (theft by taking). They were sentenced to serve five years on Count 1 and three years on Count 2 (consecutive to Count 1) in prison, and the balance on probation. Bixby claims that his counsel was ineffective for failing to present evidence that he was sentenced contrary to law.

Bixby’s conviction of conspiracy to commit a felony requires that his punishment by imprisonment be “for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed. . . .” The maximum sentence for Medicaid fraud is ten years, thus Bixby’s sentence on Count 1 was legally imposed.

A person convicted of theft by taking property valued in excess of $500 shall be punished by imprisonment for not less than one nor more than ten years. Bixby’s sentence of ten years, to serve three, was within the legal range of punishment for his offense.

Decided March 12, 2002.

Jeffrey P. Manciagli, for appellant (case no. A01A2368).

Howard Bixby, pro se (case no. A01A2369).

David McDade, District Attorney, Thurhert E. Baker, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Ben L. Leutwyler III, Michael D. Johnson, Assistant Attorneys General, for appellee.

Because the sentences were legally imposed, Bixby’s counsel could not have made a plausible argument that they were contrary to law. Thus, counsel’s failure to challenge the sentences did not constitute ineffective representation.

(f) Finally, Bixby claims that his counsel was ineffective for failing to object to a jury pool that included only one African-American. He argues that he was entitled to a jury composed of a cross-section of the community.

Bixby was entitled to a jury selected from a list that represented a fair cross-section of the community and that was not the product of intentional racial or sexual discrimination. Bixby has not pointed to any evidence of intentional discrimination that his counsel could have introduced except whatever inference may be drawn from the composition of his jury panel. “[D]e facto discrimination is not shown by evidence that a single jury panel contained a disproportionately small percentage of African-Americans compared to the population at large. [Cit.]” Bixby has failed to show that his counsel’s performance was deficient.

Judgments affirmed.

Smith, P. J, and Barnes, J., concur.

       (Citations and punctuation omitted.) Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530) (1989).

        Priester v. State, 249 Ga. App. 594, 598 (3) (549 SE2d 429) (2001); In the Interest of H. D. M., 241 Ga. App. 805, 808 (2) (527 SE2d 633) (2000).

       Compare Brown v. State, 206 Ga. App. 800, 801 (427 SE2d 9) (1992).

       Court of Appeals Rule 27 (c) (3) (i); Mann v. State, 244 Ga. App. 756, 761 (9) (536 SE2d 608) (2000).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       Id. at 687-689.

       (Citations omitted.) Stansell v. State, 270 Ga. 147, 150 (2) (510 SE2d 292) (1998).

        Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

       42 CFR § 430.0.

       42 CFR § 431.10.

       OCGA §§ 49-4-142; 49-4-143.

       OCGA § 49-4-146.1 (b) (2).

       OCGA § 49-4-146.1 (c).

        Strickland, supra at 687 (III).

       OCGA § 16-4-8.

       OCGA § 49-4-146.1 (c).

       OCGA § 16-8-12 (a) (1).

        Cook v. State, 255 Ga. 565, 573 (11) (340 SE2d 843) (1986).

       See id.

        Pryor v. State, 231 Ga. App. 136, 137 (1) (497 SE2d 805) (1998).


text:
    A02A0216.
    JONES v. BANK OF AMERICA MORTGAGE.
    (561 SE2d 867)
   Mikell, Judge.

Freddie L. Jones brought a wrongful foreclosure action against Bank of America Mortgage, seeking to set aside the foreclosure sale, to recover general damages, punitive damages, and attorney fees, and to obtain a declaratory judgment vesting title to the real property in Jones. The trial court granted summary judgment to BAM, and Jones appeals. For the reasons set forth below, we affirm.

Viewed in a light most favorable to Jones, as the nonmovant, the evidence shows that in 1990, Jones assumed a promissory note executed in favor of BAM’s predecessor in interest in the amount of $65,650. The note was secured by a deed to secure debt covering certain real property in Decatur. Under the terms of the deed, payments were due on the first day of each month. Paragraph 13 of the security deed provided that time was of the essence of the agreement, and that if Jones failed to pay the indebtedness when due, or to abide by the terms of the promissory note or the deed,

the entire indebtedness hereby secured shall immediately become due, payable and collectible without notice,. . . and [BAM] may sell said property at auction ... at the courthouse in the county where the land lies, ... to the highest bidder for cash, first giving four (4) weeks notice ... of such sale, by advertisement once a week in a newspaper. . . .

In addition, Jones’s predecessors in title executed a waiver of rights form, acknowledging the lender’s right to accelerate the debt and to conduct a nonjudicial foreclosure sale upon the borrower’s default.

An account activity statement reveals that Jones made numerous late and irregular payments on the loan. On June 7, 1999, BAM’s legal counsel, Morris, Schneider & Prior, LLC, sent Jones a notice, pursuant to the Fair Debt Collection Practices Act, that it had been retained to collect the loan. The letter informed Jones that the lender would no longer accept any payments or communications from him.

Notwithstanding receipt of this letter, Jones tendered the June payment to BAM on June 26, 1999, including a returned check fee and a late charge. The tender was rejected. On July 8, 1999, Jones wrote the law firm a letter disputing that the loan was in arrears and requesting verification of the debt. The first weekly advertisement of the foreclosure sale was published on that date.

On July 15, 1999, the law firm sent Jones a letter notifying him that the lender was accelerating the debt and instituting foreclosure procedures under the power of sale contained in the security deed. On July 20,1999, Jones resubmitted the June payment and tendered a payment for July. In a letter addressed to BAM’s foreclosure department, Jones denied the lender’s claim that he was several months in arrears.

Decided March 12, 2002.

Giddens, Davidson & Mitchell, Earl A. Davidson, for appellant.

Morris, Schneider & Prior, Larry W. Johnson, for appellee.

The foreclosure sale was held on August 3,1999. BAM purchased the property for $68,384.16. Jones initiated a wrongful foreclosure action, and the trial court granted summary judgment to BAM.

1. In his first enumeration of error, Jones contends that a genuine issue of fact remains as to whether he had defaulted on the terms of the note at the time the lender accelerated the debt. We disagree.

The gravamen of Jones’s argument is that the affidavits that he and his wife, Callie Jones, filed in response to the summary judgment motion create a genuine issue of material fact by stating that the loan was not in default and that the lender had accepted all payments until June 1999. Contrary to Jones’s argument, in the absence of substantiating facts, the affidavits are self-serving and conclusory and are therefore insufficient to create an issue for trial. Hobbs v. Western Surety Co., 247 Ga. App. 658 (544 SE2d 729) (2001). The business records and affidavits submitted by the lender in support of its motion conclusively demonstrate that Jones defaulted on his obligation to pay each monthly installment when due.

2. In his second enumeration of error, Jones contends that the trial court erred in granting summary judgment to BAM because it failed to provide him with notice of foreclosure by certified mail, return receipt requested, as required by OCGA § 44-14-162.2 (a). As Jones failed to raise this issue prior to the entry of the trial court’s order on March 5, 2001, it is deemed waived. Rucker v. Wynn, 212 Ga. App. 69, 71 (2) (441 SE2d 417) (1994). Moreover, Jones’s affidavit denying receipt of said notice, which Jones submitted on April 3, 2001, as part of his motion for reconsideration, was not timely filed pursuant to OCGA § 9-11-56 (c). Buffington v. Gold Kist, 179 Ga. App. 393, 394 (346 SE2d 577) (1986).

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       Bank of America Mortgage and its predecessors in interest are collectively referred to as “BAM.”

       See Rapps v. PHH US Mtg. Corp., 220 Ga. App. 602, 603 (2) (469 SE2d 731) (1996) (“any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment”).


text:
    A02A0932.
    GARCIA v. GREPLING et al.
    (561 SE2d 868)
   Phipps, Judge.

Anthony Garcia was severely injured after Charles Grepling and Kevin Lanterman attacked him without provocation at a high school party. As a result, Garcia brought this action against Grepling and Lanterman seeking a recovery of damages for injuries sustained in the assault. Garcia also named Grepling’s father as a defendant, charging him with liability under a theory of negligent supervision of his minor son. The trial court awarded summary judgment to Grepling’s father, finding insufficient evidence to support imposition of liability against him under the above theory. We agree and affirm.

“It is well settled that by common law and in this state unless changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship [;] when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.” [Git.]

“ ‘Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party. [Cits.]’ [Cit.]” “In those cases in which the parent did not furnish the dangerous instrumentality to the child, the standard for imposing liability upon a parent for failing to prevent the child’s action is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. [Cits.]”

In this case, it is undisputed that Grepling’s father neither furnished him with, nor permitted him access to, any dangerous instrumentality with which to commit the assault upon Garcia. Garcia’s argument is that the father may be held liable because he was put on notice of a dangerous proclivity or propensity by his son to commit such an assault. According to Garcia, such notice was provided to the father as a result of two prior incidents resulting in his son’s suspension from school. In our opinion, the undisputed facts underlying the two prior incidents were insufficient to charge Grepling’s father with knowledge of a propensity to engage in the “specific dangerous activity” resulting in Garcia’s injuries. Both Grepling and another student involved in the first incident were suspended from school after the other student challenged Grepling to a fight which he accepted by knocking the other student to the ground and then walking away. In the second incident, Grepling was suspended for pushing one student, spitting on another, and using foul language and inappropriate gestures during the taping of a video for a student project. Because these incidents consisted of rather typical schoolyard altercations in which no one complained of any injuries, knowledge of them was insufficient to charge the father with vicarious liability for the tor-tious conduct of his son here.

Decided March 12, 2002.

Devlin & Robinson, Marvin A. Devlin, Rebecca C. Smith, for appellant.

Carter & Ansley, Keith L. Lindsay, Robert Altman, for appellees.

Because the undisputed facts of this case entitle Grepling’s father to judgment as a matter of law, the trial court did not err in granting his motion for summary judgment.

Judgment affirmed.

Andrews, P. J., and Mikell, J, concur.

        Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726) (1989).

       Id. at 329-330.

       Id. at 330; see Gellner v. Abrams, 194 Ga. App. 455, 456 (1) (390 SE2d 666) (1990); but compare Smith v. Brooks, 247 Ga. App. 831 (545 SE2d 135) (2001) (indicating that parents may be held liable for the torts of their minor child where they knew of the child’s proclivity or propensity for the specific dangerous activity and through negligence either furnished a dangerous instrumentality to the child or allowed the child access to it).


author: Miller, Judge.

text:
    A01A1734.
    HIGGINS v. FOOD LION, INC.
    (561 SE2d 440)
   Miller, Judge.

Evangelist Higgins sued Food Lion, Inc. for personal injuries sustained when he slipped and fell in the produce department of the store. Food Lion moved for summary judgment, which the trial court granted. As Higgins has failed to establish actual or constructive knowledge on the part of Food Lion, 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). We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997); see Matthews v. The Varsity, 248 Ga. App. 512 (546 SE2d 878) (2001).

Viewed in this light, the record shows that Higgins slipped and fell as he walked by the produce section of a Food Lion store, causing his shopping cart to fall on top of him. A store employee helped Higgins up, and when Higgins looked down, he saw a few white seedless grapes mashed underneath his feet.

In order to recover for injuries from a slip and fall,

an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). Constructive knowledge may be established by showing that (1) a store employee was in the immediate vicinity and had an opportunity to correct the hazardous condition before the fall, or (2) that the substance had been on the floor for a sufficient length of time for knowledge to be imputed to the proprietor. Wentworth v. Eckerd Corp., 248 Ga. App. 94, 95 (545 SE2d 647) (2001).

Although there was no evidence of actual knowledge of the hazard on the part of Food Lion, Higgins contends that there was constructive knowledge in that a cashier and manager could have seen and removed the grapes. Even though Higgins first stated that the cashier saw him fall and therefore could have seen the grapes, he later admitted that the cashier was facing in the opposite direction of the produce section but could have easily turned around, and that he did not know whether she was looking at him when he fell. Higgins also initially stated that a manager saw him fall, but when further questioned, Higgins stated that he assumed the assistant manager saw him fall because the manager was in a position where he could look over the entire store. This is insufficient to establish that an employee was in the immediate vicinity. See Wentworth, supra, 248 Ga. App. at 95 (an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility). Moreover, Food Lion presented an affidavit of a store employee who stated that the cashiers in the store were not facing the produce department and therefore could not have easily seen and removed the grapes, and neither could an employee in the store office which was located on a side of the store opposite the produce department. Even if Higgins had established that an employee was present, “showing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” (Punctuation and footnote omitted.) Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866-867 (2) (a) (502 SE2d 738) (1998); see Matthews, supra, 248 Ga. App. at 513 (1). In this case, Higgins has not shown that a store employee was in the immediate area, and he therefore cannot show constructive knowledge on this basis.

Decided February 22, 2002

Reconsideration denied March 13, 2002.

Randall A. Schmidt, for appellant.

Howard & Whatley, Thomas G. Whatley, Jr., John C. Adams, for appellee.

Higgins may still establish constructive knowledge by showing that the substance had been on the floor for a sufficient length of time for knowledge to be imputed to the store. Wentworth, supra, 248 Ga. App. at 95. To withstand a motion for summary judgment, “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” (Citations omitted.) Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998). The evidence must establish an adherence to customary inspection and cleaning procedures on the day in question and not simply that such procedures exist. Ingles Markets v. Martin, 236 Ga. App. 810, 812 (513 SE2d 536) (1999). Food Lion’s perishables manager stated that it was store policy to inspect the produce department for foreign substances constantly and immediately clean up or remedy any potential hazard. He further stated that in accordance with store policy, he personally inspected the area where Higgins fell approximately 35 minutes prior to the incident, and that at that time the area and the floor were clean and free of debris. Thus, the evidence established that just prior to the incident, Food Lion conducted an inspection. Higgins, however, has presented no evidence of how long the grapes had been on the floor and even stated that he could not tell how long the grapes had been present at the time of his fall.

As Higgins was unable to establish that Food Lion had either actual or constructive knowledge, the trial court did not err in granting summary judgment in favor of Food Lion. See Roberson v. Winn-Dixie Atlanta, 247 Ga. App. 825, 826 (544 SE2d 494) (2001); Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 352 (496 SE2d 471) (1998).

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A01A1886.
    STANCLIFF et al. v. BROWN & WEBB BUILDERS, INC.
    (561 SE2d 438)
   Pope, Presiding Judge.

In 1996, Ned and Mary Stancliff purchased a house in Alpha-retta. Brown & Webb Builders, Inc. (“B&W”) built the house and sold it to its original residents, who in turn sold it to the Stancliffs. After moving into their home, the Stancliffs noticed water seeping into the residence around the doors, and the doors and windows began to warp. The Stancliffs suspected the problem was related to the home’s synthetic stucco cladding. An inspection revealed that the house was constructed with a type of synthetic stucco cladding known as an Exterior Insulation and Finish System (“EIFS”), which was improperly installed. Further inspection and repair revealed extensive water damage.

The Stancliffs sued B&W, its principals, and Precision Plastering, Inc., the EIFS installer. They claimed B&W was negligent in constructing the home, supervising its subcontractors, and failing to adhere to industry standards. B&W moved for summary judgment and introduced the affidavit of its principal officers stating that the house was constructed by independent contractors, not B&W, and that the principal officers did not supervise the independent contractors or know of any defects in the home. In response to B&W’s motion for summary judgment, the Stancliffs introduced the affidavit of an inspector showing that the Stancliffs’ residence had suffered damage due to the improper installation of the EIFS, including the failure to install a diverter or flashing on the roof in accordance with the applicable construction code, among other defects in construction. They also submitted the affidavit of Ned Stancliff, who affirmed that the inspection report generated before the Stancliffs purchased the home did not notify them that the house was constructed with an EIFS or that the EIFS was defective. Relying on the affidavits submitted by B&W’s officers, the trial court granted B&W’s motion for summary judgment, and the Stancliffs appeal. We reverse because genuine issues of material fact remain for the trier of fact.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

The Stancliffs claim that the trial court erred in its order granting summary judgment by relying on Dunant v. Wilmock, Inc., 176 Ga. App. 48 (335 SE2d 162) (1985), and in finding Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719 (470 SE2d 283) (1996), among other authority, to be inapplicable. We agree that the trial court erred in granting summary judgment to B&W.

We find Seely to be controlling. There, a homeowner sued a builder for negligence in connection with a pipe leak. The builder claimed that the plumbing subcontractors were at fault, and that it had exercised no control or supervision over them. We found, however, that “since the builder-seller holds himself out as having the ability and expertise to build a fit and workmanlike residence, he cannot escape liability simply by claiming that an independent contractor he hired was wholly responsible for the negligent work.” 220 Ga. App. at 720-721 (1). We had previously noted that, otherwise, “ [i] t would be too easy for a builder-seller of a house to avoid liability by hiring inexperienced crews, providing little or no supervision, and then claiming the culprit of any negligence was an independent contractor.” Hudgins v. Bacon, 171 Ga. App. 856, 862 (5) (321 SE2d 359) (1984). See also Washington Road Developers v. Weeks, 249 Ga. App. 582 (549 SE2d 416) (2001).

As a builder, the law provides that B&W has undertaken “to build a fit and workmanlike house and has held himself out as having the ability to do it.” Hudgins, 171 Ga. App. at 863 (5). The Stan-cliffs’ complaint alleges B&W has breached this duty through the negligent construction of the home and negligent supervision and hiring of the contractors and employees involved in the construction of the home. The affidavits and other material submitted by B&W’s officers fail to address the breach of duty alleged in the complaint. Affidavits indicating that the subcontractors performed their work without B&W’s supervision do not show that B&W fulfilled its duty as an ordinarily prudent builder to exercise “direction and control to build a fit and workmanlike structure.” Seely, 220 Ga. App. at 721 (1). The Stancliffs, for their part, came forward with evidence that there was a latent defect in the house of which they were not aware at the time of purchase and, as untrained laymen, could not be expected to detect. They also presented affidavits showing that the EIFS was installed contrary to the specifications of the Georgia State Minimum One and Two Family Dwelling Code then in effect. See OCGA § 8-2-20 et seq.

Determination of negligence is normally a matter for the jury. See Ragsdale Heating & Air Conditioning v. Terrell, 245 Ga. App. 866, 867 (539 SE2d 199) (2000). B&W does not show that no material facts remain for the trier of fact.

Dunant is distinguishable. In that case the negligence claim against the builder involved a latent defect in a home’s septic tank system. The septic tank system was installed by a subcontractor, and the builder’s president affirmed that the builder took no part in the planning or construction of the septic tank system and had no knowledge of any defects in the system. Dunant, 176 Ga. App. at 48-49. But the county health department had specified the type and size of the septic tank system to be installed on the property, issued a permit for it, and had inspected and approved the work after completion. Id. The facts showed no breach of duty by the builder in connection with the septic tank. See Hall v. Richardson Homes, Inc., 168 Ga. App. 593 (309 SE2d 825) (1983). Here, there is no governmental entity assuming a comparable role in connection with the installation of the EIFS. B&W also argues that Seely and Hudgins can be distinguished because those actions were brought by the original purchaser; however, a negligence claim does not depend upon privity of contract. See Ramey v. Leisure, Ltd., 205 Ga. App. 128, 132 (3) (421 SE2d 555) (1992).

Decided February 18, 2002

Reconsideration denied March 13, 2002

Charles F. Peebles, Lane R. Frostbaum, for appellants.

Downey & Cleveland, George L. Welborn, Mozley, Finlayson & Loggins, Douglas G. Smith, Jr., for appellee.

Material issues of fact remain, and the trial court erred in granting summary judgment to B&W The trial court’s grant of summary judgment to B&W on the issue of attorney fees must also be reversed as it was granted in contemplation of summary judgment on the merits.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A2223.
    THOMAS v. THE STATE.
    (561 SE2d 444)
   Phipps, Judge.

Gilbert Thomas was charged in one indictment with making ter-roristic threats and burglary and, in a separate indictment, with theft by taking. The cases were tried together, and a jury found him guilty on all charges. On appeal, he claims that the evidence was insufficient to support the verdicts and that the trial court erred by denying his motion to sever the indictments, by prohibiting his counsel from using prior criminal convictions to impeach a witness and by admitting hearsay. Thomas also claims that his counsel was ineffective because he kept Thomas from testifying in his own defense and because he failed to introduce evidence in mitigation of sentencing. We find that the evidence was sufficient to support the verdicts and find no merit in Thomas’s remaining claims. Thus, we affirm.

1. Thomas challenges the sufficiency of the evidence to support his convictions. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. Under Jackson v. Virginia, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The owner of Airport Taxi Service testified that on March 17, 1999, one of his blue and white taxis with “Southside Taxi” written on the side was not returned after the driver’s shift. Over a hearsay objection, he testified that he received a call from Thomas’s sister-in-law, who informed him that Thomas was driving the taxi. When he reported the stolen taxi to the police, he gave them the sister-in-law’s name and telephone number. He testified that he knew Thomas but had not given him permission to use the taxi.

The State introduced a written statement given by Thomas’s sister-in-law to Bulloch County Investigator Deal in which she stated that Thomas drove into her yard at 7:30 a.m. on March 17 in a taxi with the same markings as the taxi missing from Airport Taxi Service. In response, Thomas introduced a written statement in which his sister-in-law said that Deal had coerced her into writing the prior statement. Deal testified at trial and denied using coercion or force to obtain the statement. One of Thomas’s friends also testified that Thomas drove to his house in a taxi on the morning of March 17.

Cathy Collins testified that she had known Thomas for about six years and that Thomas and his girlfriend, Katina Weaver, had lived with her in the past. She testified that sometime between 11:00 and 12:00 on the evening of March 17, Thomas “snatched” her locked door open, came in and started yelling for Weaver. At the time, Collins was sleeping in the bedroom with her four children and a friend, Jimmy Collins, was sleeping on the living room couch. When Collins responded that she did not know where Weaver was, Thomas threatened to “beat her ass.” As she reached for the telephone, he grabbed it and pulled it out of the wall. Thomas continued to use profanity and woke up Collins’s children, who began crying. After Thomas left, Collins saw a blue and white taxi driving away from her house. She testified that she had not invited Thomas to her house that evening.

Jimmy Collins testified that he spent the night at Cathy Collins’s house because he had consumed too much alcohol. He said that he was awakened at about 1:00 or 2:00 a.m. on March 18 when the “front door came flinging open” and Thomas walked in and asked for Weaver. When he and Cathy Collins told Thomas that Weaver was not there, Thomas told Cathy Collins “I’ll get you” or words to that effect.

Thomas argues that the evidence presented was a “sui generis hodgepodge of ipse dixits.” Peculiar or not, we find that the evidence was sufficient for the jury to find beyond a reasonable doubt each of the essential elements of the crimes for which Thomas was convicted.

Theft by taking is the unlawful taking of any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken. The testimony of the taxicab owner and of Thomas’s friend and the statement by his sister-in-law to the police provided sufficient evidence to prove this offense. The credibility of the statements made by Thomas’s sister-in-law was for the jury to determine, and it chose to believe her statement to the police.

A person commits burglary when, without authority and with the intent to commit a felony therein, he enters or remains within the dwelling house of another. A terroristic threat is a threat to commit any crime of violence with the purpose of terrorizing another or in reckless disregard of the risk of causing such terror. No person shall be convicted of making a terroristic threat on the uncorroborated testimony of the threatened party.

Here, the testimony of Cathy Collins and Jimmy Collins was sufficient to establish that Thomas entered Cathy Collins’s house without permission with the intent to commit a felony, making a ter-roristic threat, and that he actually made such a threat. The corroboration necessary to convict for making a terroristic threat “need only be that amount of independent evidence which tends to prove that the incident occurred as alleged.” If there is any evidence of corroboration, we will not go behind the jury verdict and rule on its probative value. Jimmy Collins’s testimony provided sufficient corroboration for a rational trier of fact to find Thomas guilty beyond a reasonable doubt of making terroristic threats to Cathy Collins.

2. Thomas claims that the trial court erred by denying his motion to sever the indictments.

A trial court has discretion to conduct a joint trial on two separate indictments “[w]here the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” The underlying consideration in this situation is “whether undue or great risk of prejudice from a joint disposition of charges would result.”

Here, the evidence showed a series of acts connected together — Thomas took the taxi early on the morning of March 17 and used it that evening to drive to Cathy Collins’s house, where he committed the burglary and made the terroristic threats. We find that the trial court did not abuse its discretion by denying Thomas’s motion to sever.

3. Thomas contends that the trial court erred by refusing to allow him to impeach Cathy Collins with certified copies of her prior convictions.

The issue arose because the State filed a motion in limine seeking to preclude Thomas from mentioning or soliciting from a witness the fact that any witness had been accused or convicted of a crime until a properly certified copy of the conviction was admitted into evidence to impeach the witness. Thomas’s counsel informed the court that he had certified copies of two prior convictions of Cathy Collins. The trial court granted the State’s motion, but did not rule on whether the certified copies would be admissible. Instead, the court instructed Thomas’s counsel to approach the bench when he wanted to introduce the convictions and said that it would address their admissibility at that time.

Thomas sought permission from the court to address Cathy Collins’s character during his opening argument. He did not, however, seek to introduce the prior convictions or request that the trial court rule on their admissibility. Thus, we have nothing to review on this claim.

4. Thomas claims that the trial court erred by admitting the hearsay statement of the Airport Taxi Service owner regarding bis receipt of a call from Thomas’s sister-in-law about the missing cab. “Assuming that it was error to admit the statement, the error is harmless where other competent evidence is available as to the same fact.” The hearsay was cumulative of the written statement that Thomas’s sister-in-law gave to the police and did not affect the verdict.

5. Thomas filed a motion for new trial, claiming that his counsel was ineffective in numerous respects. After conducting a hearing, the trial court denied his motion. On appeal, Thomas raises only two ineffectiveness claims — his counsel refused to allow him to testify at trial and failed to introduce evidence to mitigate his sentence.

To establish ineffectiveness of trial counsel, Thomas must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The test for reasonable attorney performance is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .’ ” We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(a) At the motion for new trial hearing, Thomas testified that he had told his trial counsel repeatedly that he wanted to testify and that his counsel had strongly advised him against it. Trial counsel testified that he had told Thomas that he had the right to testify and that Thomas had told him he did not want to testify. He denied ever discouraging Thomas from testifying.

Although a criminal defendant has a constitutional right to testify in his own defense, the decision whether to testify is considered to be a tactical one to be made by the defendant after consultation with his counsel. Based on the testimony at the motion for new trial hearing, the trial court was authorized to conclude that Thomas was not denied his right to testify and was therefore not denied effective assistance of counsel.

(b) Thomas testified at the motion for new trial hearing that he had positive life experiences, such as holding one job for fourteen years, being married previously and having two children, one of whom had graduated from college. He had wanted to introduce this evidence in mitigation of his sentence, but his trial counsel had told him that the information was immaterial. Trial counsel testified that he had introduced the limited information he was given in an attempt to mitigate Thomas’s sentence. He said that he had obtained conflicting evidence about Thomas’s employment, living arrangements and other matters. Counsel recalled that Thomas was living behind a building, that he had five children who were living with his mother, that he had worked on a shrimp boat and that he was a mechanic, but that he was unemployed most of the time counsel represented him. Counsel also testified that while he was presenting argument in mitigation of sentencing, including the fact that Thomas had five children who would be harmed if he was sentenced to a lengthy term, Thomas interrupted him, as he had done throughout the trial.

Decided February 26, 2002

Reconsideration denied March 13, 2002.

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

In aggravation of punishment, the State introduced certified copies of prior convictions for armed robbery and robbery. The State also asked the court to consider Thomas’s conduct during trial, including the fact that he continually made loud comments during witness examinations and closing arguments in an attempt to disrupt the proceedings and to testify without taking the stand.

Although Thomas testified that his counsel could have presented evidence of a stable work history and successful parenting, his counsel had arguably conflicting evidence on those same issues. And Thomas failed to show how any such mitigating evidence would have changed the sentence entered by the trial court. “Thus, he has failed to carry his burden of showing that he was prejudiced by trial counsel’s performance.”

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Newman, supra.

       Supra.

       The parties stipulated to the admission of both statements without Thomas’s sister-in-law’s testimony.

       OCGA § 16-8-2.

       See generally Havron v. State, 234 Ga. App. 413, 414 (1) (506 SE2d 421) (1998) (witness credibility is for the jury to determine).

       OCGA § 16-7-1.

       OCGA § 16-11-37 (a).

       Id.

       (Citations and punctuation omitted.) Scott v. State, 225 Ga. App. 729, 732 (3) (484 SE2d 780) (1997).

       Id.

       See id.

       (Citations and punctuation omitted.) Smith v. State, 199 Ga. App. 410 (2) (405 SE2d 107) (1991).

       (Citation and punctuation omitted.) Id.

       Cf. Carver v. State, 203 Ga. App. 197, 204 (1) (416 SE2d 810) (1992).

       See Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991) (where trial court is not asked to rule on admissibility of evidence, there is nothing to review).

        Simmons v. State, 271 Ga. 563, 567 (4) (c) (522 SE2d 451) (1999).

       Id.

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       Id. at 687-689.

       (Citations omitted.) Stansell v. State, 270 Ga. 147, 150 (2) (510 SE2d 292) (1998).

        Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

        Barron v. State, 264 Ga. 865, 866 (2) (452 SE2d 504) (1995).

       Id.; see Lovelace v. State, 241 Ga. App. 774, 776 (3) (a) (527 SE2d 878) (2000).

       (Citations omitted.) Pace v. State, 239 Ga. App. 506, 510 (7) (521 SE2d 444) (1999).


text:
    A01A1654.
    GILLISON v. THE STATE.
    (561 SE2d 879)
   Pope, Presiding Judge.

Paul Gillison appeals following his convictions for simple battery and obstruction of an officer. We affirm.

1. Gillison first contends that there was insufficient evidence to support his conviction on the obstruction charge. He argues that while his actions may have constituted a simple assault, they did not obstruct or hinder police.

Viewed in the light most favorable to support the verdict, the evidence showed that on September 24,1999, Officer Brian Nessmith of the Savannah Police Department responded in uniform to a call indicating that there had been a disruption at a bar in the City Market area of Savannah. He found Gillison lying facedown on the ground with plastic flexi-cuifs on. Gillison was shouting obscenities and appeared very agitated. Officer Nessmith put his own cuffs on Gilli-son and snipped the flexi-cuffs off. As he helped Gillison to his feet, Gillison attempted to pull away. Officer Nessmith then leaned Gilli-son against a door and placed his shoulder in Gillison’s back while he called for backup.

When the other officers arrived and Officer Nessmith began to escort Gillison to his patrol car, Gillison kicked behind him toward the officer, saying, “Til break your f-g leg, f-g cop!” Officer Nessmith had to move out of the way to avoid being kicked. The officers then put Gillison facedown so he could not kick anyone.

Under OCGA § 16-10-24 (b), “[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony. . . .” Even verbal acts may be sufficient to constitute an offer of violence under the statute if such words can be interpreted as a threat of violence. Arnold v. State, 249 Ga. App. 156, 159 (1) (b) (545 SE2d 312) (2001). Moreover, any act that directly tends “to interfere with, interpose obstacles or impediments, hinder, impede, interrupt in any manner, or prevent or pervert the public administration of justice constitutes obstruction of the police in performing their lawful duty.” (Citations and punctuation omitted.) Ballew v. State, 245 Ga. App. 842, n. 1 (538 SE2d 902) (2000).

Here, Gillison threatened violence when he said that he intended to break a police officer’s leg. And the jury could have found that that statement, in conjunction with his attempts to kick the officers, tended to hinder and impede their efforts to secure him before putting him in a patrol car. After first sitting him down on the curb, they were forced to put him facedown on the pavement so that he could not kick anyone. And although Gillison was restrained by handcuffs at the time, his feet were still free to kick. In fact, Officer Nessmith had to move out of the way to avoid a kick.

Accordingly, we find that there was sufficient evidence to authorize a rational trier of fact to find beyond a reasonable doubt that Gil-lison was guilty of felony obstruction. Arnold v. State, 249 Ga. App. at 159 (1) (b); Burge v. State, 243 Ga. App. 673 (534 SE2d 132) (2000).

2. Gillison next asserts that the trial court erred in failing to include a charge on simple assault, which he contends was his sole defense, despite the fact that no such charge was requested.

It is error for a court to refuse to charge on an accused’s sole defense, even without a request to charge, where there is some evidence to support the defense. Rogers v. State, 247 Ga. App. 219, 222 (4) (543 SE2d 81) (2000). Assuming, without deciding, that a lesser included offense can be a “sole defense,” the lesser included offense of simple assault was not Gillison’s sole defense. Indeed, his counsel never argued assault at trial but instead argued for the lesser included offense of misdemeanor obstruction. He asserted that Gilli-son’s actions, although a hindrance to police, could not have been an offer of violence because he was restrained at the time.

Therefore, we find no error in the trial court’s failure to charge on assault. See Williams v. State, 217 Ga. App. 709, 710 (1) (458 SE2d 892) (1995).

3. Gillison further argues that the trial court erred in his charge by referring to the lesser included offense of obstruction as “misdemeanor obstruction” and referring to the charged offense as “felony obstruction.”

The use of such a distinction is not favored under Georgia law. Green v. State, 206 Ga. App. 539, 541 (2) (426 SE2d 65) (1992); Cater v. State, 176 Ga. App. 388 (336 SE2d 314) (1985). And our courts have often found error, albeit harmless error, whenever the terms “felon/’ or “misdemeanor” are employed in a jury charge. See, e.g., id.; Johnson v. State, 261 Ga. 236, 239-240 (5) (404 SE2d 108) (1991). But the use of this terminology is not always improper. Rather, it is appropriate to review the jury instructions in the context of the crimes charged to determine whether the trial judge has impermissi-bly strayed into the realm of punishment rather than the mere classification of a crime. See Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605) (1990). In fact, there are times when defining these terms may be necessary to define the crime charged such as where the offense depends upon the commission of another crime, as in the case of felony murder under OCGA § 16-5-1 (c) or involuntary manslaughter under OCGA § 16-5-3 (a).

In this case, the two offenses are both termed “obstruction,” and it is apparent that the terminology adopted by the trial participants was for ease of reference and not for purposes of distinguishing punishment. The trial court did not elaborate to the jury on the difference between a felony and a misdemeanor, and the jury made no inquiry as to punishment. Accordingly, “[t]here is nothing in the record to demonstrate that the jury’s verdict of guilty was impermis-sibly based on a consideration of punishment rather than on a consideration of the elements of the offense. . . .” (Citation and punctuation omitted.) Freeman v. State, 214 Ga. App. 425, 426-427 (1) (448 SE2d 465) (1994).

Moreover, the misdemeanor obstruction was referred to as a lesser included offense. And the principal distinction between the two offenses is that felony obstruction requires an act or offer of violence. With this information alone, the jury could have inferred the relative length of punishment between the two offenses: “[T]he relative severity of punishment was already clearly implied, as a matter of common sense. To reverse because the judge labeled one crime a ‘misdemeanor’ when the jury knew that it was a ‘lesser offense’. . . would be to ignore the obvious.” Cater v. State, 176 Ga. App. at 389.

Therefore, we find that the use of this terminology by the trial court was not error under the circumstances of this case. See Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000); Fletcher v. State, 197 Ga. App. at 113 (3). See generally Dennis v. State, 220 Ga. App. 420, 421 (4) (469 SE2d 494) (1996).

4. Gillison next contends that he received ineffective assistance of trial counsel. Under Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), Gillison must meet a two-prong test for evaluating a claim of ineffectiveness of counsel: “The defendant must show (1) that his attorney’s representation was deficient; and (2) that the deficient representation prejudiced his defense, i.e., that a reasonable probability exists that but for the ineffective representation the result of the proceeding would have been different. Both prongs must be proved.” (Citations omitted.) Forsman v. State, 239 Ga. App. 612, 616 (8) (521 SE2d 410) (1999).

(a) Gillison first contends that his trial counsel failed to understand his sole defense: that Gillison was guilty only of the lesser included offense of simple assault, not felony obstruction.

But this argument is simply that Gillison’s trial counsel should have pursued a different trial strategy in an attempt to obtain a misdemeanor sentence, and it is well settled that such an argument will not support a claim for ineffective assistance of counsel:

[T]rial strategy and tactics do not equate with ineffective assistance of counsel. . . . Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.

(Footnote omitted.) Lewis v. State, 249 Ga. App. 488, 491 (2) (548 SE2d 457) (2001).

Moreover, as we have held that the evidence was sufficient to find Gillison guilty of felony obstruction, Gillison cannot establish a reasonable possibility that the outcome of his trial would have been different but for his trial counsel’s failure to argue for the lesser included offense of simple assault instead of the lesser included offense of misdemeanor obstruction.

For these reasons, Gillison’s contention that his trial counsel should have requested a charge on simple assault also must fail.

(b) Gillison also asserts that the trial attorney failed to follow a consistent theory of defense and that he failed to adequately prepare for trial. He contends that some of the arguments his trial counsel pursued in opening statement differed from those of his closing statement, and he attacks some of his trial counsel’s decisions during trial.

These arguments also address matters of trial strategy. At the hearing on the motion for new trial, the trial attorney testified that Gillison insisted upon testifying against his trial counsel’s advice. Once on the stand, Gillison admitted many of the actions alleged against him. Thus, the trial counsel testified that he was left with very little defense. Given these facts, it is not unreasonable that the trial attorney may have had to shift the theory of defense as the testimony developed.

The evidence also showed that Gillison called his trial counsel every week from prison and they discussed his case. And the attorney previously had represented Gillison at his probation revocation hearing and thus was familiar with the evidence against him. We find that Gillison has failed to establish that his counsel’s performance was deficient with regard to adequate trial preparation. See generally Bogan v. State, 249 Ga. App. 242, 244-245 (2) (a) (547 SE2d 326) (2001).

Decided March 13, 2002

Jackson & Schiavone, Steven L. Sparger, for appellant.

Accordingly, Gillison’s argument on this ground must fail.

(c) Gillison next argues that his trial counsel should have moved to excuse a juror who worked as a juvenile probation officer and who previously worked as a certified police officer for the Chatham County Sheriff’s Office. While this juror might have been subject to excusal for cause under the facts of this case, Gillison’s trial counsel made a conscious decision to retain him because he knew the juror to be fair and impartial: “I know him personally from Juvenile Court. ... I wanted that juror because I knew him to be a fair and impartial person. I knew that he knew the court system, he knew about different crimes, and I thought he would be a person who could explain it better to the jurors. . . .”

Again, while Gillison and his current counsel may disagree with this decision, it is one of strategy and does not support a claim of ineffective assistance of counsel. We will not judge counsel’s trial strategy by hindsight or result: “In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy. Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.” (Citations and punctuation omitted.) Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

(d) Gillison asserts that his trial counsel also should have objected when the state’s attorney and the trial court in this case used the misdemeanor/felony distinction when discussing the two kinds of obstruction charges. In fact, Gillison’s counsel himself adopted this distinction. The failure to object to the terminology did not constitute inadequate representation. We have found that the use of this terminology by the trial court was not error under the circumstances. And Gillison has failed to establish a reasonable probability that the outcome of his trial would have been different if his counsel had objected.

(e) Gillison next contends that his trial attorney failed to reserve objections to the trial court’s charge. But the trial transcript clearly shows that the attorney did, in fact, reserve his objections. Thus, this argument is without merit.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

       Under that subsection, “[a] person . . . commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.” (Emphasis supplied.)

       That subsection reads: “A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” (Emphasis supplied.)


text:
    A01A1844.
    ISHAK v. LANIER CONTRACTORS SUPPLY, INC.
    (561 SE2d 883)
   Phipps, Judge.

Lanier Contractors Supply, Inc. (Lanier), a building supply company, provided home construction materials to two corporate home builders, Ovel Development Company (ODC) and Ovel Enterprises, Inc. (OEC). Because payment was not made for materials supplied, Lanier sued ODC, OEC, and several home buyers on open account and for foreclosure of materialmen’s liens.

Lanier added Itimar Kleinberger (president and sole shareholder of ODC and OEC) and Anosh Ishak (vice president and sole employee of ODC) as defendants and charged them with liability for the corporations’ debts under the theory of “piercing the corporate veil.” Following a nonjury trial, the court granted Lanier the relief sought against the individual defendants and awarded attorney fees to Lanier under OCGA § 13-6-11. Ishak appeals. He contends that piercing the corporate veil was not authorized, and he complains of the amount of the fee award. Finding no error or abuse of discretion by the trial court, we affirm.

1. “The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility.”

In order to disregard the corporate entity because a corporation is a mere alter ego or business conduit of a person, it should have been used as a subterfuge so that to observe it would work an injustice. To prevail based upon this theory it is necessary to show that the shareholders disregarded the corporate entity and made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.

“There must be evidence of abuse of the corporate form.” “The evidence must be such that to adhere to the doctrine of corporate entity would promote injustice or protect fraud.”

Testimony given by a former officer and employee of ODC, along with supporting documentation, showed that during the pendency of this litigation Ishak conveyed one of the corporation’s primary assets to himself without payment of adequate consideration to the corporation and appropriated corporate funds to his own personal use. The trial court could interpret this evidence as establishing that Ishak abused the corporate form, disregarded the corporate entity, and made the corporation a mere instrumentality for transacting his own affairs. The evidence also authorized the court to find that corporate assets were siphoned into the pockets of both Kleinberger and Ishak, leaving the corporation without means to pay its debts. Where those who own or control a corporation have brought about such a unity of interest and ownership as between themselves and the corporation, the unpaid corporate creditor may look to them for satisfaction of the corporation’s debts.

2. Ishak argues that attorney fees should not have been awarded under OCGA § 13-6-11 because there was a bona fide controversy between Lanier and ODC as to amounts due for material delivered. Ishak also claims that the fee was awarded in an amount not supported by the evidence. We disagree.

OCGA § 13-6-11 authorizes a jury to award expenses of litigation “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . .” In this case, there is evidence that ODC acted in bad faith by automatically discontinuing all payments to Lanier for materials supplied upon the filing of a materialmen’s lien, even though some payment was indisputably due. Moreover, Ishak caused Lanier unnecessary trouble and expense by helping strip the corporation of assets after suit was filed. The court based the amount of the fee award on documentation showing the tasks performed by counsel and the hourly charge, together with expert testimony concerning the reasonableness of the overall fee. The weight to be given this evidence was a matter for the trial court to determine. The fee awarded was authorized by the evidence.

Decided March 13, 2002.

Ronald K. Woods, for appellant.

Miles, McGoff & Moore, Dana B. Miles, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       (Citation and punctuation omitted.) Fuda v. Kroen, 204 Ga. App. 836, 837 (1) (420 SE2d 767) (1992).

       (Citations and punctuation omitted.) Summit-Top Dev. v. Williamson Constr., 203 Ga. App. 460, 463 (3) (416 SE2d 889) (1992).

       (Citations omitted.) Soerries v. Dancause, 248 Ga. App. 374, 375 (546 SE2d 356) (2001).

       (Citations and punctuation omitted.) NEC Technologies v. Nelson, 267 Ga. 390, 397 (5) (478 SE2d 769) (1996).

       See id.; J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 460 (1) (462 SE2d 406) (1995).

       See Summit-Top Dev., supra; see also Johnson v. Lipton, 254 Ga. 326 (328 SE2d 533) (1985).


author: Johnson, Presiding Judge.

text:
    A01A2033.
    FOXCHASE, LLLP et al. v. CLIATT.
    (562 SE2d 221)
   Johnson, Presiding Judge.

This is an appeal from the trial court’s denial of motions for directed verdict and judgment notwithstanding the verdict. Because there is some evidence to support the challenged verdict, the appeal is without merit and the judgment of the trial court is affirmed.

In 1994, James Day contracted with Bilberry Golf, Inc. to construct a golf course in Harris County. Golf Design Services International, Inc. was hired to provide plans and specifications for the course. Lisa Maki, the owner and president of Golf Design, developed the plans and specifications and supervised work on the course. Bilberry Golf completed its construction in 1995, although other work to prepare the course for play was still necessary.

Day was unable to complete the remaining work, and Harris County issued him a stop work order for violations of the county ordinance governing soil erosion and sediment control. In 1996, Day conveyed the golf course property to Mike Bilberry, Sharon Leevers and Jack Leevers, who are partners in Foxchase, LLLP. Bilberry and the Leeverses planned to deed the golf course to Foxchase immediately, but did not do so until 1998.

In the meantime, Bilberry helped persuade the county to lift the stop work order and continued having work done on the course by Bilberry Golf, Golf Design and Maki. In 1997, the county issued other stop work orders.

Throughout the construction of the golf course, William Cliatt, who owns property adjacent to the course, complained about damage to his property. Two creeks flow through the golf course and onto Cliatt’s property. Because of the construction, excess water, sediment, sand and debris flowed into the creeks. This excess flow eroded the creek beds and banks and damaged Cliatt’s property.

Cliatt sued, among others, Foxchase, Bilberry, the Leeverses, Golf Design and Maki for negligence, trespass and nuisance. The case was tried before a jury, which returned a verdict in favor of Cliatt for damages and attorney fees. The jury apportioned the damages, finding each defendant liable for a specific amount. Foxchase, Bilberry, the Leeverses, Golf Design and Maki jointly appeal from the judgment of the trial court. They argue that the trial court erred in denying their respective motions for directed verdict and j.n.o.v.

We review the denial of both a motion for directed verdict and a motion for j.n.o.v. under the “any evidence” standard. Under this standard, we must construe the evidence in the light most favorable to the party who obtained a verdict, and if there is any evidence to support the verdict, we will not disturb it. Contrary to the arguments of the appellants, there is some evidence to support the verdict against them.

1. Foxchase, Bilberry, the Leeverses, Golf Design and Maki all argue that the court should have granted them j.n.o.v. on the ground that Day created the nuisance, so they cannot be held liable for it. While Day was the owner of the property when the nuisance originated, there is other evidence from which the jury could have found that Foxchase and Bilberry and the Leeverses, who have owned the property, and Golf Design and Maki, who worked on the course, later contributed to the nuisance. Even though they did not create the nuisance, they may be held liable for contributing to or maintaining it.

2. Foxchase, Bilberry, the Leeverses, Golf Design and Maki all argue that they are entitled to j.n.o.v. on the issue of attorney fees because there is no evidence that they acted in bad faith. Bad faith warranting an award of attorney fees must arise out of the transaction on which the cause of action is predicated, and it may be found in how the defendant acted in his dealing with the plaintiff

There is evidence in the instant case that, while in control of the golf course, Foxchase, Bilberry and the Leeverses failed to take appropriate action to alleviate the damage being caused to Cliatt’s property. And there is evidence that Maki, the owner of Golf Design, erroneously held herself out as a licensed landscape architect and wrote misleading letters to county inspectors in an attempt to avoid responsibility for erosion control.

The jury was authorized to find that Foxchase, Bilberry, the Leeverses, Golf Design and Maki acted in bad faith in failing to properly correct the excess flow of water and debris that was damaging Cliatt’s property. The trial court therefore did not err in sustaining the award of attorney fees to Cliatt.

3. Foxchase, Bilberry and the Leeverses argue that they cannot be held liable for the golf course nuisance because they never got notice to abate the nuisance. The argument is unpersuasive.

The evidence shows that when his property was first damaged, Cliatt initially complained to Day, Bilberry Golf and various governmental agencies. In 1997, after Day had conveyed the golf course to Bilberry and the Leeverses, the attorney for their Foxchase partnership sent a letter to Cliatt stating that he was representing the partners.

Cliatt wrote back to the attorney, asking that a proper plan be followed to curtail the flow of water and debris from the golf course. The attorney did not respond to the letter, so Cliatt sent him another letter, stating that his creek situation was worsening each day and asking if Bilberry was going to fix the situation. The attorney sent a subsequent letter telling Cliatt that he could discuss the matter with him or file a lawsuit.

The jury was authorized to find that Foxchase, Bilberry and the Leeverses had notice of the nuisance and that Cliatt had requested that it be abated.

4. Bilberry and the Leeverses claim that they cannot be held personally liable because they were partners in the limited liability partnership of Foxchase. This claim ignores the facts that the golf course was not conveyed to Foxchase until 1998, that from 1996 to 1998 Bilberry and the Leeverses owned the golf course and that there is evidence of damage to Cliatt’s property while they were the golf course owners. The jury could have found Bilberry and the Leeverses liable for damage that occurred when they, not the partnership, owned the course.

5. Bilberry, Golf Design and Maki argue that the respective awards against them constitute improper double recoveries. Bilberry notes that he cannot determine from the verdict form if he was held liable in his capacity as an individual, as a Foxchase partner or as a shareholder in Bilberry Golf. Likewise, Maki speculates that she and Golf Design may have been held separately liable for the same conduct.

One damaged by the tort of a corporate agent may sue the individual agent, the corporation or both. Cliatt therefore properly sued Bilberry and Golf Design and Maki, and the jury could have found them all liable in their separate capacities for separate acts. Beyond speculation about the verdict, Bilberry, Golf Design and Maki have not shown that they excepted to the verdict form when it was returned, they have not pointed to any evidence in the record that the verdict constitutes double recoveries and they do not argue that the verdict amounts exceed the damages proved.

Decided March 13, 2002

Marchetti & Lomax, Robert R. Lomax, for appellants.

Richard A. Childs, for appellee.

“Presumptions favor the validity of verdicts and a construction, if possible, will be given which will uphold them.” Here, it is possible to construe the verdicts as properly apportioning damages against the defendants in their various capacities. Absent any showing to the contrary, we find that the trial court correctly construed the verdict.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Crump v. McDonald, 239 Ga. App. 647, 648 (1) (520 SE2d 283) (1999).

        Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997); Crump, supra.

       See West v. CSX Transp., 230 Ga. App. 872, 873-876 (498 SE2d 67) (1998).

       See OCGA § 13-6-11.

        CSX Transp. v. West, 240 Ga. App. 209, 211 (3) (523 SE2d 63) (1999).

       See Ponce de Leon Condo. v. DiGirolamo, 238 Ga. 188, 190 (2) (232 SE2d 62) (1977).

       See CSX Transp. v. West, supra at 212 (3).

       See OCGA § 41-1-5; West v. CSX Transp., supra at 872-873 (1), 876 (3) (b).

       See OCGA § 14-8-15 (b).

        Smith v. Hawks, 182 Ga. App. 379, 384 (4) (355 SE2d 669) (1987).

       (Punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 164 (1) (e) (473 SE2d 256) (1996).