text:
    A94A0566, A94A0567.
    MILLER et al. v. RIESER et al.; and vice versa.
    (446 SE2d 233)
   Beasley, Presiding Judge.

Joscelyn Rieser was born on June 21, 1982, of Mary and Ray Rieser. Since 1987, when she reached age five, Joscelyn has lived in Atlanta with her maternal grandmother Rosalind Miller. The Riesers are divorced, and Mary resides in California. In August 1991, Mary came to Atlanta and announced she was taking nine-year-old Joscelyn back to California.

Course of the litigation

On August 19, 1991, the grandmother filed a petition against the parents, seeking permanent custody of the child and asking that the parents be temporarily restrained and enjoined from removing her from the custody of the grandmother or the jurisdiction of the court. She alleged that the parents are unfit custodians; that they failed to meet the child’s physical, mental, and emotional needs; and that they lost parental power under OCGA § 19-7-1 (b) (3) and (b) (6) by their failure to provide necessaries, by abandonment, and by cruel treatment. The court granted the temporary restraining order. The grandmother later amended her petition by adding a request .that she be granted visitation for an extended period each year if the court declined to give her custody.

A guardian ad litem was appointed to represent the child’s interests, on the father’s motion, and the parents moved for summary judgment based on the evidence of record. The court denied the parents’ motion on the issue of whether parental control had been lost under OCGA § 19-7-1 but granted it on the issue of parental fitness, concluding that there was no genuine issue of material fact as to the present unfitness of either parent. In an order denying reconsideration of this ruling, the court distinguished other appellate cases which involved past behavior of parents towards the child which related to present unfitness and concluded that the evidence in this case was not comparable.

Following a lengthy trial, the court entered final judgment on July 29, 1993. It states that the grandmother seeks custody under OCGA § 19-7-4 as well as § 19-7-1 (b) (3) and (b) (6). The court confirmed the summary judgment on the issue of present unfitness, found that the child had not been legally abandoned by the parents, and found that it had not been established by clear and convincing evidence that they failed to furnish necessaries or are chargeable with cruel treatment so as to have lost parental power. However, the court did find that it is in the child’s best interest to spend significant time with the grandmother. Until August 1, 1994, she was granted visitation with the child several hours each Monday and Wednesday, every other weekend, and four consecutive weeks during the summer. The court ordered the mother to remain with the child in the Atlanta area at least until the beginning of August 1994. In the event she and the child subsequently move more than 150 miles from Atlanta, the grandmother is granted visitation for five consecutive weeks during the summer and parts of holidays.

We granted the grandmother and the guardian ad litem’s application for discretionary appeal of the summary judgment for the parents on the issue of parental fitness. Case No. A94A0566 is their appeal of that order. Case No. A94A0567 is the parents’ appeal of the court’s grant of visitation to the grandmother. Most of the trial record, but not the transcript of the trial, has been transmitted to this court.

Evidence

Since the issue in the grandmother’s and guardian ad litem’s appeal is whether summary judgment was proper for the defending parents, the evidence is viewed in the light most favorable to the non-moving petitioner. “The party opposing the motion ... is entitled to all favorable inferences and the benefit of every doubt, and the evidence is construed most strongly in its favor. [Cit.]” Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160, 163 (3) (435 SE2d 520)

(1993); see, e.g., Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Although this case has now been tried, albeit not on the fitness issue, we apply this evidence rule to that which was presented to the trial court before its ruling on summary judgment. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); Lawal v. Stanley Bostitch Co., 209 Ga. App. 439, 440 (433 SE2d 706) (1993); Dove v. Nat. Freight, 138 Ga. App. 114, 117 (6) (225 SE2d 477) (1976).

From May 1983, when the child was less than a year old, until September 1984, the parents failed to adequately clothe her in cool weather, so that her feet turned blue. They failed to adequately feed her, so that when she was first taken to visit others, she ate ravenously and gained many pounds. They failed to properly clean her, so that she had eczema behind her ears and sores in her diaper area. They failed to take her to the doctor for well baby check-ups or immunization. They failed to have a laceration suture removed from her knee, causing inflammation and scarring. They failed to see that she got proper rest; she slept for unusually long periods of time at the beginning of each visit with others.

The paternal grandfather is Dr. James Rieser, a family practice physician. When the child was first taken to visit him and his wife, the step-grandmother, she had totally flat affect and did not interact with them, laugh, smile, or speak, although she is a bright child. He opined that she was suffering from a condition known as failure to thrive, which is often the result of lack of parental care and attention. He testified that the father admitted to him that he did not know how to take care of the child.

Although the mother testified that using her training and experience as a nurse, she took care of the child, giving her vitamins and good food, and she was very rarely ill, Dr. Rieser testified that without request, he immunized the child and provided pediatric medical care.

In September 1984, the parents left the child with grandfather Rieser in order to make a trip to California for several months. Shortly after Thanksgiving in 1984, the father took the child to grandmother Miller without any prearranged plans and left her there. She took care of the child until after Christmas, when the mother returned from California. During that month, the father did not care for the child and visited her infrequently. She cried repeatedly for grandfather Rieser and his wife. Beginning in January 1985, the child began staying with grandmother Miller on the weekends and spending the weekdays with her parents. Her parents separated in 1986, and the father moved to California. He did not see or speak to the child again until the summer of 1989. The mother remained in Atlanta. The parents’ 1988 divorce decree makes no provision for the custody or support of the child.

The mother testified that when the child lived with her, she generally would keep her during the day and leave her with babysitters at night. The grandmother testified that one of the babysitters was mentally unstable, had thrown the child on the floor, and had taken her to pornographic movies and to prostitutes. The child likewise testified that the babysitter had hurt her by throwing her on the floor. Her mother laughed when she told her about this.

The child testified that when she and her mother lived together, her mother would be either asleep or at her boyfriend’s house when she awoke in the morning. She was frightened when she awoke and no one was there. She would have to pester her mother in order to get her to make her something to eat, which at times she would not do. When she was at the mission where the mother worked, many times her mother was not there when she got hungry. When that happened, she would beg other people for money, go to the drugstore, and get candy to eat. At night, she would sleep on the floor if she was tired. She would stay at the mission until 1:00 to 3:00 a.m. If her mother was not there, she would ask someone else to take her home. The grandmother testified that she would often find the child running around the mission unsupervised or asleep on the floor, and that upon coming to her house for the weekend, she usually slept the first 24 hours.

In the summer of 1987, the step-grandmother informed the mother that the child had four cavities. The mother said she would take care of it but did not do so. When the child next saw a dentist whom the step-grandmother had taken her to, she had four additional cavities. The step-grandmother paid for fillings.

In the fall of 1987, the grandmother enrolled the child in kindergarten after the mother failed to do it. The child began living with the grandmother and spending weekends with the mother, who picked her up from kindergarten on Friday afternoons. The grandmother pleaded with her to go there on other occasions such as to have lunch with the child or see her perform in a program, but she said she did not have time.

On one occasion, the child got chicken pox, and the grandmother left her in the mother’s care. The mother left her in the care of a teenage boy who neglected her. She called her mother and asked her to come take care of her, but she said she was too busy. On another occasion, she got the flu and the mother again said she was too busy to see her.

In the spring of 1989, the mother moved to California. Afterward, she saw the child only sporadically. The mother sometimes telephoned the child, but sent no presents at Christmas or on her birthday and showed no interest in her development. Beginning in the summer of 1989, the father began to telephone the child, infrequently; he also did not send cards or presents for her birthday, Christmas, or other holidays. While the child lived with the grandmother, she was supported by her grandparents.

A psychologist who has seen the child since May 1990 testified that she is not significantly bonded to her mother and has not bonded at all to her father; that due to her mother’s lengthy pattern of neglecting her physical and emotional needs, she is afraid of leaving her grandmother and returning to her mother; and that if removed from the security and stability of her present environment, she could withdraw, become severely depressed, and regress academically. This psychologist also testified that when a parent has established a lengthy pattern of neglecting the physical and emotional needs of a child, the pattern is unlikely to change and most probably would continue.

The psychologist acknowledged that the child enjoys and wants to see her parents and establish a relationship with her mother, and that she is comfortable with overnight visitation. After this litigation began, a parental visitation schedule was established, and the grandmother testified that it worked well. With this view of the evidence, none of which was conclusively overcome by defendant’s evidence, we confront the current legal issue.

1. The grandmother and the guardian ad litem contend that the court erred in ruling that there is no genuine issue of material fact as to the parents’ present unfitness, based on the evidence of past conduct and likelihood of continuation. In erring, they contend, the court misapplied ruling case law in comparable cases.

“On motion for summary judgment, the burden is on the movant ... to establish the absence of any genuine issue of material fact and its right to [prevail] as a matter of law. OCGA § 9-11-56 (c); Kinney [v. American Mfg. Mut. Ins. Co., 189 Ga. App. 882, 883 (377 SE2d 900) (1989)].” Dixieland Truck Brokers, supra at 163 (3).

Where a third party seeks to obtain custody of a child, the trial court must find by clear and convincing evidence that the parent is presently unfit, Blackburn v. Blackburn, 249 Ga. 689 (292 SE2d 821) (1982), or otherwise not entitled to custody under OCGA §§ 19-7-1 and 19-7-4. In the Interest of C. T. L., 182 Ga. App. 845 (357 SE2d 298) (1987). A determination of unfitness, which is the only question here, must be based on the parent’s present condition, Bozeman v. Williams, 248 Ga. 606, 607 (285 SE2d 9) (1981), and relates to the child’s welfare. Perkins v. Courson, 219 Ga. 611, 617 (2) (135 SE2d 388) (1964).

The parental fitness doctrine is intended to cover cases where a parent has not forfeited or relinquished his or her parental rights by any of the modes prescribed by statute but for some other reason has been shown to be an unfit parent. Perkins, supra at 623 (2). It focuses on a parent’s character, Proctor v. Proctor, 164 Ga. 721 (139 SE 531) (1927), “habits and conduct.” Perkins, supra at 614. Peck v. Shierling, 222 Ga. 60 (148 SE2d 491) (1966), speaks of “unfitness for the trust.”

If summary judgment is ever proper when the challenge is parental fitness, which for one thing is not a jury question, it is not proper here. We doubt its utility on this subject because, to dispose of a case, or in this instance an issue, in this expedient before-trial manner, the undisputed evidence must preclude a finding of unfitness as a matter of law. OCGA § 9-11-56 (c). Although “unfitness” vel non is a question of fact, to reach such a finding inherently requires an application of discretion. It is not like finding the light was red or green, an objective fact, but requires the application of judgment, within certain defined boundaries. Here, were a court to find unfitness, we could not conclude it erred as a matter of law. Likewise, if the evidence recited constitutes the facts in the case, it does not show an absence of evidence to support the non-moving party’s case on the question of fitness, applying the test of Lau’s Corp., supra at 491 and 495. Moreover, because the question of custody is based in part on discretion, summary judgment, which precludes the intangible side of live testimony, is ill-suited for the resolution except in “clear, plain, and palpable cases.” Cf. Lozynsky v. Hutchinson, 159 Ga. App. 715 (285 SE2d 70) (1981).

In this case, there is a long history of character, habits, and conduct showing an unconcerned attitude towards the child, lack of interest and attention, thoughtlessness, failure to understand a child’s basic nurturing needs, and unconcerned reliance on others to fulfill parental responsibility. These bring into question the parent’s priorities when measuring self versus child. Although the history of the relationship and interaction or absence thereof between the parents and the child is relevant to the statutory issues of abandonment, cruel treatment, and failure to provide necessaries, the script written over time by the parents is also relevant to the issue of their present fitness. The statutory grounds focus on the child, whereas the judicially created ground focuses on the parent. Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471) (1981), reiterated that “[a] finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent . . . The ability of a parent to raise his or her child . . . must be examined in a scrutinous, abstract light.” This, of course, must be jealously guarded so as not to categorize as unfit those who have unconventional values.

Unlike those cases where there was evidence of change of detrimental past conditions so as to show present fitness, here there was none. Instead, there is expert testimony that a lengthy pattern of child neglect is unlikely to change. Thus, there is more than merely evidence of past unfitness, which standing alone would not be sufficient. Blackburn, supra at 692.

While decisions such as Bozeman, supra; Durden v. Barron, 244 Ga. 277, 279 (260 SE2d 17) (1979); Shaddrix v. Womack, 231 Ga. 628, 632 (6) (203 SE2d 225) (1974); Heath v. Martin, 225 Ga. 181, 182 (2) (167 SE2d 153) (1969); In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991); and In the Interest of R. L. L., 192 Ga. App. 869 (386 SE2d 852) (1989), do not expressly recognize this doctrine, they are in conformity with it.

In Heath and Shaddrix, the only evidence showing or tending to show unfitness related to occurrences some years prior to the date of the trial, and other undisputed evidence showed changes which the parents had made in their lives since the prior years which rendered them fit parents. In both cases, the Supreme Court held that there was insufficient evidence of present unfitness. In Bozeman, supra at 607, “there [was] ample evidence that the mother’s condition [had] changed for the better. . . .” However, in Durden, the Supreme Court held that the trial court did not abuse its discretion in finding the parent presently unfit, when there was evidence of unfitness based on past conduct and indifference to the child and there was conflicting evidence as to the parent’s present condition. In R. L. L., this court referred to evidence of the father’s past involvement in drug use and held that whether his treatment caused a present abatement of his addiction was an issue for determination by the fact-finder on the basis of all the evidence. Also referring to evidence showing a continued absence of financial support of the children, the court in R. L. L. found competent evidence supporting a finding of present unfitness. S. K. L. recognized the general rule that while past deprivation is not sufficient for termination of parental rights without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are “likely to continue.” Id. at 733. See OCGA § 15-11-81 (b) (4) (A).

In this case, the court in ruling on summary judgment merely distinguished the cases relied on by petitioners as involving “long established patterns of extremely destructive and neglectful behavior.” That is a matter of degree, the category of fitness is broad, Perkins, supra at 623-624 and a factfinder could find the circumstances here constitute just such a pattern. While the question of fitness is based on present fitness, it is affected by what has gone on before to bring the parent and child to this point, and it obviously involves a determination which has significance only in the future, for it is the child’s custody from the time of the judgment forward that is at stake.

The evidence relied upon by the grandmother and the guardian ad litem creates genuine issues of material fact as to the parents’ present fitness as parents. Although the third party has a heavy burden when seeking the legal custody which ordinarily belongs to the parents, who have the right by law to custody in the absence of a statutory ground or unfitness, the evidence does not fall short as a matter of law from challenging that strong legal right. On the record before us, the parents have not shown that the issue is nonexistent, Lau’s Corp., supra, either by proof that the appellants’ evidence is not true or by proof that they are currently fit.

The trial court as the factfinder in this case may not be persuaded that this evidence meets the clear and convincing evidence test, but it is not such evidence which no factfinder could accept as the basis for a finding of unfitness, exercising its discretion. The court erred in granting partial summary judgment in the parents’ favor and foreclosing this issue from trial.

2. The parents argue that the main appeal should be dismissed as to the guardian ad litem, for lack of standing to appeal.

Where a minor is interested in pending litigation and has no guardian or the minor’s interest is adverse to that of the guardian, the court may appoint a guardian ad litem for the minor. OCGA § 29-4-7. Where, as here, the court does appoint a guardian ad litem to represent the minor, the minor is in effect made a party to the action and has standing through the guardian ad litem to appeal. Cf. In the Interest of G. K. J., 187 Ga. App. 443 (1) (370 SE2d 490) (1988); OCGA § 15-11-85 (a). Moreover, when it has been shown that there are parties besides the plaintiffs and defendant who have a direct interest in the result of an appeal, we have authority to allow such other parties to appear by counsel on equal terms with the parties directly before the court. OCGA § 5-6-1. No one has a greater interest than the child who is the subject of the custody dispute and whose future is at stake. The child’s interest is paramount. OCGA § 19-9-3.

3. The parents contend that the trial court erred in considering the amendment to the custody petition requesting grandparent visitation rights, as the amendment was procedurally improper.

OCGA § 19-7-3 (b) gives any grandparent the right to file an original action for visitation rights to a minor child or to obtain visitation rights by intervening in an existing proceeding concerning custody, divorce, termination of parental rights, visitation rights, or adoption by a blood relative or stepparent. See Anderson v. Sanford, 198 Ga. App. 410 (401 SE2d 604) (1991). OCGA § 19-7-3 (c) authorizes the court to grant any grandparent reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child, but it also provides that an original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child.

The parents maintain that the amendment to the petition is not authorized by OCGA § 19-7-3 (b), because it is not an original action or an intervention in an existing proceeding. They thus argue that where a grandparent has filed an original action seeking custody, she cannot amend her petition to seek visitation rights. This argument is without merit. OCGA § 19-7-3 (b) refers to an “original action,” not an “original pleading.” Since this action was originated by the grandmother who has sought visitation rights through an amendment to her petition, it is an “original action for visitation rights” within the meaning of OCGA § 19-7-3 (b). Contrary to the parents’ argument, it has not been filed during any year in which “another custody action” has been filed concerning the child. The petition for custody and amendment for visitation rights were filed by the grandmother in the same action.

Decided June 28, 1994.

Bernard Knight, Randy J. Comins, for appellants.

Susan G. Bueter, Patricia B. Ball, Julian A. Mack, for appellees.

4. The parents contend that the court abused its discretion in granting extended visitation rights to the grandmother, relying on Ryback v. Cobb County Dept. of Family &c. Svcs., 163 Ga. App. 165 (293 SE2d 563) (1982). We find no abuse of discretion under the facts of record. Moreover, the parents have not provided us with a transcript of the trial and we must assume the findings of the trial court were authorized by the evidence presented. MacDonald v. MacDonald, 156 Ga. App. 565, 569 (1c) (275 SE2d 142) (1980).

5. The motion of grandmother and guardian ad litem for frivolous appeal penalties pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment reversed in Case No. A94A0566. Judgment affirmed in Case No. A94A0567.

Andrews and Blackburn, JJ., concur. Johnson, J., disqualified.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A0575.
    TAYLOR v. DUREN.
    (445 SE2d 820)
   Andrews, Judge.

Taylor was sued by appellee Duren on behalf of her minor son under the theory of negligent entrustment. The son, 15 at the time, was injured while riding in Taylor’s truck which was being driven by Scoggins. We granted Taylor’s application to appeal the denial of his motion for summary judgment below.

Viewed with all inferences in favor of Duren, opponent of summary judgment, the evidence was that the minor Duren was staying with Taylor’s mother while Duren worked on a tobacco farm for the summer. On the evening of the accident, Duren had come home from work and taken a shower when Taylor asked him if he wanted to ride with him. Taylor drove his pickup truck to his girl friend’s house, where Scoggins also lived. While Duren and Taylor were there, Scoggins drank at least one beer, although neither Duren nor Taylor noticed any indication that she was inebriated.

Taylor loaned his truck to Scoggins. He knew she was 18 years old and assumed she had a driver’s license, although she did not. Because Taylor and his girl friend were having a disagreement, he suggested that Duren ride with Scoggins, which Duren did. Scoggins drove to her boyfriend’s house in another community, approximately a 30-minute drive.

During the 30-minute or so drive to the boyfriend’s house, Duren did not notice any problem with Scoggins’ driving. He said he would not have gotten in the truck with her if he had noticed any signs of inebriation.

When they got to the boyfriend’s house, Scoggins stopped the truck and asked Duren to go and ask her boyfriend if he wanted to break up with her. Duren spoke to the boyfriend, returned to the truck and told Scoggins the boyfriend had said he did want to break up. At that point, Duren said Scoggins had an angry look on her face, floor boarded the truck, began to weave, lost control of the truck, and hit a tree, either intentionally or accidentally.

1. “Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. [Cits.]” (Footnote omitted.) Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989) . Here, there was no claim that Scoggins was habitually reckless and reliance was on the fact that she allegedly had no driver’s license or was driving under the influence.

Considering only Duren’s evidence, there was no evidence put forward that Scoggins was exhibiting any signs of intoxication before she drove off in the truck. Duren affirmatively stated that he would not have gone with Scoggins if she had appeared inebriated and that Scoggins’ driving was fine until she discovered her boyfriend wanted to break up. Therefore, there was no basis upon which Taylor could have known that Scoggins was incompetent to drive at the time he entrusted the truck to her, an essential element of negligent entrustment. Barnes v. Johnson, 194 Ga. App. 568, 569 (1) (390 SE2d 921) (1990) .

Taylor, based on Scoggins’ age, assumed she had a driver’s license. Here, even assuming that Scoggins was driving without a license, there is nothing to indicate that Taylor had actual knowledge of this. Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990); Clarke v. Cox, 197 Ga. App. 83, 84 (1) (397 SE2d 598) (1990). This is also not a situation where, even absent actual knowledge, the entrustor was under a legal duty to check on a driver’s qualifications before entrusting the vehicle to him. Compare Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828 (3) (435 SE2d 54) (1993).

Decided June 28, 1994.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, H. Pearce Scott, for appellant.

Kitchens, Wolfson, Smith & Hannan, B. Miles Hannan, for appellee.

Further, even had Taylor known she had no license, there was no causal connection shown between any lack of a license and the wreck. Gafford v. Duncan, 210 Ga. App. 350, 351 (436 SE2d 78) (1993); Schofield v. Hertz Corp., 201 Ga. App. 830, 832 (3) (412 SE2d 853) (1991).

2. The trial court denied summary judgment on the basis that there were remaining issues of material fact. While there were some factual disputes, they were minor and would not negate summary judgment in this situation. Willis v. Allen, 188 Ga. App. 390, 392 (373 SE2d 79) (1988).

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A1385.
    OWENS v. THE STATE.
    (445 SE2d 818)
   Birdsong, Presiding Judge.

Dennis Owens appeals his conviction for three separate sales of cocaine to undercover agents, charged in three special presentments. He enumerates four errors below. Held’.

1. The trial court did not err in denying appellant’s motion for mistrial, which he made on grounds that the State impermissibly introduced his character in evidence by giving evidence of his prior cocaine sale convictions. This evidence was properly introduced to rebut appellant’s statement at trial that “I don’t mess around with no drugs.” Appellant contends that proof that he had messed with drugs in the past did not rebut the statement actually made, which was that he does not now mess around with drugs. However, even if his statement did not introduce his character, it was a statement of moral tendency, it could be inferred to mean he had never messed with drugs, and it was capable of being rebutted by proof of his prior cocaine convictions. See King v. State, 203 Ga. App. 287 (2) (416 SE2d 842); Mitchell v. State, 158 Ga. App. 628, 630 (281 SE2d 260).

2. Appellant contends the trial court erred in denying his motion for mistrial made on grounds that a prosecution witness violated the rule of sequestration when he was seen talking with other prosecution witnesses during a recess. We find no error. Whether to grant a mistrial in such instances is left to the sound discretion of the trial court. Hicks v. State, 256 Ga. 715 (352 SE2d 762). The trial court thoroughly inquired into whether the witnesses had discussed the evidence and determined that the witness had merely asked directions to the restroom. That one of the witnesses was a police officer does not make this exchange improper police conduct, nor is it cause for a mistrial. No actual harm was shown, or violation of the purpose of the sequestration rule.

3. Neither was appellant entitled to a mistrial because he alleged that one of the jurors was sleeping. The trial court inquired into the allegation and determined that no juror had been sleeping. As the allegation was incorrect or mistaken, it provided no grounds for mistrial and the trial court did not abuse its discretion in denying one. Hicks, supra.

4. The trial court did not err in denying appellant’s motion to sever trial of the charges on grounds that the separate sales occurred at separate times and did not arise out of the same conduct. See OCGA § 16-1-7 (b); Clark v. State, 213 Ga. App. 313 (444 SE2d 806). Appellant was not entitled to separate trials of these charges as a matter of law; the decision rested on the trial court’s determination whether a fair trial could be conducted and the separate charges understood by the jury. Villarreal v. State, 198 Ga. App. 501 (402 SE2d 104). We note, moreover, that the three sales occurred at the same location, which certainly shows a pattern of activity or related acts, and the evidence of the other sales could have been introduced at the trial of any of them, which negates any claim that appellant was impermissibly prejudiced by the trial of the charges together. Clark, supra; see Williams v. State, 261 Ga. 640 (409 SE2d 649).

5. Appellant contends the evidence was insufficient to support the convictions because in one instance appellant did not handle money or drugs in the sale, and that a conflict in the State witnesses’ evidence is sufficient to create a reasonable doubt. However, the evidence shows that in the instance first referred to, appellant, on request, led the seller to the undercover officers to sell cocaine. As to whether a conflict in the evidence creates a reasonable doubt, this is the province of the jury. The jurors are the judges of credibility and weight of the evidence; they see and hear the witnesses and are better qualified to judge the reasonableness of a hypothesis or a doubt than is the appellate court. We examine not the weight but the sufficiency of the evidence. Alexander v. State, 199 Ga. App. 228 (404 SE2d 616). We have examined the evidence and find it sufficient to persuade the rational trier of fact of appellant’s guilt of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided June 28, 1994.

W. McCall Calhoun, Jr., for appellant.

John R. Parks, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge. Pope, Chief Judge,

text:
    A94A0450.
    HERRING v. DUNNING.
    (446 SE2d 199)
   McMurray, Presiding Judge.

Plaintiff Janie Herring stopped her automobile in a southbound lane of Interstate 185 near Columbus, Georgia, and successfully avoided a multi-vehicle collision ahead of her which had completely blocked the highway. Nevertheless, Herring was struck from the rear with a vehicle driven by defendant Patrick Dunning. In the ensuing tort action against Dunning, as well as against drivers of the vehicles involved in the initial crash, Herring’s counsel of record discussed with Dunning’s attorney the possibilities of settlement based upon the extent of Dunning’s insurance coverage. When a written release was submitted to Herring, she declined to sign it, claiming that it was too late. Dunning moved to enforce the alleged settlement agreement and the trial court entered judgment on his behalf, awarding him a “Full and Final Release of any liability in this case upon payment of the policy limits of $15,000.” This direct appeal followed.

The following undisputed chronology is relevant to the disposition of this appeal: On January 22, 1993, Clay D. Land of the Law Firm of Buchanan & Land, Dunning’s attorney, wrote to L. B. Kent, Herring’s attorney, and offered to compromise the lawsuit by paying the $15,000 coverage limits of Dunning’s automobile liability insurance policy. In return, the defendant would require a complete release of Dunning for any and all liability to Herring. This letter also inquired after the existence of any hospital liens which would need to be extinguished and asserted the need for a release of Dunning as to any potential cross-claims. Without acknowledging the initial defense inquiry, on May 17, 1993, Kent sent to Land a written “offer to settle this case at this time for the limits of your liability insurance policy.” This offer, which did not state an amount and invited confirmation of the policy limits, would expire after 15 days. Also on May 17, 1993, Kent sent to Land a separate “offer to settle this case for $15,000.” This offer granted the defendant 30 days to accept or reject the offer. On May 27, 1993, Land wrote to Kent reciting that in a telephone discussion Kent had extended an oral amended offer to settle the case for the policy limits in return for a release of Dunning from any and all liability. The May 27 letter of confirmation did not purport to be an acceptance of this oral amended offer, in that Land would discuss it with his client and respond later. This letter further invited immediate correction by Kent of any misapprehension on the part of Land. The next day, May 28, 1993, Benjamin A. Land of the law firm of Buchanan & Land wrote to “accept your offer to settle the above-referenced case with [Mr.] Dunning for the policy limits of $15,000.00 in exchange for a full and final release of Dunning.” It is this purported acceptance that Dunning asked the trial court to enforce. Three weeks later, on June 17, 1993, Benjamin A. Land of the law firm of Buchanan & Land tendered to L. B. Kent a draft in the amount of $15,000 and a proposed written release, with instructions that Kent should return the original release when executed by his client Ms. Herring. By fax communication sent to Benjamin A. Land on June 21, 1993, Kent acknowledged receipt of the proposed release but objected to certain language purporting to release Dunning and hold him harmless for any medical expenses. Stating that “we cannot release anything about Ms. Herring’s medical bills,” Kent requested of Land that he “[p]lease change the release.” On July 23, 1993, Land forwarded a revised release which no longer contained the objectionable language regarding a release of liability for medical bills. By fax, this release was rejected on the ground that Ms. Herring “only agreed to release [Mr.] Dunning if done within the time limit. You did not get her a release in time nor have you got a simple release at the present time.”

In further support of his motion to enforce settlement, Dunning proffered the affidavit of Clay D. Land, who authenticated the various communications sent and received and added that L. B. Kent had not returned the draft for the $15,000 despite his letter of July 26, 1993, rejecting the proffered release. In opposition, Kent submitted his own affidavit denying that he had entered into any oral offer and denying that his offer had been properly accepted because the defendant had insisted on additional and material conditions. Held,-.

Plaintiff enumerates as error the trial court’s enforcement of a non-existent settlement agreement, contending that no binding contract was ever entered into by the attorneys.

“Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. [Cits.]” Smith v. Smith, 36 Ga. 184, 191. In considering the enforceability of an alleged settlement agreement, however, “a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. Mangum v. Mills, 108 Ga. App. 535 (133 SE2d 429) (1963); Manget v. Carlton, 34 Ga. App. 556 (3) (130 SE 604) (1925). ‘It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.’ (Emphasis supplied.) Carr v. L. & N. R. Co., 141 Ga. 219, 222 (80 SE 716) (1914).” King Cotton v. Powers, 200 Ga. App. 549 (2), 550 (409 SE2d 67). The settlement agreement alleged to have been created in the case sub judice would have been the product of the attorneys for the parties. As the existence of a binding agreement is disputed, the proponent of the settlement must establish its existence in writing. LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215). See also Abrams v. Abrams, 262 Ga. 170 (2) (416 SE2d 88). “ ‘The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.’ [Cit.]” Stevens v. McCarty, 198 Ga. App. 412, 413 (1), 414 (401 SE2d 605).

As a preliminary matter, we must decide whether a plaintiffs “offer to settle” an existing lawsuit for his personal injuries “for the limits of liability coverage” is an offer capable of acceptance. “ ‘ “(I)f the offer is in any case so indefinite as to make it impossible for a court to decide just what it means, and to fix the legal liability of the parties, its acceptance can not result in an enforceable agreement.” (Cit.)’ ” Poulos v. Home Fed. S & L Assn., 192 Ga. App. 501, 502 (2) (385 SE2d 135). See also Manget v. Carlton, 34 Ga. App. 556, 560 (3), supra. “ ‘Compromise may be defined as any agreement or arrangement by which, in consideration of mutual concessions, a controversy is terminated. The word applies equally to controversies in court or out of court. Mere abandonment of one’s claims is not a compromise, but abandonment may constitute the consideration for which the other party either concedes some right, parts with something, or sustains some loss or inconvenience, in which event a compromise results.’ [Cit.]” Hale v. Lipham, 61 Ga. App. 191, 193 (6 SE2d 115). Therefore, an offer to compromise is an offer to terminate the controversy. In litigation, “Compromise” is synonymous with “Settlement.” See Parris v. Hightower, 76 Ga. 631, 633 (2), 634. “Settlement” is defined in part as “an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other.” Black’s Law Dictionary (4th ed.) “A settlement is an agreement to terminate or forestall all or part of a lawsuit.” Gorman v. Holte, 211 Cal. Rptr. 34, 37 (Cal. App. 2 Dist. 1985). “The word ‘settle’ has an established legal meaning and implies a mutual adjustment of accounts between different parties and an agreement upon the balance. [Cit.]” Sorenson v. Bowen, 263 P2d 766, 768 (Or. 1953). In the case sub judice, plaintiff’s “offer to settle” contained no express promise to release or discharge the defendant upon tender of the policy limits. Nevertheless, a promise to terminate the controversy or the litigation is a necessary implication to the “offer to settle.” It is the quid pro quo. Indeed, that promise is the very definition of an “offer to settle.” An implicit contractual provision exists where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it. See Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308). Since the plaintiff’s written offer to settle her pending tort claim with the tortfeasor for the limits of the latter’s automobile liability coverage necessarily contained her implied promise to execute some instrument terminating the controversy as to that settling defendant, such an offer is sufficiently definite to be capable of acceptance and so to create a mutually binding and enforceable contract. Poulos v. Home Fed. S & L Assn., 192 Ga. App. 501, supra.

The next question is whether defendant properly accepted plaintiff’s offer to settle the case for the policy limits so as to create a binding agreement. The letter of May 28, 1993, recites: “We hereby accept your offer to settle the above-referenced case with Patrick John Dunning for the policy limits of $15,000.00 in exchange for a full and final release of Dunning.” This letter contains an additional paragraph which states defense counsel’s “understanding that no liens of any kind exist in this case. Please confirm this at your earliest convenience.” Plaintiff contends that this writing is ineffective as an acceptance because the reference to a release imports a material variance to the offer to settle. We disagree.

“ ‘An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer.’ Monk v. McDaniel, 116 Ga. 108 (3) (42 SE 360). To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. . . .” Anderson, Clayton & Co. v. Mangham, 32 Ga. App. 152, 156 (123 SE 159). A purported acceptance of a plaintiff’s settlement offer which imposes conditions or attempts to release parties other than the named defendant-offeree will be construed as a counteroffer to the offer to settle for the policy limits. Johnson v. Martin, 142 Ga. App. 311 (235 SE2d 728).

In the case sub judice, the plaintiff’s offer to settle for the policy limits is silent as to the particular form by which she has impliedly promised that she will terminate the controversy with the defendant. The form of that termination could be a release of the settling tortfeasor and his insurer, a dismissal of the action as to him, a covenant not to sue, or an express accord and satisfaction of the disputed claim. Defendant’s reply contains an unequivocal acceptance of plaintiff’s “offer to settle for the policy limits of $15,000.00 in exchange for a full and final release” of Dunning himself. It is true that defendant made the initial suggestion that the form by which the controversy shall be terminated should be a release. Contrary to plaintiff’s assertions, however, the bare fact that this acceptance of her “offer to settle” suggested one form of terminating the controversy over another does not render such acceptance a counteroffer which rejects the plaintiff’s offer. Rather, this is a valid acceptance with the suggested choice for terminating the controversy being merely precatory. “Precatory words are words ‘whose ordinary significance imports entreaty, recommendation, or expectation rather than any mandatory direction.’ [Cit.]” Raines v. Duskin, 247 Ga. 512, 523 (277 SE2d 26). Similarly, the inquiry about the non-existence of hospital liens does not condition defendant’s earlier acceptance but is a mere premise which invites confirmation. The letter of May 28, 1993, was an unequivocal and unconditional acceptance of plaintiff’s written offer to settle.

Plaintiff further argues that acceptance was untimely because performance was not tendered until July 21, 1993, well after either the 15-day period allowed in her first written offer of May 17, 1993, or the 30-day period allowed pursuant to her second written offer of May 17, 1993. In this regard, the second offer expressly stated: “You have thirty (30) days in which to accept or reject this offer from the date of this letter.” Neither offer specifies the manner in which that offer must be accepted or the manner in which that acceptance is to be communicated to the plaintiff-offeror.

“An offer may be accepted, however, either by a promise to do the thing contemplated therein, or by the actual doing of the thing. The offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.” Sheffield v. Whitfield, 6 Ga. App. 762, 764 (2) (65 SE 807). “If an offer is made by letter, an acceptance by written reply takes effect from the time it is sent and not from the time it is received; hence, withdrawal of the offer by the offeror after that time is ineffective. If an offer contains alternative propositions, the party receiving the offer may elect between the alternative propositions.” OCGA § 13-3-3. Since plaintiff’s offer contained no specified manner of acceptance, defendant’s counsel was entitled to accept by mailing the insurer’s promise to pay the policy limits in exchange for a full release of its insured, the defendant. The letter of May 28, 1993, accomplished this within the 30-day period extended by the second offer, creating a binding agreement upon mailing. From that moment on, the presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant’s performance but it was not an act necessary to acceptance of plaintiff’s offer to settle for the policy limits. Moreover, since the agreement to terminate the controversy already had been created, the defendant’s subsequent proffer of a release form which plaintiff believed was not in compliance with the understanding of the parties would not be a rejection of the previously accepted offer. Greene v. Colonial Stores, 144 Ga. App. 645, 646 (2), 647 (242 SE2d 489). Compare Johnson v. Martin, 142 Ga. App. 311, supra. Rather, plaintiff herself would have a right of action for an alleged breach of the existing settlement agreement. See Kimbell v. Moreland, 55 Ga. 164 (1); OCGA § 13-3-4. The evidence of record establishes that plaintiff’s attorney made a written offer of settlement to defendant’s attorney and that defendant’s attorney accepted the offer as evinced by the correspondence of both attorneys. Crystal Cubes of Stone Mountain v. Kutz, 201 Ga. App. 338, 340 (3) (411 SE2d 53). The trial court correctly granted defendant’s motion to enforce settlement.

Decided June 10, 1994

Reconsideration denied June 29, 1994

L. B. Kent, for appellant.

Buchanan & Land, Benjamin A. Land, Clay D. Land, Divine, Wilkin, Raulerson & Fields, Richard W. Fields, Self, Mullins & Robinson, Ronald W. Self, Layfield, Rothschild & Morgan, W. Don- aid Morgan, Jr., for appellees.

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., Beasley, P. J., and Smith, J., dissent.

Pope, Chief Judge,

dissenting.

I dissent. In my opinion the facts here establish only that the parties’ attorneys were engaged in on-going settlement negotiations, with a series of offers and counteroffers going back and forth between them. Part of these negotiations concerned the manner and to what extent defendant would be released from liability to plaintiff. An agreement as to the terms of that release was not reached within the time specified by plaintiff’s attorney for acceptance of the offer. Inasmuch as there was no meeting of the minds concerning the essential terms of the settlement agreement within the specified time, no enforceable agreement existed between the parties. See Grossman v. Smith, Barney Real Estate Fund, 211 Ga. App. 243 (438 SE2d 700) (1993) (physical precedent only). I would thus reverse the judgment of the trial court.

I am authorized to state that Presiding Judge Beasley joins in this dissent.


author: Blackburn, Judge.

text:
    A94A0759.
    DUKES v. THE STATE.
    (446 SE2d 190)
   Blackburn, Judge.

Following a trial by jury, the appellant, William Shane Dukes, was found guilty of one count of theft by receiving and two counts of theft by taking, each count involving a motor vehicle. His motion for new trial was subsequently denied by the trial court and this appeal followed.

1. Dukes initially asserts that the trial court erred in failing to direct a verdict on the theft by receiving charge, and further erred in entering a judgment on the jury’s verdict on this charge. We agree.

The evidence produced at trial shows that while the automobile in question was found at Hadden’s Wrecking Company, Charles Had-den, the owner of the salvage business, did not recall from whom he had purchased the automobile, and did not know if he had purchased the automobile from Dukes. Although Willie Barkley, an investigator with the Laurens County Sheriff’s Department, testified without objection that the owner of the vehicle informed him that she wanted to have a warrant issued for Dukes’ arrest for the theft of her vehicle, the owner did not testify at trial. “This testimony is clearly hearsay [and] ‘[h] ear say evidence has no probative value even if it is admitted without objection.’ . . . [Cits.]” Harden v. State, 210 Ga. App. 673, 675 (1) (436 SE2d 756) (1993).

“ ‘A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.’ OCGA § 16-8-7 (a).” Owens v. State, 192 Ga. App. 335, 340 (384 SE2d 920) (1989). In the case sub judice, there is no probative evidence to show beyond a reasonable doubt that Dukes received or was in possession of the stolen Honda, and accordingly, a directed verdict of acquittal was warranted. Consequently, Dukes’ conviction for theft by receiving stolen property involving the 1982 Honda must be reversed for lack of evidence to support the conviction. Id.

2. Next, Dukes argues that the evidence was insufficient to support his conviction of theft by taking the Toyota Tercel, and a directed verdict of acquittal was also warranted on this charge. “We conclude otherwise as a directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” (Citations and punctuation omitted.) Knight v. State, 210 Ga. App. 63, 65 (1) (435 SE2d 276) (1993).

At trial, Abner Hembree, a former employee of Dukes, testified that he and Dukes picked up the Toyota from the parking lot of NationsBank, formerly Citizens and Southern National Bank, and Had-den later purchased the motor, transmission, and door of the automobile from Dukes on or about February 4, 1991. However, on February 11, 1991, Dukes informed a representative of NationsBank, the lienholder that repossessed the automobile on January 25, 1991, that he did not pick up the automobile as requested by the bank because he had forgotten to do so, and the vehicle was subsequently reported as stolen.

We believe that there was ample evidence from which a rational trier of fact could determine Dukes’ guilt of theft by taking the Toyota beyond a reasonable doubt, and consequently his conviction was authorized. Hulsey v. State, 210 Ga. App. 251 (1) (435 SE2d 713) (1993). Contrary to Dukes’ assertion, there was no fatal variance between the allegations set forth in the indictment and the evidence submitted at trial because he denied that he was in lawful possession of the vehicle.

3. In his fifth, sixth, and seventh enumerations of error, Dukes challenges the trial court’s admission of evidence of prior allegedly similar transactions. Specifically, he asserts that the trial court erred in admitting the testimony of Harold Ward and in admitting a certified copy of the indictment and jury’s verdict from his prior trial for three counts of secreting property to defraud another, in violation of OCGA § 16-9-53. Although all of the counts in the prior transactions involved the concealment of automobiles, Dukes argues that the charges were not substantially similar, and the trial court’s finding that all of the requirements enunciated in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), were met, was equivocal. However, even assuming without deciding that the trial court erred in admitting this evidence, such error “was harmless since the jury verdict[s] [on the theft by taking charges] w[ere] overwhelmingly supported by the other evidence.” (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 704 (1) (426 SE2d 238) (1992).

In addition, the trial court’s charge to the jury on prior similar transactions was a correct statement of the law. While the trial court admitted the evidence on the basis that it could show bent of mind, motive, and course of conduct, purposes deemed appropriate under Williams, the court specifically instructed the jury that Dukes was only on trial for the offenses charged in the indictment. The court further charged the jury that the evidence should not be considered for any purpose other than Dukes’ state of mind or course of conduct if the jury believed that Dukes had engaged in the prior transactions. We find no error in the charge as a whole. See Barnes v. State, 191 Ga. App. 424 (2) (382 SE2d 164) (1989). “Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error.” (Citations and punctuation omitted.) Hightower v. State, 210 Ga. App. 386, 388 (436 SE2d 28) (1993).

4. Next, Dukes contends that the trial court erred in its charge to the jury on theft by taking which followed the wording of OCGA § 16-8-2. While he concedes that the charge was “abstractly correct,” Dukes maintains that the trial court erred in charging the jury that the offense of theft by taking can be committed in more than one manner when only one manner was alleged in the indictment. However, as the Supreme Court recognized in Anderson v. State, 262 Ga. 26, 27 (1) (413 SE2d 732) (1992), “[i]t is not usually cause for new trial that an entire Code section is given even though a part of the charge may be inapplicable under the facts in evidence.” (Citations and punctuation omitted.) Moreover, “we will neither impute an adverse construction to the charge nor give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for their determination. [Cits.]” (Punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 156 (421 SE2d 560) (1992). Dukes does not contend that the jury was confused by the charge, and the record does not indicate that the jury was confused or misled. Id.

5. Lastly, Dukes argues the trial court erred in ordering restitution as a condition of probation following a hearing at which the only evidence presented was evidence of the amount of damages suffered by the victims. In its June 28, 1993, order, the trial court did not make any findings in support of restitution.

At a restitution hearing, “[i]t is not sufficient for the trial judge to consider only the amount of the victim’s damages. [Cit.] Pursuant to OCGA § 17-14-10, the court must also consider other factors, including ‘(1) The present financial condition of the offender and his dependents; (and) (2) The probable future earning capacity of the offender and his dependents. . . .’ ‘Because the record reveals that such factors were not considered, that portion of the sentence imposing restitution is reversed and remanded for hearing in compliance with (OCGA § 17-14-10).’ [Cit.] Pursuant to Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (1985), written findings of fact relating to the factors set forth in OCGA § 17-14-10 should also be made upon remand and rehearing.” Slater v. State, 209 Ga. App. 723, 725-726 (4) (434 SE2d 547) (1993).

Decided June 9, 1994

Reconsideration denied June 29, 1994

Larsen & Larsen, W. Washington Larsen, Jr., Celia Larsen, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.

Judgment affirmed in part, reversed in part, and remanded with direction.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       In a seven-count indictment, Dukes was charged with four counts of theft by taking and three counts of theft by receiving. At the commencement of the trial, the state nolle prossed one count of theft by taking and two counts of theft by receiving. A directed verdict of not guilty and acquittal was subsequently granted on Count 6 of the indictment, theft by taking, involving a 1989 Nissan pickup truck.


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A0802.
    WILSON et al. v. MUHANNA.
    (445 SE2d 540)
   Birdsong, Presiding Judge.

This is an appeal from a defense verdict in a medical malpractice case arising from brain surgery in which a cotton ball was left in the head of Matthew Wilson, a minor. Appellants contend the trial court erred by denying their motion for a directed verdict on the issue of negligence and also erred in the instructions given on the issue of the burden of proof in a medical malpractice case.

After Wilson was diagnosed with a brain tumor, Dr. Nabil Muhanna performed surgery to remove the tumor. During the surgery Dr. Muhanna used regular cotton balls to absorb blood and moisture, rather than cotton balls with strings or cotton balls with radiopaque markings that would show up on X-rays. During the surgery, a cotton ball could not be accounted for, and although a search was conducted for at least an hour, the cotton ball could not be found. Consequently, the surgery was completed with the cotton ball missing. It was not disputed that in operations of this nature a cotton ball could be concealed in the brain.

After the surgery, Dr. Muhanna told Wilson’s mother that the operation was a success and that Wilson was cured. No mention was made of the missing cotton ball, however, and no further efforts were made to locate it by additional tests or an MRI. Further, the surgical notes on the operation did not mention the missing cotton ball or the search for it.

Subsequently, after suffering a seizure, Wilson was rushed to the hospital where a CT-scan revealed a mass in his brain. Because it was feared that Wilson had a residual brain tumor, further surgery was performed. During this surgery, the missing cotton ball, now infected and abscessed, was found. The surgeon who performed the second surgery told the family that there would have been no need for the second surgery if the cotton ball had not been left.

At trial, the plaintiff’s expert testified that it was below the standard of care not to use cotton balls with strings or radiopaque markings. Held:

1. Appellants contend the trial court erred by denying their motion for a directed verdict on the issue of negligence. When determining whether the trial court erred by denying a motion for a directed verdict, this court must review and resolve the evidence and any doubt or ambiguity in favor of the verdict, and a directed verdict is not authorized unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268).

Appellants argue that because plaintiffs’ and defendant’s experts testified that appellee violated the standard of care by not recording the missing cotton ball and the search for it in the surgical notes, the trial court should have directed a verdict on the issue of negligence. We do not agree.

In this state the grant of summary judgment to the plaintiff may not be based solely upon expert opinion testimony. Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45); Ginn v. Morgan, 225 Ga. 192, 193-194 (167 SE2d 393). Given the similarities between the law applicable to summary judgments and directed verdicts, the same is also true for grants of directed verdicts. Hawkins v. Greenberg, 159 Ga. App. 302, 306-307 (283 SE2d 301) (physical precedent). “[O] pinion evidence will never sustain the grant of a summary judgment, a directed verdict, or judgment notwithstanding the verdict. [Cits.]” Ga. Power Co. v. Sinclair, 122 Ga. App. 305, 308 (176 SE2d 639). The basis for this rule is that opinion testimony does establish facts and juries are not bound to accept expert opinion testimony. Cameron v. Moore, 199 Ga. App. 800, 802 (406 SE2d 133); Dowis v. McCurdy, 109 Ga. App. 488 (136 SE2d 389). Consequently, the jury in this case was authorized to reject the testimony of the experts who testified on behalf of either or both parties. Moreover, this rule also recognizes the relationship between the requirement for expert testimony in professional negligence cases (see Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 201-202 (345 SE2d 904); Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802)), and the presumption that professionals perform their professional services in an ordinarily skillful manner. See Mims v. Wardlaw, 176 Ga. App. 891 (338 SE2d 866); Kenney v. Piedmont Hosp., 136 Ga. App. 660, 664 (222 SE2d 162). It is only when a plaintiff presents expert testimony tending to rebut this presumption that a jury issue is created. Howard v. Walker, supra at 407; Tumlin v. Daniels, 166 Ga. App. 635, 637 (305 SE2d 145); Hughes v. Malone, 146 Ga. App. 341, 345-346 (247 SE2d 107). Thus, even though the experts testified that Dr. Muhanna deviated from the standard of care by not recording the information about the missing cotton ball in his notes, the presumption of professional performance did not vanish (Miller v. Miller, 258 Ga. 168, 170, n. 6 (366 SE2d 682)) and thus Dr. Muhanna was still entitled to rely upon it. Overstreet v. Nickelsen, 170 Ga. App. 539, 543-544 (317 SE2d 583). Therefore it cannot be said that the evidence demanded a verdict for appellants on this issue.

2. The second enumeration of error contends the trial court erred by instructing the jury that “it is presumed that the defendant performed in an orderly skilled manner, and the burden is on one receiving the services to show lack of care, skill, and negligence.” Appellants contend that using “and” rather than “or” required the jury to find lack of care, skill, and negligence before it could award damages, and, of course, appellants were not required to prove the lack of negligence.

First, we note that, while appellants objected at trial to the use of “and” rather than “or,” they did not object to the use of “negligence” rather than “diligence.” Therefore, any error concerning the use of “negligence” in the charge was waived. OCGA § 5-5-24 (a); Lloyd v. Stone Mtn. Mem. Assn., 165 Ga. App. 679, 680 (302 SE2d 602). Further, given the nature of the error here, we do not find that application of OCGA § 5-5-24 (c) is warranted. See Hamrick v. Wood, 175 Ga. App. 67, 68 (332 SE2d 367).

Secondly, considering the use of “and” rather than “or,” we find no prejudicial error arising from the confusion of these words. Considering the charge in its entirety (Pouncey v. Adams, 206 Ga. App. 126, 128 (424 SE2d 376)), the jury was instructed fully and correctly on the legal principles applicable to a medical malpractice case, and in particular the plaintiffs’ burden of proof. “ ‘If there were errors in the charge, they were mild. The [appellants] lost, not because of the charge, but because [they] failed to impress the jury with the justness of [their] cause.’ ” Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (342 SE2d 352).

Judgment affirmed.

Cooper and Blackburn, JJ., concur specially.

Blackburn, Judge,

concurring specially.

I recognize that Georgia law provides rebuttable presumptions are only rebutted when a jury so finds, and I am constrained to follow this precedent. However, just as the court may decide proximate cause issues in clear and indisputable cases, the court should also be allowed to find that a presumption has been rebutted, and therefore, not present the presumption to the jury. This case presents such a clear and indisputable basis for the court to find that the presumption has been rebutted. Both the plaintiffs’ and defendant’s experts agreed that the defendant’s conduct failed to meet the standard of care. In such a case, the presumption is undeniably rebutted.

Decided May 26, 1994

Reconsideration denied June 29, 1994.

Bovis, Kyle & Burch, James E. Singer, Dana F. McBride, for appellants.

Forrester & Brim, Weymon H. Forrester, Richard C. Bellows, for appellee.

I am authorized to state that Judge Cooper joins in this special concurrence.


text:
    A94A0891.
    NEAL v. CSX TRANSPORTATION, INC.
    (445 SE2d 766)
   Blackburn, Judge.

The appellant, Jackie Lee Neal, filed the instant complaint for damages under the Federal Employers’ Liability Act, 45 USC § 51 (FELA), against his employer, CSX Transportation, Inc., a Virginia corporation authorized to do business in this state, as a result of multiple injuries that he sustained during a fall while working in an allegedly unsafe yard maintained by CSX in Jacksonville, Florida. CSX responded to the complaint, asserting several defenses, and subsequently moved to transfer the action to Gwinnett County.

After a hearing on the motion, the motion was granted, and the matter was transferred to Gwinnett County. The case proceeded to trial, the jury returned a general verdict in favor of CSX, and judgment was entered on the jury’s verdict. Neal’s motion for new trial was subsequently denied by the trial court, and this appeal followed.

1. Initially, Neal asserts that the Superior Court of Fulton County erred in transferring the venue in the case to Gwinnett County. We disagree.

Federal and state courts exercise concurrent jurisdiction in FELA actions. 45 USC § 56; Moss v. Central of Ga. R. Co., 135 Ga. App. 904 (219 SE2d 593) (1975). While the federal statute governing such actions specifically provides for venue where the action is filed in federal courts, the act is silent as to venue of such actions in state tribunals. Accordingly, we must look to our state laws to determine the proper venue for actions filed in state courts.

Our state constitution provides that civil actions must be tried in the county where the defendant resides, and venues for corporations, foreign and domestic, are determined by law. Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. Venue of actions for foreign corporations such as CSX is governed by OCGA § 14-2-510, which was enacted in 1989, and in effect at the time that this action was filed on November 20, 1990. This statute specifically provides, in part, that, “ £[f]or the purpose of determining venue, each domestic corporation and each foreign corporation authorized to transact business in this state shall be deemed to reside: (1) For purposes of proceedings generally, in the county where its registered office is maintained, or if the corporation fails to maintain a registered office, it shall be deemed to reside in the county in this state where its last named registered office or principal office, as shown by the records of the Secretary of State, was maintained ... (3) For purposes of proceedings for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county. . . .’” McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (418 SE2d 130) (1992). Since the allegedly tortious acts of CSX occurred in Florida, venue of this corporation is proper in the county where its registered agent and registered office are located.

As in this case, “when the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence rule. [Cit.]” Id. at 866. Although the trial court herein did not make any specific written findings in its December 11, 1991, order granting CSX’s motion to transfer venue, the trial court impliedly found that venue was proper in Gwinnett County because CSX’s registered agent and registered office for service of process are located in that county. Considering the evidence in the record and the applicable law, the trial court did not err in transferring venue to Gwinnett County.

2. Next, Neal maintains that the trial court erred in failing to grant his motion for new trial because the verdict is not supported by the evidence.

In order to recover under FELA, an employee must show that the employer’s negligence played a part, however small, in the injuries that he sustained. Southern R. Co. v. Hamilton, 113 Ga. App. 778 (149 SE2d 842) (1966). Once the employee has met his burden, the obligation to pay damages arises. Id.

While Neal alleged in his complaint and at trial that the railroad yard was negligently maintained by CSX, CSX produced testimony of the terminal superintendent for the railroad yard who stated that the company employed a cleaning crew to remove debris within the yard. The superintendent further testified that if the condition of the yards was reported as unsafe, the company made efforts to remove the unsafe material. More importantly, Neal’s credibility was challenged based upon the inconsistent version of the accident given in his deposition testimony in comparison to his trial testimony, and the misrepresentations that he made concerning his income from his business on his federal income tax return form. In addition, the testimony of two of his corroborating witnesses revealed that they were also asserting an action against CSX under FELA. Moreover, the medical evidence produced showed that Neal’s physical and psychological condition was probably related to his preexisting infirmities. There was also evidence produced at trial that Neal failed to mitigate his damages by refusing to accept a position within his limitations that had been offered by CSX.

“ ‘On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment. (Cit.)’ [Cit.]” Thompson v. Hardy Chevrolet-Pontiac-Buick, 203 Ga. App. 499, 503 (3) (417 SE2d 358) (1992). “The issues [including the credibility of the witnesses] were properly submitted to the jury and were resolved against [Neal]. The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict. [Cits.] As there was some evidence supporting the verdict and the contrary evidence did not demand a verdict for [Neal], the trial court did not err in denying [his] motion for new trial. [Cit.]” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (256 SE2d 916) (1979).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided May 27, 1994

Reconsideration denied June 29, 1994

Burge & Wettermark, Michael J. Warshauer, for appellant.

Alston & Bird, Gerald L. Mize, Jr., for appellee.

       He also asserted in a separate count that he was entitled to damages for injuries that he subsequently sustained on CSX’s premises while attempting to pick up a disability check. However, during trial, he dismissed this count.

       During the trial, Neal dismissed his claim for damages as a result of the March 1990 accident.

       While OCGA § 46-1-2 governs actions against railroads for injuries caused by the railroad or its agents, it does not apply to actions for injuries sustained in a foreign state, and is therefore inapplicable. See Louisiana State Rice Milling Co. v. Mente &c., 173 Ga. 1 (159 SE 497) (1931) (interpreting a former version of OCGA § 46-1-2).