author: Birdsong, Presiding Judge.

text:
    A98A0482.
    GILL et al. v. COOPER TIRE & RUBBER COMPANY.
    (499 SE2d 85)
   Birdsong, Presiding Judge.

Appellants/plaintiffs Roger Gill et al. appeal from the order of the superior court granting summary judgment in behalf of appellee/ defendant Cooper Tire & Rubber Company. This premises liability suit is for injuries sustained when appellant Roger Gill, who was an electrician employed by Georgia Electric Company and performing electrical work at appellee’s Albany plant, slipped and fell in an oily substance located on the pedestal floor near tire mixer no. 2, as he was assisting a co-employee in routing electrical wire during the course of their employment. At the time of the incident, appellant Gill was ascending a ladder from the mezzanine level to the pedestal floor. As he stepped from the ladder, his right foot slipped on the oily substance and he was thrown into the tire mixer and injured. The floor was painted black and there was no direct light in the area where the fall occurred; appellant also stated, by way of affidavit, that he was unaware of the presence of the oily substance and that the dim lighting made it “difficult, if not impossible” for him to detect the substance. Appellee contends that appellant Gill gave conflicting testimony, as in his earlier deposition testimony he stated that he remembered seeing the oily substance as he stepped into it. However, Gill immediately explained in his deposition that what he was saying was that he could not remember if he saw the substance as he stepped into it or if he saw it as he slipped. He further explained that the incident “happened too quick for me to do anything about it.” After his fall, appellant observed that paper towels had been placed on a ledge around the mixer base apparently to absorb the oil. Gill admits he could have seen the towels from ground level if he had been looking up for them. He claims he did not see the towels because he was discussing the manner and method of accomplishing the work assigned with another employee whom he had followed up the ladder; he did not slip on the towels but on the oil adjacent to the towels on the black floor. The oil was of a clear, yellowish tint. Although appellant Gill knew that the mixer was equipped with an automatic lubricator and the maintenance people only had to keep the oil replenished, he was unfamiliar with the fact that the mixer was equipped with an oil catch-basin system which leaked oil from the mixer.

A Senior Project Engineer for appellee tire company testified that he had learned that oil spills would occur in the mixers in 1968 “when [he] saw [his] first mixer and saw the trays overflowing because somebody didn’t clean the solids out of it.” He further testified that the mixer is designed with the basin system; the drip pans are placed because it is anticipated that oil will drip down the outside of the mixer; typically during 1993, approximately fifty gallons of oil combined with carbon black would escape from the mixer into the drip pans in a two-day period; drip pans are typically twelve inches wide and about an inch and a half deep; they are not intended to hold fifty gallons of oil; drip pans can become stopped-up and cause oil leaks or spills onto the pedestal; and, if oil absorbent pads are in place on the pedestal floor, an oil leak has occurred. At the time of the incident, appellee had no single person responsible for preventing oil spills; everybody was responsible for plant safety.

Georgia Electric had a maintenance contract with appellee, and both parties were responsible for keeping things clean or keeping materials off the floor. Maintenance personnel from Georgia Electric put the absorbent paper towels down at mixer no. 2 in October 1993 in anticipation of a hydraulic leak which would occur upon start-up of the mixer. These towels came from the central storeroom of Cooper Tire. Mixer no. 2 had, on occasion, both hydraulic leaks and oil pan leaks. Mixer no. 2 had a hydraulic leak on the latch cylinder bulkhead in October 1993; it is unknown if the leak was repaired before the date of the incident. In addition to drip pan system leaks, the mixer also had hydraulic oil leakage at start-up which occur more frequently than drip pan leaks. September 20, 1993 was the start-up for dry cycling of mixer no. 2; appellee’s personnel also would have been running mixer no. 2 during start-up and it would take three or four months time for start up to be completed. The operations manager of Georgia Electric opined that on October 29, 1993, it was “very well possible” that appellee’s production personnel would be in the vicinity of the pedestal of mixer no. 2 and this possibly would occur more than once during the usual activities of a day; appellee’s supervisory personnel would have been “just in and out” of the mezzanine area in October 1993. The Georgia Electric maintenance leader testified that appellee’s production employees came down to the mezzanine to clean up cold pieces of rubber that might fall into the mix batch on the drop mill; appellee’s employees would be in and out of the mezzanine area “[mjaybe once a shift.” In October 1993, Georgia Electric’s maintenance leader, who then was a maintenance crafts-person, observed that oil had accumulated on the tire mixer pedestal; he cleaned the oil up because he was concerned someone might fall. Held:

1. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). The applicable summary judgment standard in a slip and fall case is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) as modified by Robinson u. Kroger Co., 268 Ga. 735 (493 SE2d 403). Further, while opinion testimony will not support the granting of a motion for summary judgment, it can support its denial. Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 SE2d 673); Dickson v. Dickson, 238 Ga. 672, 675 (4) (235 SE2d 479).

2. OCGA § 51-3-1 imposes a non-delegable duty upon an owner or occupier of land to exercise ordinary care in keeping the premises and approaches safe where the owner or occupier has, by express or implied invitation, induced or led others to come upon the premises for any lawful purpose. See, e.g., Moon v. Homeowners’ Assn., 202 Ga. App. 821 (415 SE2d 654); Towles v. Cox, 181 Ga. App. 194, 196 (1) (351 SE2d 718).

3. “[I]n order to recover for injuries sustained in a slip-and-fall action, 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.” Robinson v. Kroger Co., supra at 748-749. Before an owner can be held liable for the slippery conditions on his floors, produced by a foreign substance thereon, it is necessary that the proof show that he was aware of the substance or would have known of its presence had he exercised reasonable care. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327). “However, the plaintiffs evidentiary proof concerning the second [Robinson] 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., supra at 749. Although the evidence of appellee’s superior knowledge is slight, there does exist some circumstantial evidence from which a jury could infer that appellee had actual or constructive knowledge of the oil spill hazard.

Additionally, while generally a constant patrol of the premises is not required, because ordinary diligence does not require an inspection of property in the absence of any reason for the owner to believe that such an inspection is necessary (Towles, supra at 196 (1), citing Hood v. McCall Clinic, 145 Ga. App. 314 (243 SE2d 571)), a constant patrol is required where there exists conditions making the premises unusually dangerous. Towles, supra at 196 (1); see Alterman, supra at 622. Considering the inherent design of the mixers, known to appellee and its mechanical engineer, which resulted in recurring oil spills of two distinct types (hydraulic oil leaks and oil spills from overflow of the oil-catch basin system), the necessity for installing absorbent pads or paper towels around the mixer and its pedestal to contain recurring oil spills, the highly slippery characteristic of oil, the black color of the floor, the electrical construction/maintenance taking place in the vicinity of the mixers, the dim lighting conditions and the proximity of mixer no. 2 and its pedestal to the ladder leading to the mezzanine, we also find that a jury question exists in this case whether appellee allowed an unusually dangerous condition to exist on its premises which would impose upon it the duty of providing a constant patrol of the danger area. Compare Towles, supra.

4. Appellee contends that certain statements of appellant Gill, regarding when he detected the oily substance, were contradictory. See generally Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) and Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383). Although appellant Gill’s affidavit contains a statement which might be construed as being somewhat contradictory, particularly with a portion of his earlier deposition testimony, this potential contradiction is substantially negated when the earlier deposition testimony is construed in the manner Gill intended. The meaning of Gill’s deposition testimony was reasonably and immediately explained during the taking of the deposition. Whether testimony is contradictory, and whether a reasonable explanation has been offered is a question of law. Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 214 (1) (483 SE2d 671), citing Worley v. State Farm &c. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244). As explained, the essence of Gill’s deposition testimony is that he could not remember if he first saw the oily substance as he stepped into it or as he slipped; that is, that he did not detect the oily substance until either he was actually in the physical process of stepping into it or was actually slipping in it; consistent with Gill’s reasonable explanation, it is this interpretation which must be given to this portion of his testimony on appeal.

Decided March 4, 1998

Reconsideration denied March 23, 1998

Donald D. Rentz, for appellants.

Cannon & Meyer Von Bremen, William E. Cannon, Jr., William H. Gregory II, for appellee.

5. The alleged failure of appellant Gill to exercise ordinary care for his own safety was not established as a matter of law by his admissions that he could have seen the absorbent towels had he looked up or that he first saw the oil as he was stepping in it. It remains a jury question whether Gill, taking into account all the circumstances existing at the time and place of the fall, exercised the prudence the ordinary careful person would use in a like situation. Robinson, supra at 748-749. The evidence in this case is not “plain, palpable, and undisputed,” within the meaning of Robinson, supra at 748, that Gill failed to exercise ordinary care for his personal safety.

As this case was not susceptible to summary judgment, when the applicable precedent of Robinson, supra, is applied, the trial court erred in granting summary judgment to appellee.

Judgment reversed.

Johnson and Smith, JJ, concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0260.
    FISHER v. MARVIN REESE COMPANIES, INC.
    (499 SE2d 411)
   Judge Harold R. Banke.

Marvin Reese Companies, Inc. (“Reese”) obtained a restraining order restricting its former employee, Myron Fisher, from selling certain specified products in a delineated area and requiring that Fisher disclose certain information whenever he solicits sales. Enumerating three errors, Fisher appeals that restraining order.

Reese is a wholesale distributor and manufacturer of souvenirs, gift items, and postcards. When Fisher began his employment with Reese as a commissioned salesman, he signed an “Independent Contractor and Trade Secret Agreement,” which contained certain non-compete provisions. Specifically, Fisher agreed not to reveal certain proprietary information and not to sell or to solicit sales for any products in competition with Reese within his assigned territory for a two-year period. About ten months later, Fisher terminated his employment and began working for a competitor, Scott Sales Company, Inc. (“Scott”) which also sold novelty articles. When a principal of Reese, Marvin Reese, discovered that Fisher was soliciting some of Reese’s customers within Fisher’s former territory, Reese sought a temporary restraining order, damages, and injunctive relief to enforce the non-compete provisions of the contract.

Prior to the hearing, the parties agreed that the sole issue for the trial court’s determination was whether Fisher had, in fact, violated the agreement by soliciting Reese’s customers. After a Reese customer testified that Fisher had solicited business from him for Scott, and after Fisher admitted that he had contacted two other customers of Reese, the court found that Fisher had solicited business in violation of the contract and enjoined him from engaging in future similar conduct. Held:

1. Fisher contends that the non-compete agreement is an unreasonable restraint of trade, overly broad, invalid, and unenforceable. However, Fisher failed to show by the record that he raised these issues to the trial court. It is well-settled that errors not raised at trial will not be considered and ruled upon on appeal. Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987); Dupree v. State, 206 Ga. App. 4 (1) (a) (424 SE2d 316) (1992). Accordingly, we decline to address them. Id.

2. Fisher claims that the restraining order constitutes an unreasonable restraint of trade because it is overbroad and restricts him from soliciting the sale of items not in competition with Reese. We disagree. The restraining order at issue precludes Fisher from soliciting any customers of Reese within Fisher’s former geographic territory for two years. The carefully crafted order specifically designates and describes the 21 restricted items each of which must refer to or be identified with the State of Georgia or City of Atlanta. Inasmuch as this order is limited in terms of its duration, the proscribed geographical area, and the scope of prohibited activity, and it appears reasonably necessary to protect the interests of Reese, it is neither void nor against public policy. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). See American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282, 283 (1) (430 SE2d 166) (1993).

Decided March 23, 1998.

Matt Shade, for appellant.

Zachary & Segraves, Kenneth L. Levy, for appellee.

3. We reject Fisher’s claim that the court erred in determining that he violated the agreement. A finding by a trial court acting as the factfinder will not be disturbed where it is supported by any evidence. OCGA § 9-11-52 (a); Hughes v. Cobb County, 264 Ga. 128, 130 (1) (441 SE2d 406) (1994). In light of Fisher’s own admission that he offered Scott’s sales catalogues to two of Reese’s customers and the testimony of one of Reese’s customers that Fisher attempted to sell Scott’s products to him, it cannot be said that the trial court clearly erred in finding that Fisher solicited sales in violation of the non-compete provisions of the contract. Dougherty County Bd. of Equalization v. Casto Dev. Co., 228 Ga. App. 293, 295 (491 SE2d 483) (1997).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       Citing Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993), the Supreme Court transferred this case to this Court.


author: McMurray, Presiding Judge.

text:
    A98A0277.
    ESASKY v. FORREST.
    (499 SE2d 413)
   McMurray, Presiding Judge.

Permission to pursue an interlocutory appeal was granted under the following circumstances: Plaintiff James Forrest filed a breach of contract action against defendant Jimita Esasky and, after a bench trial, obtained a judgment against her in the principal amount of $11,753 plus $2,097.79 interest and court costs. Plaintiff served post-judgment interrogatories and requests for production of documents on defendant and also on her husband, appellant Nicholas Esasky, a non-party to the underlying action.

Defendant provided copies of her checking account owned jointly with Nicholas Esasky but denied owning (or transferring) any other substantial asset. Appellant Nicholas Esasky objected to plaintiff’s post-judgment discovery requests “insofar as Nick Esasky is not a party to this litigation[; and because the requests allegedly] far exceed the permissible scope of discovery pursuant to the Georgia Civil Practice Act.” Nicholas Esasky raised additional objections based on “attorney client privilege and work product immunity[; because] production is to take place at the offices of Plaintiff’s counsel^ and because] “discovery of any income tax return filed jointly with [defendant] Jimita Esasky will. . . not lead to discovery of relevant or admissible evidence ... or information . . . helpful to the Plaintiff in collecting on his judgment.”

Plaintiff subsequently moved to compel discovery from non-party Nicholas Esasky. This motion was granted by the trial court, which also awarded plaintiff $750 in attorney fees for having to prosecute the motion to compel. Nicholas Esasky’s application for interlocutory review was granted and a timely notice of appeal was filed. Nicholas Esasky appeals from the order of the trial court granting plaintiff’s motion to compel post-judgment discovery from a non-party. Held:

1. In his first enumeration, Nicholas Esasky contends the trial court erred in compelling him, as a non-party to the underlying suit, to respond to plaintiff’s post-judgment interrogatories. He argues that, because post-judgment discovery shall be conducted in the manner provided in the Civil Practice Act, and OCGA § 9-11-33 allows interrogatories only to “parties” to the action, “based on the plain language of O.C.G.A. § 9-11-69, a judgment creditor has no right to propound post-judgment interrogatories on persons who were not parties to the underlying lawsuit.” Consequently, he urges, a non-party is under no duty to respond to post-judgment interrogatories. This argument cannot withstand scrutiny.

(a) OCGA § 9-11-69 (1) and (2) provides: “Process to enforce a judgment for the payment of money shall be a writ of execution. . . . In aid of the judgment or execution, the judgment creditor . . . may do any or all of the following: Examine any person, including the judgment debtor by taking depositions or propounding interrogatories;. . . [and] Compel the production of documents or things;... in the manner provided in this chapter for such discovery measures prior to judgment.” (Emphasis supplied.) Appellant Nicholas Esasky is correct that, under OCGA § 9-11-33 (a) (1), “[a]ny party may serve upon any other party written interrogatories. . . .” (Emphasis supplied.) But the plain language of OCGA § 9-11-69 (1) works an express expansion of the permissible use of post-judgment written interrogatories to “any person,” regardless of whether that person was a party to the underlying action in which the money judgment was rendered. The non-party spouse of a judgment debtor is therefore within the scope of post-judgment discovery, including post-judgment interrogatories. OCGA § 9-11-69 (1); In re Suzanne Cal laway, 212 Ga. App. 500, 501 (442 SE2d 309).

(b) Remaining contentions with respect to written interrogatories have been considered and are found to be without merit. The trial court did not err in ordering non-party Nicholas Esasky to comply with plaintiff’s post-judgment written interrogatories.

2. Nicholas Esasky next contends that “absent a showing of good cause, [the trial court] erred in ordering [him], a non-party, to respond to [plaintiff’s] requests to produce.” He argues under OCGA § 9-11-34 (c) (1), the moving party must make a showing of good cause in order to prevail on an OCGA § 9-11-37 (a) motion to compel discovery against a non-party, but that here plaintiff made no such showing.

(a) “All judgments obtained in the superior courts, magistrate courts, or other courts of this state shall be of equal dignity and shall bind all the property of the defendant in judgment, both real and personal, from the date of such judgments. . . .” OCGA § 9-12-80. “[T]he lien of the judgment . . . attaches to all the property of the defendant, owned at that time, and to all by him subsequently acquired.” Kollock v. Jackson, 5 Ga. 153, 157 (2).

(b) The purpose of post-judgment discovery under OCGA § 9-11-69 is to enable litigants to recover on a liability already established by judgment. Aldridge v. Mercantile Nat. Bank, 132 Ga. App. 788, 789 (2) (209 SE2d 234). “Any question that seeks information which would lead to any property or holdings of the defendant in fi. fa. which are subject to levy to satisfy the judgment... is pertinent and allowable.” Bradley v. Coach & Six Restaurants, 112 Ga. App. 278, 280 (2) (a) (145 SE2d 55). Accordingly, “interrogatories pertaining to information as to the following matters [are] all legitimate subjects of inquiry: The [judgment debtor’s] ownership and location of residence; engagement in any type of proprietorship or partnership; holdings of corporation stock; employment; salary; other sources of income; bank accounts; ownership of vehicles, personal property and real estate; accounts receivable; transfers of property within the last year; possession, control and custody of certificates of vehicle registration and property tax returns; source of information for each answer to an interrogatory not based upon personal knowledge; and identity of each person rendering assistance in preparing the answers.” Id. “The fact that the source of income is potential or contingent cannot be utilized as a refuge for a judgment debtor to defeat the payment of a debt that he has been commanded by the law to pay” Aldridge v. Mercantile Nat. Bank, 132 Ga. App. 788, 789 (2), supra.

In our view of the case sub judice, the circumstance that plaintiff already obtained a judgment, when coupled with the spousal relation, is sufficient OCGA § 9-11-34 (c) (1) “good cause” to entitle plaintiff to determine the extent, if any, of the judgment debtor’s joint interest in marital property. Cases observing that personal income tax returns have limited relevance in pre-trial discovery simply are not germane to the circumstances presented after judgment. Consequently, the trial court was authorized to compel post-judgment production of documents, including jointly filed income tax returns, from the judgment debtor’s spouse in this instance.

Decided March 23, 1998.

Moore, Ingram, Johnson & Steele, Stephen C. Steele, Hicks, Casey & Barber, Richard C. Foster, for appellant.

Alston & Bird, Candace N. Smith, James C. Grant, for appellee.

(c) Remaining objections to production of documents and things for inspection have been considered and found to be without merit.

3. The third enumeration contends the trial court erred in awarding plaintiff $750 as a discovery sanction. Defendant argues “there was no hearing on [plaintiff’s] motion before the [trial court] issued its order.”

“[A]nswering [discovery] partially or giving evasive answers evidences a dispute between the parties which is brought before the trial court by [an OCGA § 9-ll-]37 (a) motion to compel discovery and is resolved through an order to compel answers or [else] a protective order. To prevent either party from frivolously propounding questions or giving evasive answers, the trial court must require the losing party of the [OCGA § 9-ll-]37 (a) battle to pay the expenses involved in obtaining the order, including attorney fees, ‘unless the court feels that opposition to the motion was substantially justified’ or otherwise excused. [OCGA § 9-ll-]37 (a) (4). [Cit.]” Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437 (2), 439 (254 SE2d 825).

“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” Uniform Superior Court Rule 6.3. Due process does not always require an evidentiary hearing to consist of oral argument. Frequently, a “paper hearing” is sufficient to protect the rights at issue. Subsequent Injury Trust Fund v. James, 261 Ga. 548 (406 SE2d 77). In the case sub judice, the trial court did not err in ordering the non-party object of post-judgment discovery to pay reasonable attorney fees as a sanction for the need to bring a motion to compel that post-judgment discovery, after a “paper hearing” on plaintiff’s motion.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: Ruffin, Judge.

text:
    A97A1940, A97A1941.
    HALL COUNTY SCHOOL DISTRICT et al. v. C. ROBERT BEALS & ASSOCIATES, INC. et al.; and vice versa.
    (498 SE2d 72)
   Ruffin, Judge.

Currahee Construction Company (“Currahee”) is a general contractor hired by the Hall County Board of Education (“school board”) to construct a new elementary school. As the contractor, Currahee was required to provide the school board with performance and payment bonds in the contract amount of $2,590,400. During performance of the contract, the school board learned that the bonds provided by Currahee were invalid, and the contract was terminated. Several of Currahee’s unpaid subcontractors, who could not make payment claims under the invalid bonds (the “subcontractors”), subsequently sued the school board under OCGA §§ 13-10-1 and 36-82-102 for amounts they were owed for labor and materials provided as part of the construction project. In response to the parties’ cross-motions for summary judgment, the trial court ruled (1) that material issues of fact existed concerning the school board’s defense that it is not liable because the bonds were facially valid and in the form required by OCGA §§ 36-82-102 and 13-10-1; (2) that the school board was not entitled to sovereign immunity against the subcontractors’ claims; and (3) that the school board is entitled to summary judgment on the subcontractors’ equitable lien claims. We granted the school board’s application for interlocutory appeal based on the trial court’s denial of its motion for summary judgment, and the subcontractors cross-appealed. For reasons which follow, we affirm in part and reverse in part.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Although many of the relevant facts in this case appear undisputed, we note that the school board has failed to cite, the record to support most of its factual assertions. Furthermore, the numerous attempts by both parties to establish facts by reference to attachments to their briefs are inconsequential. Attachments to the briefs do not constitute evidence and are insufficient to establish facts. Crotty v. Crotty, 219 Ga. App. 408 (2) (465 SE2d 517) (1995). Court of Appeals Rules 27 (c) (1) and (2) clearly require specific references to the record, and on appeal this Court will not cull the record on the parties’ behalf. Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997). We will address each of the asserted errors to the extent allowed by the record references provided.

In this regard, the record shows that the school board advertised a public invitation to submit bids for the construction project and notified potential bidders that 100 percent performance and payment bonds would be required. See OCGA § 13-10-1 (b). On August 13, 1992, the school board unsealed the competing bids, and Currahee was the low bidder. Currahee’s bid package contained its bid and a document which was purportedly a bid bond issued by American Specialty Insurance Company (“American Specialty”). The bid bond was executed by Thomas McGlon as the ostensible “Finance Chairman” of American Specialty. On August 17, 1992, the school board voted unanimously to accept Currahee’s bid. On August 21, 1992, the parties executed the contract for Currahee to build the school, and the school board received what were purported to be performance and payment bonds for the project. Like the bid bond, the performance and payment bonds were ostensibly issued by American Specialty, payable to the school board and executed by McGlon as the “Finance Chairman” of American Specialty. It is undisputed that the school board did not take any action to verify the validity of the bonds or to determine whether American Surety was solvent, but merely “assumed” the bonds were valid.

On September 28, 1993, when the project was near completion, the school board was notified that the bonds were not issued by American Specialty and were therefore invalid. While investigating the situation, the school board’s associate superintendent contacted the Licensing Division of the Georgia Insurance Commissioner’s Office (“Insurance Commissioner”) and learned that American Specialty was no longer authorized to issue insurance. Apparently, a June 30, 1992 quarterly statement showed that the company was in unsound financial condition. On September 28, 1992, after investigating American Specialty, the Insurance Commissioner suspended the surety’s Certificate of Authority to issue insurance.

Based on the information the school board obtained about the invalid bonds, it notified Currahee that the company was in default of the contract and demanded that it provide valid bonds within seven days. Currahee failed to comply, and on October 29, 1993, the school board notified Currahee that the contract was terminated. At the time of termination, the project was 98 percent complete. A payment request form approved on September 13, 1993, shows that as of that date there remained approximately $180,247 in undisbursed funds for the project, of which $129,523 was a percentage retained by the school board for work already completed by Currahee. Several subcontractors were not paid for work they completed, however, and they asserted a claim against the school board for $291,184.21. A portion of the remaining funds was used to settle some of the claims, but when the remaining subcontractors’ claims were not satisfied, they filed the instant action.

Case No. A97A1940

1. The trial court properly denied the school board summary judgment because there is conflicting evidence concerning liability under the relevant bond statutes.

The applicable requirements for payment bonds for the school board’s construction project are contained in OCGA §§ 36-82-101, 36-82-102 and 13-10-1. OCGA § 36-82-101 generally provides that a public works contract with a county is invalid unless the contractor complies with OCGA § 13-10-1. OCGA § 13-10-1 (b) (2) establishes the substantive requirements for payment bonds that a contractor is required to give to the county. However, neither OCGA § 36-82-101 nor OCGA § 13-10-1 (b) (2) purports to impose liability upon a county when a contractor fails to provide the appropriate bond. See DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 646 (1) (437 SE2d 327) (1993). Rather, these statutes establish a contractor’s duties regarding performance and payment bonds and when read together merely affect the validity of a public works contract. Id.

Instead, OCGA §§ 36-82-102 and 13-10-1 (f) establish the county’s duties concerning payment bonds and its liability for failing to perform those duties properly. Specifically, OCGA § 36-82-102 provides that “[i]f the payment bond . . . required in [OCGA § 13-10-1 (b) (2)]... is not taken in the manner and form required in this Code section, the corporation or body for which the work is done under the contract shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery, or materials to the contractor or subcontractor thereunder for any loss resulting to them from such failure.” (Emphasis supplied.) In J & A Pipeline, our Supreme Court construed the foregoing emphasized text of OCGA § 36-82-102. There, the Court held that payment bonds are “taken ‘in the manner’ required by OCGA § 36-82-102 when they are presented to, approved by and filed with the appropriate county official. The general contractor’s payment bond is taken ‘in the form’ required by OCGA § 36-82-102 when it purports, on its face, to be submitted on behalf of a general contractor who is obligated under OCGA § 13-10-1 (a) (2) to secure such a bond for the use and protection of subcontractors and materialmen.” Id. at 649. Based on the language of OCGA §§ 36-82-102 and 13-10-1 (a) (2) which was in effect during the relevant times of the J & A Pipeline case, the Court concluded that when a “county takes a payment bond from the general contractor or an affidavit from the surety which does, on its face, comport with the statutory requirements, the subcontractors’ and materialmen’s direct action remedy will be defeated notwithstanding the subsequent inefficacy of the bond or the subsequent discovery of the falsity of the affidavit. . . . There is no express statutory requirement that, prior to taking the bond and affidavit, [the county] undertake any other inquiry to determine whether the bond was ‘good and sufficient.’. . .” (Paragraph indention omitted.) J & A Pipeline, supra at 649-650. Accordingly, notwithstanding the Court’s statement that the bond must be “approved” by the appropriate county official, if that official simply “takes” a bond which is in proper form, then he or she has satisfied the condition that it be “taken in the manner required.” Id.

Importantly, however, OCGA § 13-10-1 was amended after the relevant period of events at issue in J & A Pipeline, and the amended language placed an additional duty on governmental entities in the approval process. See J & A Pipeline, supra at 650. Specifically, OCGA § 13-10-1 (f) now requires that any performance bonds required by § 13-10-1 “shall be approved as to form and as to the solvency of the surety by the officer of the state, county, municipal corporation, or public board or body who negotiates the contract on behalf of the public entity. Said approval shall be obtained prior to the bid’s being accepted!’ (Emphasis supplied.)

It is clear that the school board is a public body within the meaning of these Code sections and can therefore be held liable for its failure to comply with the statutory requirements. See J & A Pipeline, supra at 646-647; Lance Roofing Co. v. Bd. of Ed. of Gwinnett County, 235 Ga. 590, 592-593 (221 SE2d 23) (1975). Furthermore, although OCGA § 13-10-1 (f) does not itself provide for liability when the appropriate official fails to approve the solvency of the surety, OCGA § 36-82-102 incorporates this requirement into its own liability provision. OCGA § 36-82-102 specifically references the bond required by OCGA §13-10-1 (b) (2). By definition, such a bond is one that is approved by the appropriate official as to solvency of the surety. See OCGA § 13-10-1 (f). In other words, if a bond is not approved as to solvency of the surety, it does not constitute the bond required by OCGA § 13-10-1 (b) (2) and cannot be taken in the manner and form required by OCGA § 36-82-102. Thus, if an official fails to approve the solvency of the surety as required under OCGA § 13-10-1 (f), the governmental entity can be held liable under OCGA § 36-82-102.

In this case, it is clear that the bond taken by the school board purports, on its face, to be submitted on behalf of Currahee, the general contractor by American Specialty, a surety. Contrary to the subcontractor’s arguments, the school board was not required to “make any further inquiry or investigation” into the propriety of the information presented on the face of the bond in order to defeat the subcontractors’ direct action remedy. See J & A Pipeline, supra at 649. Accordingly, the school board’s liability under these statutes, if any, must result from its failure to investigate the solvency of the surety.

As stated above, the school board admits that it did not perform such an investigation or otherwise approve the solvency of the surety. The school board contends, however, that even if it had investigated the solvency of American Specialty, such an investigation would have revealed that the surety was solvent and would not have provided any indication that the bonds were invalid. The school board relies on evidence showing that “[Information regarding matters under investigation or proposed orders of suspension or revocation is typically not disclosed [by the Insurance Commissioner] to the general public while the investigation or proposed order is pending.” (Emphasis supplied.) This evidence, however, construed in a light most favorable to the subcontractors, does not show that such information is never provided, only that it is “typically” not disclosed. Furthermore, even if the Insurance Commissioner never provided the information, this does not preclude the possibility that the school board could have obtained the same report, which showed American Specialty in unsound financial condition, from another source such as the surety. A jury could certainly infer that with this information in hand, the school board would not have approved Currahee’s bid and the subcontractors would have avoided their injurious situation. Finally, because the school board never conducted any solvency investigation and OCGA § 13-10-1 (f) does not prescribe what type of investigation is required, it is unclear whether the school board would have learned during an appropriate investigation that the subject bonds were invalid. Again, however, a jury could infer that this fact would have been revealed had the school board conducted a proper solvency investigation. Under these circumstances, evidence exists under which a jury could find that the school board’s failure to investigate the surety as required by OCGA §§ 13-10-1 (f) and 36-82-102 resulted in the subcontractors’ losses. Accordingly, the trial court did not err in denying the school board’s motion for summary judgment on this ground.

2. We also find that the trial court properly denied the school board’s motion for summary judgment on the ground that it was entitled to sovereign immunity against the subcontractors’ claims. The school board properly concedes in its appellate brief that it can be held liable for failing to comply with the requirements of OCGA § 36-82-102. See J & A Pipeline, supra at 646-647; Lance Roofing, supra. And, as we held in Division 1, although OCGA § 13-10-1 (f) does not itself provide for liability when the appropriate official fails to approve the solvency of the surety, OCGA § 36-82-102 incorporates this requirement into its own liability provision. In light of the legislature’s provision for liability, we find no merit in the school board’s assertion. See OCGA §§ 36-1-3 and 36-82-102.

Case No. A97A1941

3. The subcontractors are correct that their claim for liability under OCGA § 36-82-102 is not predicated on the school board’s alleged ordinary negligence, but rather negligence per se in violating that Code section. “ ‘Where a statute provides a general rule of conduct, . . . the violation thereof is negligence as a matter of law, or negligence per se, whereas in the absence of such specific statute the jury is left to determine whether such conduct constitutes negligence. [Cit.]’ [Cit.]” Holbrook v. Exec. Conf. Ctr., 219 Ga. App. 104, 107 (2) (464 SE2d 398) (1995). Thus, as stated by the Court in J & A Pipeline, it is the school board’s “breach” of the duties imposed by OCGA § 36-82-102, which “will render it liable to subcontractors and materialmen who suffer losses thereby.” J & A Pipeline, supra at 647. Accordingly, to the extent that the trial court found that the subcontractors’ complaint is based on ordinary negligence or that its cause of action under OCGA § 36-82-102 requires a showing of ordinary negligence, it is reversed.

4. Notwithstanding the existence of undisputed evidence showing that the school board did not take any action to approve the bonds or investigate the solvency of American Specialty, we disagree with the subcontractors that they were entitled to summary judgment based on this evidence. As stated in Division 1, there is no express statutory requirement that a school board presented with a facially valid bond, “make any further inquiry or investigation” concerning the information contained on the face of the bond. See J & A Pipeline, supra at 649. Accordingly, in light of evidence addressed in Division 1 which shows that the bonds are facially valid, the trial court did not err in denying the subcontractors’ motion on this ground.

The subcontractors’ assertion that they were entitled to summary judgment because the undisputed evidence showed that the school board failed to investigate the surety’s solvency is also without merit. “ ‘[E]ven when negligence per se has been shown, proximate cause must still be proved. (Cits.)’ [Cit.]” Holbrook, supra at 107. In Division 1 we cited evidence which, when viewed in a light most favorable to the subcontractors, created a jury issue concerning whether the school board’s failure to investigate American Specialty’s solvency caused the subcontractors’ damages. This same evidence, when viewed in a light most favorable to the school board, similarly presents a jury issue concerning whether such failure proximately caused the subcontractors’ injuries. That evidence showed that the Insurance Commissioner’s office typically does not disclose to the general public evidence concerning matters under investigation, such as American Specialty’s financial problems. And, although a June 30,1992 quarterly statement showed that American Specialty was in unsound financial condition, such evidence does not conclusively show that the school board could have obtained a copy of the report or otherwise learned that the surety was insolvent. Finally, as stated in Division 1, it is unclear whether the school board’s solvency investigation would have revealed anything concerning the validity of the bonds at issue. Accordingly, material issues of fact remain concerning whether the school board’s failure to approve American Specialty’s solvency caused the subcontractors’ damages.

5. The subcontractors correctly assert that the trial court erroneously granted the school board summary judgment on their equitable lien claim. We note initially, that although the subcontractors did not file a separate direct appeal concerning this issue, OCGA § 5-6-38 authorized them to assert the error as part of their cross appeal. As for the merits of their claim, “a subcontractor may have an ‘equitable lien’ in funds held by the [school board] but belonging to another — such as funds already earned by a general contractor but not yet paid over to it when it becomes insolvent. In such a situation, the subcontractor’s ‘lien’ would allow its claim priority over the claims of the insolvent contractor’s other creditors. (Cit.) Under this theory, [the subcontractors have] a claim based on an ‘equitable lien’ only if and to the extent [the school board] is holding a fund of monies earned by (the general contractor) but not yet paid to it. [Cit.]” J & A Pipeline, supra at 651.

As stated above, the record shows that as of September 13, 1993, there remained approximately $180,247 in undisbursed funds under the contract, of which $129,523 was a percentage retained by the school board for work already completed by Currahee. Although a portion of those funds was used to settle some of the claims, the subcontractors have pointed to deposition testimony given by the school superintendent showing that “[t]he remainder is in an escrow account.” In light of this evidence, which shows that the school board has retained money earned by Currahee for work completed, we find that the trial court erred in granting the school board summary judgment on the subcontractors’ equitable lien claim. Id.

Decided February 17, 1998

Reconsiderations denied March 24, 1998

Harben & Hartley, Sam S. Harben, Jr., Martha M. Pearson, for appellants.

Hulsey, Oliver & Mahar, Samuel L. Oliver, James B. Ritchie, for appellees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.

       The record in this case consists of approximately 2,000 pages.


text:
    A97A2074.
    THE STATE v. MACK.
    (499 SE2d 355)
   Ruffin, Judge.

Jonathan Mack, Jr. was charged with two counts of harassing phone calls (OCGA § 16-11-39.1) in that he “threaten[ed] the bodily safety of Jennifer Meadows, conveying such threat to Jennifer Meadows by telephone,” and “threatened] the bodily safety of Luz Orozco, conveying such threat to Luz Orozco by telephone.” Mack moved to dismiss the accusations arguing that the State failed to adequately charge him with any offense against the laws of the State of Georgia. The State opposed the motion to dismiss. The trial court granted Mack’s motion to dismiss, citing Sarver v. State, 206 Ga. App. 459 (426 SE2d 48) (1992) (physical precedent only) (decided under former OCGA § 16-11-39 (4)), overruled on other grounds, Whittle v. State, 210 Ga. App. 841, 842 (437 SE2d 842) (1993). Based on Sarver, the trial court ruled that the State failed to adequately charge Mack with violating OCGA § 16-11-39.1 because there was no allegation of repeated calls. The State appealed, and for the following reasons, we reverse.

On appeal, the standard of review is whether the trial court abused its discretion in granting Mack’s motion to dismiss. State v. Yates, 223 Ga. App. 403, 404 (477 SE2d 670) (1996). The State contends that the trial court incorrectly relied on Sarver because it is distinguishable from the instant case. Specifically, the State argues that the defendant in Sarver was charged with repeated telephone calls for the purpose of harassing, annoying or molesting, whereas, here, Mack was charged with a single telephone call for the purpose of conveying a threat. The State further contends that the statute provides four distinct ways to commit the offense of harassing phone calls. We agree.

Decided March 10, 1998

Reconsideration denied March 24, 1998

Roxann G. Daniel, Solicitor, Jose E. Guzman, Russell B. Poole, Assistant Solicitors, for appellant.

Jonathan Mack, Jr., pro se.

“Although criminal statutes must be strictly construed, they must first be construed consistent with genuine legislative intent and in a manner which avoids absurd and contradictory results ([cits.])” Reynolds v. State, 209 Ga. App. 628, 630 (1) (434 SE2d 166) (1993). OCGA § 16-11-39.1 (a) provides: “[a] person commits the offense of harassing phone calls if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person or the family of such other person; uses over the telephone language threatening bodily harm-, telephones and intentionally fails to hang up or disengage the connection; or knowingly permits any telephone under such person’s control to be used for any purpose prohibited by this subsection.” (Emphasis supplied.)

Clearly, the language of the statute shows that a person can be charged with committing the offense by conduct constituting either a single telephone call that threatens bodily harm or repeated calls for the purpose of annoying, harassing, or molesting another. Moreover, under the former version of OCGA § 16-11-39 (4), which defines the offense, we held that “a person may commit the offense of ‘harassing phone calls’ in separate and alternative ways.” Hazelton v. State, 200 Ga. App. 61, 63 (406 SE2d 569) (1991).

In this instance, the State properly charged Mack by accusation with a violation of OCGA § 16-11-39.1. The State was not required to allege that Mack repeatedly telephoned the victims when the State was charging him with using the telephone to threaten bodily harm. See Hazelton, supra. Accordingly, the trial court is reversed.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.

       The language contained in OCGA § 16-11-39 (4) is similar to the language contained in the 1995 amendment, OCGA § 16-11-39.1 (a).


text:
    A97A2182.
    ECHOLS v. THE STATE.
    (498 SE2d 66)
   Ruffin, Judge.

On August 17, 1987, Curtis Lee Echols, Jr. pled guilty to three counts of armed robbery and two counts of aggravated assault. Following a hearing, the trial court accepted the guilty pleas and sentenced Echols for the offenses. On March 15, 1995, Echols filed a motion for an out-of-time appeal. The trial court denied the motion, and Echols appealed, pro se. For reasons which follow, we affirm.

“An out-of-time appeal is authorized when defendant’s failure to file a timely direct appeal was due to ineffective assistance of counsel. [Cits.] ‘But in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.’ [Cit.]” Manion v. State, 228 Ga. App. 270 (491 SE2d 506) (1997).

In this case, Echols has not shown that the issues he seeks to raise on appeal can be resolved by reference to facts in the record. First, Echols asserts that the trial court considered improper matters during his sentencing following the guilty pleas. See Clark v. State, 138 Ga. App. 266, 270 (5) (226 SE2d 89) (1976). Echols, however, has failed to cite any facts in the record supporting this assertion, and our own review of the guilty plea hearing transcript does not reveal that the trial court considered such improper matters. Absent any evidence of record, Echols cannot “rebut the presumption that the trial court did not consider the improper matter in fixing the sentence. [Cits.]” Hamrick v. State, 197 Ga. App. 89, 91-92 (4) (397 SE2d 503) (1990).

Second, Echols asserts that his plea was not knowing and voluntary because appointed trial counsel misinformed him about the sentence he would receive upon pleading guilty. Again, however, Echols has not shown how this assertion can be resolved by reference to the record. In his appellate brief, Echols cites only his own unsworn self-serving statements to the trial court at the out-of-time appeal motion hearing. These statements are not evidence. See Belcher v. State, 173 Ga. App. 509 (1) (326 SE2d 857) (1985); Hill v. State of Ga., 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986). And, our review of the guilty plea hearing transcript does not reveal that counsel gave any such advice. Accordingly, Echols again has failed to meet his burden of showing that this issue can be resolved by reference to facts in the record. See Manion, supra.

Decided January 9, 1998

Reconsideration denied March 24, 1998.

Curtis L. Echols, Jr., pro se.

David McDade, District Attorney, for appellee.

Under these circumstances, Echols was not entitled to a direct appeal from the judgment of conviction entered on his guilty plea, and he was therefore “ ‘not entitled to be informed of a non-existent “right” to appeal.’ [Cit.]” Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Accordingly, the trial court did not err in denying Echols’ motion for an out-of-time appeal. See id.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A2367.
    STRAHLEY v. PRUITT CORPORATION.
    (498 SE2d 78)
   Ruffin, Judge.

David Strahley sued Pruitt Corporation (“Pruitt”) alleging tortious interference with contractual and business relationships. The trial court granted Pruitt summary judgment on both claims. Strahley appeals, and for reasons which follow we affirm the grant of summary judgment on Strahley’s tortious interference with business relations claim, but reverse the court’s judgment on his interference with contract claim.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, Strahley alleged that Pruitt operated nursing homes and that he provided psychological counseling to residents of the nursing homes. According to Strahley’s complaint, Pruitt denied him “the right to see patients and conduct his business.” Strahley claimed that Pruitt’s conduct gave rise to his two causes of action.

Viewed in a light most favorable to Strahley, the evidence of record shows that Pruitt owned and operated the Fort Oglethorpe Nursing Center (“Fort Oglethorpe”) located in Fort Oglethorpe, Georgia and the Shepherd Hills Health Care Center (“Shepherd Hills”) in Lafayette, Georgia. In August 1993, Fort Oglethorpe and Shepherd Hills entered into one-year contracts with Strahley for him to provide various psychological counseling services to residents of both facilities. The evidence is undisputed that both Pruitt facilities utilized Strahley as required during the terms of the contracts. Although there were no written extensions or renewals, Strahley continued to provide his services after the contracts expired.

According to the affidavit of Steve Sheets, Shepherd Hills’ administrator, Strahley continued providing his services at that facility through August 5, 1996, “when he stopped coming after he was notified that the Contract was being terminated.” Sheets further stated that “Strahley gave no notice to [him] nor anyone on the staff at [Shepherd Hills] that he would not be returning to provide psychological services when he left the facility on or about Monday, August 5, 1996.” The affidavit of Alan Hutchins, Fort Oglethorpe’s administrator, indicates that Strahley’s services were also terminated at that facility in the fall of 1996. According to Hutchins’ affidavit, “[i]n accordance with the notice sent to his attorney, Dr. Strahley simply stopped coming to [Fort Oglethorpe] after November 8, 1996.” Both Sheets and Hutchins testified that after Strahley left the facilities, neither the residents whom Strahley was treating nor their families ever asked where he was or further requested his services.

In response to this evidence, Strahley pointed to interrogatory responses in which he stated that he had contractual relationships with his patients who resided at the nursing homes. According to the discovery responses, representatives from both facilities “severely limited” his access to his patients and informed him in February 1996 that he would no longer be permitted to provide psychological services to the patients.

1. “ ‘Tortious interference with contract requires proof of: (1) an independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause injury; and (3) resulting damage.’ ” Cumberland Center Assoc. v. Southeast Mgmt. &c., 228 Ga. App. 571, 581 (3) (b) (492 SE2d 546) (1997). In this case, Pruitt contends that summary judgment was properly granted because it was not a stranger to Strahley’s contracts with the facilities or its patients.

We agree with Pruitt that the foregoing evidence failed to establish it was a stranger to the' contracts between Strahley and the nursing homes. The evidence clearly shows that Pruitt owned and operated both facilities. A more difficult question, however, is whether Pruitt was a stranger to the contracts between Strahley and his patients residing at the facilities.

In support of his assertion that Pruitt was a stranger to his contracts with the residents, Strahley cites the Bill of Rights for Residents of Long-term Care Facilities, OCGA § 31-8-100 et seq. (“Bill of Rights”). The Bill of Rights is based upon a finding by the General Assembly that “persons residing within long-term care facilities are isolated from the community and often lack the means to assert fully their rights as individual citizens.” OCGA § 31-8-101. Accordingly, in promulgating the Bill of Rights, it was “the intent of the General Assembly to preserve the dignity and personal integrity of residents of long-term care facilities through the recognition and declaration of rights safeguarding against encroachments upon each resident’s need for self-determination.” Id. It is clear, that in light of this legislative intent, the General Assembly has attempted to carefully balance the duties placed on long-term care facilities regarding the required care of their residents and the rights of the residents to act autonomously. For example, OCGA § 31-8-108 requires a facility to provide adequate and appropriate care, treatment and services to its residents, but allows the residents to choose their own physician and participate in planning their health care. Similarly, OCGA § 31-8-111 requires the assistance of the facility in promoting a resident’s rights to vote, freely exercise religion and associate with others. Finally, OCGA § 31-8-120 (a) requires that “[v]isitors must be granted access to residents, who have the right to refuse or terminate any visit.” A facility administrator may refuse a visitor access or require a person to leave “only if he has reason to believe that the presence of the person seeking access would result in severe harm to any resident’s health, safety, or property; if the access is sought for financial solicitation or for commercial purposes; or if such access is refused by the resident.” OCGA § 31-8-120 (c).

We agree with Pruitt that the relationship between an independent care provider, a resident and the facility is at times such that the parties are “inextricably bound together.” This is necessitated by the requirement that the facility provide its residents with “care, treatment and services which are adequate and appropriate.” OCGA § 31-8-108 (a). However, this requirement must be read within the context of the legislative intent of “safeguarding against encroachments upon each resident’s need for self-determination[,]” and providing residents with “the means to assert fully their rights as individual citizens.” OCGA § 31-8-101. See also OCGA § 1-3-1 (a) (“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”). Accordingly, although OCGA § 31-8-108 only addresses a resident’s rights to choose a physician and pharmacist, we do not believe that the Legislature intended to restrict a resident to selecting only a physician and pharmacist. If it were true that a facility could, without reprisal, freely interfere with all other contractual relationships relating to the care of its residents, the same residents’ rights of self-determination and association would be severely jeopardized in violation of the Bill of Rights. Thus, although Pruitt had an obligation to provide adequate and appropriate care to the residents under OCGA § 31-8-108, this obligation did not necessarily entitle the nursing homes to interfere with the autonomous contractual relationships of its residents.

In this regard, the evidence shows that Strahley’s written contract with Pruitt’s facilities expired and that he had separate contractual relationships with residents of those facilities. A jury could find that these latter contractual relationships were intended to be completely independent of any affiliation the residents had with the nursing homes and that the facilities accordingly had no right to interfere with those contractual relationships. These are indeed murky waters which, under the circumstances of this case, are not susceptible to resolution by a court as a matter of law. The issue of whether Pruitt, as the owner of the facilities, was a stranger to any contracts Strahley had with residents is a matter that must be decided by a jury. See McLane v. Atlanta Market &c. Co., 225 Ga. App. 818, 827 (5) (486 SE2d 30) (1997) (physical precedent only). We therefore reverse the trial court’s grant of summary judgment to Pruitt on Strahley’s tortious interference with contract claim.

Decided February 17, 1998

Reconsideration denied March 24, 1998

Robert D. Jones, for appellant.

Adams, Clifton, Sanders & Smith, Cecil L. Clifton, Jr., for appellee.

2. We disagree with Strahley, however, that the trial court erred in granting Pruitt summary judgment on his tortious interference with business relations claim. “To recover under a theory of tortious interference with business relations, [Strahley] must demonstrate financial injury and must show that [Pruitt]: acted improperly and without privilege; acted purposely and with malice with intent to injure; and induced a third party or parties not to enter into or continue a business relationship with [Strahley]. [Cit.]” Keith v. Alexander Underwriters &c., 226 Ga. App. 838, 840-841 (3) (487 SE2d 673) (1997). Pruitt asserts that summary judgment was appropriate because there was no evidence that it induced the residents not to enter into or continue a business relationship with Strahley. We agree.

Pruitt has shown that after Strahley left the facilities, neither the residents whom Strahley was treating nor their families ever asked where he was or further requested his services. Pruitt has further shown that there is no evidence that it induced the residents or the residents’ representatives to discontinue a business relationship with Strahley. In response, Strahley was required to point to specific evidence giving rise to a triable issue. See Lau’s Corp., supra. Because Strahley failed to point to any such evidence, the trial court properly granted summary judgment to Pruitt on this claim. See id.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.

       The pleadings and evidence of record include two different spellings of defendant corporation: “Pruit” and “Pruitt.” For consistency, we will utilize the latter spelling which was employed by the parties in their appellate briefs and by this Court in docketing the appeal.

       Strahley provided services and entered the contracts under the name Professional Psychological Services.

       We do not address the issue of whether a facility administrator has the right to interfere with a resident’s independent contractual relationship if the administrator has reason to believe that the relationship would “result in severe harm tp [the] resident’s health, safety, or property; if the access is sought for financial solicitation or for commercial purposes; or if such access is refused by the resident.” OCGA § 31-8-120 (c).


author: Blackburn, Judge.

text:
    A98A0615.
    ROSS v. THE STATE.
    (499 SE2d 351)
   Blackburn, Judge.

Glenwood Ross appeals his conviction for armed robbery. Ross contends that the trial court erred in its recharge to the jury, that his Sixth Amendment right to confront the witnesses against him was abridged, and that there was insufficient evidence presented at trial to support his conviction.

1. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation omitted.) Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996).

At trial, the victim testified that prior to exiting her car to go to her hotel room, she saw a small white car containing three black males cruising the hotel parking lot and she had waited to exit her car until the white car was out of sight. Thereafter, as she was ascending a flight of stairs to her room, a light-skinned black male holding a gun and wearing a white shirt, sweat shirt, dark pants, and white tennis shoes demanded her purse. The victim threw down everything she was carrying, whereupon the perpetrator picked up her purse and ran to the back door of a small white car. The perpetrator got into the back seat of the car behind the driver, the car hesitated and then drove off.

Officer James Chambers with the DeKalb County Police Department testified that shortly after receiving information over his radio regarding the armed robbery, he began following a small white car containing three black males traveling away from the scene of the robbery. Officer Chambers noted that the back seat passenger slouched down in his seat and looked back several times. Upon stopping the vehicle, the defendant exited from the back seat. A search of the vehicle revealed, among other things, the victim’s purse, the victim’s gun, and the perpetrator’s gun. The guns were found under the front seat, one on the driver’s side and one on the passenger side. Both guns were accessible from the front or back seats.

His co-defendants testified that Ross got out of the car at the hotel, committed the robbery, and got back into the car with a purse and an extra gun. The co-defendants also testified that they pled guilty to robbery for their connection with the present case. Although Ross denied committing the robbery and contended that one of his co-defendants committed the robbery, Ross was the only person in the car wearing a sweat shirt.

Having viewed the evidence in the light most favorable to the verdict, we find that sufficient evidence was presented to authorize the jury’s verdict pursuant to the Jackson v. Virginia standard.

2. In several enumerations of error, Ross contends that the trial court erred in its recharge to the jury. Ross asserts that the trial court failed to fully instruct the jury on a point of law, that his constitutional rights were violated when the trial court denied his motion for mistrial based on the inadequate jury instructions, and that the trial court erred in denying his motion for new trial due to the inadequate instructions.

After jury deliberations had begun, the jury sent several questions to the judge: “Is there a difference between holding the gun and being on the scene, with knowledge of crime, but no gun, for armed robbery charge? ... Is ‘a party to’ considered guilty of armed robbery? If so, what does it take to be ‘a party to,’ knowledge only, intent, counsel, other? . . . May we see a copy of the Judge’s charge to the jury.” After hearing argument, the trial court recharged the jury on parties to a crime and knowledge. The trial court also supplied the jury with a copy of the entire charge. Defense counsel stated that he was satisfied with the recharge.

After more deliberation took place, the jurors requested the legal definition of “participation” and “conspirator.” The trial court charged the jury: “First of all, participation has no particular legal definition. Participation means what you collectively agree that participation means. It is just a common English word, and the definition of that is just the common English definition of participation. There is no legal definition for me to give you on that word. As to the word conspirator, the court realizes that I inadvertently included in my charge a provision regarding conspirator. It appears on page 6 of the charge. Conspiracy is not involved in this case. There is no charge of conspiracy in this case, so you’re to disregard any reference to any provision about ‘or was a conspirator in.’ That does not apply in this case. Okay?” Thereafter, defense counsel stated that he had no exception to the court’s recharge.

Deliberations continued until 5:14 that evening when the court recessed for the weekend. On Monday morning, defense counsel requested that the trial court recharge the jury on “knowingly” and “intentionally” as they modified the word “participate” in the trial court’s original charge. The trial court denied defense counsel’s motion finding that the mere presence charge coupled with the knowledge charge addressed counsel’s concerns. The trial court then denied counsel’s motion for a mistrial which counsel based on the trial court’s failure to grant the requested recharge.

“It is within the discretion of the trial court to give or not to give unrequested additional instructions' when the jury requests a recharge on a particular point, Patterson v. State, 264 Ga. 593 (2) (449 SE2d 97) (1994), and the discretion includes the giving of unrequested instructions not contained in the trial court’s original charge. Taylor v. State, 169 Ga. App. 842 (2) (315 SE2d 661) (1984).” Miner v. State, 268 Ga. 67 (2) (485 SE2d 456) (1997). Based upon the facts that the defense agreed to the recharges as given, only later requesting that the trial court instruct the jury on matters not requested and that the charge as a whole addressed the defendant’s concerns, we find that the trial court did not abuse its discretion in denying defendant’s motion to provide the jury with unrequested additional instructions. Accordingly, the trial court also did not abuse its discretion in also denying the defendant’s motion for mistrial based upon the court’s failure to reinstruct as requested.

Decided March 10, 1998

Reconsideration denied March 24, 1998

Tony L. Axam, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Assistant District Attorney, for appellee.

During Ross’ motion for new trial, three jurors testified that they were confused about the definition of knowledge and participation with regard to being a party to a crime. Ross asserts that based upon this testimony, a new trial should have been granted. However, OCGA § 17-9-41 provides that “affidavits of jurors may be taken to sustain but not to impeach their verdict.” As in Moore v. State, 224 Ga. App. 797, 801 (6) (481 SE2d 892) (1997), the jurors’ testimony was inadmissible to impeach the jury’s verdict. Therefore, the trial court properly denied Ross’ motion for new trial on this issue.

3. In two enumerations of error, Ross contends that the trial court committed reversible error by disallowing any testimony regarding the mandatory minimum sentence for armed robbery. Ross asserts that this restricted his right to a full cross-examination of a co-defendant and abridged his ability to bring up the co-defendants’ motive to lie in opening statements and to argue same in his closing argument.

Ross’ arguments are without merit as the transcript is clear that the trial court restricted him only from asking questions couched in terms of “mandatory minimum sentence.” Ross was free to question the co-defendants as to their understanding of the possible sentence, as long as the jury was not informed of the mandatory minimum sentence for armed robbery. Furthermore, when defense counsel was questioning one of the co-defendants, the following testimony took place in front of the jury: “Q. What did you think you were looking at on an armed robbery charge? A. Ten years mandatory. Q. You didn’t want to go to jail for the armed robbery sentence? A. No. Q. So, you pled to robbery and you got seven years? A. Yes.” Therefore, Ross did question the co-defendants regarding their motives to lie, and he could have made such argument in closing had he so chosen.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Johnson, Judge.

text:
    A97A0376.
    WOELPER et al. v. PIEDMONT COTTON MILLS, INC.
    (498 SE2d 372)
    Decided March 24, 1998.

      John B. Lyle, for appellants.

      Barron & Barron, George L. Barron, Jr., for appellee.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Piedmont Cotton Mills v. Woelper, 269 Ga. 109 (498 SE2d 255) (1998), our decision in Woelper v. Piedmont Cotton Mills, 226 Ga. App. 337 (487 SE2d 5) (1997), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A98A0114.
    CANTRELL v. THURMAN et al.
    (499 SE2d 416)
   Eldridge, Judge.

Ricky G. Cantrell, plaintiff-appellant, was arrested on criminal charges and incarcerated on May 5, 1993; he was unable to make bond. He was held in the Bartow County Jail in the custody of Sheriff Donald E. Thurman and Deputy Sheriff William (Bill) Hart, chief jailor, defendants-appellants. Plaintiff remained in custody until August 10, 1993.

On July 28,1993, plaintiff hurt his foot. The foot became infected without observable evidence, and the infection went undiagnosed by the treating physician, because there was no open wound. Plaintiff developed a fever that reached 107 degrees. A couple of days later, his foot became inflamed and severely swollen. Plaintiff described the foot as having turned red, blue, and purple; it became black and developed gangrene. Plaintiff could not wear a shoe or walk, and he was in pain. Plaintiff was unaware that he was diabetic; therefore, he told no one at the jail that he had diabetes or a family history of diabetes. Such diabetic condition was not diagnosed until he was hospitalized for his foot condition.

Plaintiff made written and oral requests for medical care and was examined and treated by Dr. Robert W. May. On examination of the injured foot, Dr. May made a diagnosis that the plaintiff had two broken toes causing the swelling; Dr. May concluded that there was no treatment for plaintiff’s condition. However, there was no fracture of the foot or toes. Dr. May performed no blood tests or x-rays and administered only 600 mg. of ibuprophen. No antibiotics were administered. Plaintiff saw Dr. May on August 2, 6, 7, 9, and 10; Dr. May repeatedly noted no infection, only swelling.

On August 10, 1993, plaintiffs worsening condition caused the defendants to take the plaintiff to Cartersville Medical Center, where he was admitted, and his foot was diagnosed as infected for the first time. Surgical procedures had to be performed on the foot to save it from amputation; the foot was saved but with extensive tissue damage. Subsequently, plaintiff underwent several operations which resulted in the loss of several toes. Plaintiff contended that he was permanently partially disabled, so that he could not work as a carpenter-framer or common laborer.

On July 28, 1995, plaintiff sued the defendants, both individually and in their official capacities, under 42 USCA § 1983 for an Eighth Amendment violation of the federal constitution and under Art. I, Sec. I, Par. XVII .of the 1983 Constitution of the State of Georgia for wilful and wanton denial of adequate medical care of an inmate in their custody. The defendants answered and raised defenses of qualified/good faith immunity and official immunity. On July 1, 1996, the defendants moved for summary judgment.

Defendant Hart, by affidavit, testified that the jail used two registered nurses and Dr. May to provide medical care and that the plaintiff received medical treatment from them thirteen times while in jail. He was examined by the medical staff on August 2, 1993, for soreness of his foot with follow-up treatment on August 7, 9, and 10. On August 10, 1993, Dr. May sent the plaintiff to the hospital. Defendant Hart denied that the plaintiff received inadequate medical care or was denied treatment.

Defendant Thurman, by affidavit, testified that it was the jail policy to provide appropriate medical treatment with the jail’s medical staff for all prisoners and that the plaintiff received adequate medical care on 13 occasions. Thurman had no direct contact with the plaintiff and knew nothing about his medical condition. He denied any intentional or negligent deprivation of medical care to the plaintiff.

Dr. May, by affidavit, testified that he was an independent contractor for medical services with the jail and that he saw the plaintiff 13 times for treatment while the plaintiff was an inmate. On August 2, 1993, plaintiff reported soreness of his toes and was seen in followup on August 7, 9, and 10 before being referred to the hospital. Dr. May testified that the plaintiff was provided with appropriate medical treatment at plaintiff’s request.

On June 30,1997, the trial court granted the defendants’ motion for summary judgment. Plaintiff filed a timely notice of appeal.

The only enumeration of error is that the trial court erred in granting summary judgment. Plaintiff’s theory of liability is based upon 42 USCA § 1983 in that his right to due process and Eighth Amendment right not to be subject to cruel and unusual punishment were violated by not being provided proper, adequate, and timely medical attention while he was an inmate under the defendants’ custody and control. Such allegations are without merit.

1. Eighth Amendment Analysis. “Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. . . . Whitley v. [Albers, 475 U. S. 312, 319 (106 SC 1078, 89 LE2d 251) (1986)].” (Punctuation omitted.) Alford v. Osei-Kwasi, 203 Ga. App. 716, 718-719 (2) (418 SE2d 79) (1992); accord Webb v. Carroll County, 229 Ga. App. 584 (494 SE2d 196) (1997).

“To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, [429 U. S. 97, 104 (97 SC 285, 50 LE2d 251) (1976)], it must be shown that [Cantrell’s] treatment was 'so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.’ Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986).” Alford v. Osei-Kwasi, supra at 722-723 (6); accord Webb v. Carroll County, supra.

The facts and circumstances of this case fail to reach this standard. Therefore, the trial court did not err in granting summary judgment to the defendants on Cantrell’s claims under the Eighth Amendment.

2. 42 USCA § 1983 Analysis. “The allegations of one denied medical attention and incarcerated [when injured] have been held to state a cause of action under 42 USCA § 1983. Hughes v. Noble, 295 F2d 495 (5th Cir. 1961). The federal courts have demonstrated concern that where needed medical care is refused the denial or improvident delay of such aid may constitute deprivation of constitutional due process. Fitzke v. Shappell, 468 F2d 1072 (6th Cir. 1972).” Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982).

However, plaintiff must establish a causal connection between any policy of inadequate medical care or omissions of medical care and the constitutional deprivation of due process rights. City of Roswell v. Davis, 255 Ga. 158,163 (335 SE2d 582) (1985). “A plaintiff in a § 1983 action must show (1) that he has been deprived of a right secured by the constitution and laws of the United States, and that (2) the defendant acted under color of state law. The Supreme Court then set forth an analysis of the under-color-of-state-law part of the foregoing two-part requirement. The conduct causing the deprivation must be fairly attributable to the state in order to be conduct under-color-of-state-law. This is characterized as the fair attribution test. It is itself broken into a two part approach which we outline here for ease in application to the facts of this case[:] A. The deprivation must be caused by: (i) The exercise of some right or privilege created by the state, or (ii) a rule of conduct imposed by the state, or (iii) a person for whom the state is responsible. B. The party charged with the deprivation must be a state actor in that: (i) He is a state official, or (ii) he has acted together with or has obtained significant aid from state officials, or (iii) his conduct is otherwise chargeable to the state. A and B are separate requirements each of which is necessary to establish conduct under-color-of-state-law.” (Punctuation omitted.) Poss v. Moreland, 253 Ga. 730, 731-732 (324 SE2d 456) (1985).

Any acts or omissions in failing to diagnose and treat plaintiff appropriately were those of Dr. May in his professional capacity as an independent contractor physician. Therefore, any deprivation was caused by someone for whom the defendants were not responsible, and his conduct is not chargeable to the defendants as imputed liability. Plaintiff failed to show a causal connection between the deprivation of his constitutional rights and his untreated infection, because the defendants provided and arranged repeated medical attention over 13 times through Dr. May. The trial court did not err in granting summary judgment to the defendants.

3. Tort Theory Analysis. Also the plaintiff has asserted a number of claims under various state tort theories to which the defendants asserted a defense of sovereign and official immunity.

Under the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, sovereign immunity has been held to extend to all levels of the political subdivisions of the state. Gilbert v. Richardson, 264 Ga. 744, 747 (452 SE2d 476) (1994); see also OCGA § 50-21-22 (5); Woodard v. Laurens County, 265 Ga. 404 (456 SE2d 581) (1995); Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (414 SE2d 638) (1992); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995). The 1991 amendment reads as follows: “Except as specifically provided by the General Assembly in a State Tort Claims Act,[] all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” (Emphasis supplied.) Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d).

4. Ministerial Acts Analysis. A ministerial function has been defined as “one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” (Punctuation omitted.) Vertner v. Gerber, 198 Ga. App. 645, 646 (402 SE2d 315) (1991). Further, the term “official function” was interpreted to mean “any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under [these] definition[s], the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure.” (Emphasis supplied.) Gilbert v. Richardson, supra at 753; accord Seay v. Cleveland, 228 Ga. App. 836 (493 SE2d 30) (1997).

Providing adequate medical attention for inmates under defendants’ custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion to provide medical care, because medical care is a fundamental right and is not discretionary in requiring medical care; thus, such act is not subject to either sovereign immunity or official immunity. OCGA §§ 42-4-4 (a) (2); 42-5-2 (a); Davis v. City of Roswell, supra, 250 Ga. at 8; Johnson v. Mayor cfee. of Carrollton, 249 Ga. 173 (288 SE2d 565) (1982); Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530 (428 SE2d 374) (1993); Webb v. Carroll County, supra; Cherokee County v. North Cobb Surgical Assoc., 221 Ga. App. 496, 499 (2) (471 SE2d 561) (1996); Alford v. Osei-Kwasi, supra. In contrast, the determination of what medical treatment to provide is an act of discretion subject to official immunity. See Schmidt v. Adams, 211 Ga. App. 156, 157 (438 SE2d 659) (1993). Here, however, plaintiff contended that it was the failure to provide adequate medical care that created liability and not the choice of treatment by the health care provider. Thus, sovereign and official immunity are not applicable, and the trial court erred in finding otherwise. However, for the reasons that follow, the trial court’s grant of summary judgment was correct as a matter of law.

5. Sheriff’s Bond Analysis. Also applicable to this case, the requirement of the posting of bond under OCGA § 15-16-5 waived sovereign and official immunity for acts and omissions that come under the bond coverage. The amendment in Ga. L. 1994, p. 747, was passed by the General Assembly after the 1991 amendment, and the General Assembly had the clear intent that the sheriff and deputy sheriffs continue to be liable under bond, notwithstanding the 1991 constitutional amendment. A sheriff’s bond under OCGA § 15-16-5 is a statutorily mandated written contract with the claimant as the designated third-party beneficiary; such statutory bond comes within the written contract exception of Art. I, Sec. II, Par. IX (c) of the Georgia Constitution of 1983, which is subject to the limitations of Gilbert v. Richardson, supra, for tort actions for discretionary acts. See Merrow v. Hawkins, 266 Ga. 390, 391 (467 SE2d 336) (1996); Seay v. Cleveland, supra; Schmidt v. Adams, supra at 157.

6. Independent Contractor Analysis. In addition, had Dr. May been an employee of the sheriff rather than an independent contractor, his acts would have been discretionary in diagnosing and choosing a course of treatment. See Schmidt v. Adams, supra at 157. As a government employee-physician, he would have had the protection of official immunity for medical malpractice. Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997); Swofford v. Cooper, 184 Ga. App. 50, 53 (2) (360 SE2d 624) (1987), aff’d, 258 Ga. 143 (368 SE2d 518) (1988). However, as an independent contractor working for the government, he was not an employee within the meaning of either the 1991 amendment or OCGA § 50-21-21 (b) and did not have official immunity. See Keenan v. Plouffe, supra at 792-793; Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988); Swofford v. Cooper, supra at 53. Unlike Gilbert v. Richardson, supra, the sheriff had no liability under respondeat superior, because Dr. May was not his employee and was an independent contractor physician exercising his independent professional judgment and discretion. Thus, any negligence of Dr. May could not be imputed to the defendants. OCGA § 51-2-4; Lee v. Satilla Health Svcs., 220 Ga. App. 885 (470 SE2d 461) (1996); Gray v. Vaughn, 217 Ga. App. 872, 874-875 (2) (460 SE2d 86) (1995).

7. Proximate Cause Analysis. Moreover, no act or omission by the defendants was either the proximate cause or a concurrent proximate cause of plaintiff’s injury; the cause or supervening cause, if any, was the treatment by Dr. May. “Here, the evidence, without question, leads only to the conclusion that [the defendants were] not the proximate cause of [plaintiff’s] injuries. [Plaintiff was injured as the result of an accident and such closed injury became infected and worsened, not by any acts or omissions of the defendants, but by the allegedly negligent acts and omissions of the independent contractor physician, Dr. May.] Although ordinarily a jury question, lack of proximate cause may be decided as a matter of law when the causal connection between the defendants’] conduct and the injury is too remote for the law to countenance a recovery. (Citation and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (397 SE2d 576) [(1990)]. Thus, the question of proximate cause could be decided as a matter of law by the [trial] court. Atlanta Obstetrics &c. v. Coleman, [260 Ga. 569, 570 (398 SE2d 16) (1990)].” Deese v. NationsBank of Ga., 222 Ga. App. 275, 277 (2) (474 SE2d 18) (1996); see also Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982); Olympia Svcs. v. Sherwin Williams Co., 224 Ga. App. 437, 439 (1) (480 SE2d 883) (1997). To determine remoteness as a matter of law, “the inquiry is not whether the defendants’] conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.” (Punctuation omitted.) Collie v. Hutson, 175 Ga. App. 672, 673 (334 SE2d 13) (1985), quoting Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983).

Decided March 24, 1998.

Carl V. Kirsch, for appellant.

White, Choate & Watkins, Harry B. White, for appellees.

In sum, the trial court erred in finding that the defendants were entitled to official immunity; however, the grant of summary judgment was correct as a matter of law under the other tort principles discussed above. Thus, the grant of summary judgment must be affirmed, because the judgment was right for any reason.

Judgment affirmed.

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

       The State Tort Claims Act, OCGA § 50-21-20 et seq., does not apply to counties. OCGA . § 50-21-22 (5); Woodard, v. Laurens County, supra at 405.


text:
    A98A0131.
    TOLBERT v. THE STATE.
    (500 SE2d 373)
   Judge Harold R. Banke.

Warner Tolbert was convicted of trafficking in cocaine. In his sole enumeration on appeal, he maintains that the trial court erred in denying his motion for new trial.

This case arose after Miller Abrams, Tolbert’s co-defendant, took a special agent working undercover with the Georgia Bureau of Investigation to Tolbert’s residence. The agent remained in the car, watching while Abrams and Tolbert walked to a shed in Tolbert’s backyard. Abrams then returned with approximately one ounce of cocaine. During a subsequent transaction, Abrams indicated that he had to obtain the contraband from his source, and the agent again accompanied Abrams to Tolbert’s house. Abrams entered the house and returned with four ounces of cocaine. Several months later, the agent arrested Abrams, who pleaded guilty to reduced charges of possession of cocaine and testified that Tolbert was his supplier. Held-.

Decided March 24, 1998.

Boone & Toole, Jack E. Boone, Jr., for appellant.

Daniel J. Craig, District Attorney, for appellee.

The trial court did not abuse its discretion in denying Tolbert’s motion for new trial based on newly discovered evidence. To obtain a new trial on newly discovered evidence grounds, the movant must satisfy the court that (1) he learned of the evidence after the trial; (2) a lack of due diligence did not prevent the evidence from being acquired sooner; (3) the evidence was sufficiently material to probably produce a different result; (4) it was not cumulative; (5) the affidavit of the witness was procured or its absence accounted for; and (6) impeaching the credit of a witness is not the only effect of the evidence. Moore v. State, 268 Ga. 420, 421-422 (2) (489 SE2d 842) (1997); Brantley v. State, 208 Ga. App. 536 (431 SE2d 159) (1993). Failure to establish even one of these elements justifies denial of the motion. Humphrey v. State, 252 Ga. 525, 528 (3) (314 SE2d 436) (1984).

The newly discovered evidence at issue consisted of hearsay statements purportedly made by Abrams which Wendell Washington, an inmate, conveyed to Tolbert at the county jail. According to Washington, the jailed Abrams admitted that he kept drugs in his home and used Tolbert as a ruse, making it appear as though Tolbert was a supplier. Because this evidence operates to impeach Abrams’ testimony, a new trial was not required. Harris v. State, 196 Ga. App. 304, 306 (4) (396 SE2d 288) (1990); Cody v. State, 195 Ga. App. 318, 319-320 (3) (393 SE2d 692) (1990); Hutto v. State, 158 Ga. App. 3, 4 (279 SE2d 278) (1981). The sole authority on which Tolbert relies to refute this conclusion, Gibbons v. State, 248 Ga. 858, 862-864 (286 SE2d 717) (1982), in no way addresses the requisites for successful motions for new trial on newly discovered evidence grounds.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.