author: Beasley, Judge.

text:
    A97A0152, A97A0153.
    DUNN et al. v. CECCARELLI et al.; and vice versa.
    (489 SE2d 563)
   Beasley, Judge.

This case involves challenges to the voting procedures in an election to a seat on the board of a timeshare owners’ association. Lake Tara Townhouse Association III, Inc., a Georgia nonprofit corporation, is a timeshare owners’ association governed by a three-member board of directors, each having a term of three years, one of whom is elected at each successive annual meeting of the association members. In November 1995, Dunn, the president of the association, notified his fellow board members, Bigley and McClellan, that a board meeting would be held on December 7, 1995, to discuss the annual meeting of the timeshare owners on March 23, 1996, that would include the election of the board member to fill Bigley’s position. Bigley was running for re-election, and Ceccarelli was opposing her. McClellan called and said he could not attend the meeting. At that meeting Dunn and Bigley, who constituted a quorum, established guidelines for the board election, which included provisions that (1) authorized Dunn, as President of the association, to cast ballots and proxies for all “weeks” (timeshare units) owned by the association itself; (2) declared that Fairfield Communities, Inc., the corporate successor to the declarant (Fairfield), which still owned unsold weeks, was not a member of the association and was accordingly not entitled to vote those weeks; and (3) that all members would be sent a ballot, including those enrolled in the “Fairshare Plus Program” and other timeshare exchange programs.

The ballots were mailed to the membership, indicating that Bigley had been nominated by the nominating committee for re-election to the board, and that ballots would be counted only if received five days before the annual meeting scheduled for March 23, 1996. Before the final ballot date, Ceccarelli and McClellan brought suit, individually and on behalf of “more than 300 proxies of Lake Tara Townhouse Association III,” for injunctive relief and an accounting, along with a motion for a temporary restraining order against Dunn and Bigley, individually and as board members of the association. The complaint alleged Dunn and Bigley (1) violated election and voting requirements and procedures and (2) breached their fiduciary duty to the association and its members and committed self-dealing. The court issued a temporary restraining order, ordering Dunn and Bigley to produce an accounting of the association members pursuant to OCGA § 14-3-720, extending the deadline for the elections from March 23, 1996 to April 6, 1996, and enjoining Dunn and Bigley from announcing the election results until April 8, 1996, for the court to review the votes cast and to determine their eligibility.

Dunn and Bigley moved for summary judgment. After reviewing the election results, the court determined to treat the parties’ filings together as cross-motions for summary judgment and issued an order stating that Bigley violated her fiduciary duty to timeshare owners by failing to recuse herself when the board voted the proxy units; that she should not have used her position as a board member to cast proxy votes for herself without prior written approval from the proxy owners; and that those proxy votes accordingly could not be counted in the final tally. Dunn and Bigley filed a notice of appeal from this order in the Supreme Court on the jurisdictional ground that the case involved equity, injunctive relief, and an accounting.

In a supplemental order, the court clarified its earlier ruling by stating that (1) the 154 association-owned weeks, voted by Bigley as Board member for herself as candidate, could not be counted; (2) the 55 votes of the declarant Fairfield for weeks it owns would be counted; and (3) the votes cast by Fairfield as proxy holder for unit/ week owners in the Fairshare program who did not otherwise cast their votes would be counted. Dunn and Bigley filed another notice of appeal from this order in the Supreme Court.

Ceccarelli and McClellan moved for contempt, contending Bigley and Dunn refused to count the votes as instructed by the court. In response, Dunn and Bigley filed a motion for enforcement of the supersedeas or, in the alternative, an application for an interim order of supersedeas as pending appeal. The court ruled that the orders issued following its temporary restraining order provide declaratory rather than injunctive relief, and that the notices of appeal accordingly act as supersedeas, requiring that the status quo be preserved. Ceccarelli and McClellan moved to set aside this order, arguing that the supersedeas deprived the court of jurisdiction even to hear the motion for enforcement of the supersedeas. The court denied this motion, from which Ceccarelli and McClellan appealed to the Supreme Court.

Both appeals were transferred to this Court on the ground they involved voting procedures and shareholder rights of nonprofit corporations, as well as supersedeas, and accordingly were not within the Supreme Court’s exclusive jurisdiction.

1. In Case No. A97A0152, in their first enumeration of error, Dunn and Bigley claim that the action was a derivative one, as defined in OCGA § 14-3-740 (1) of the Georgia Nonprofit Corporation Code: “ ‘Derivative proceeding’ means a civil suit in the right of a domestic corporation.” They contend the court erred in failing to address this issue and in failing to grant them summary judgment since in bringing suit, Ceccarelli and McClellan did not comply with OCGA § 14-3-742 (a) of the Georgia Nonprofit Corporation Code. It provides: “No derivative proceeding may be commenced until: (1) A written demand has been made upon the corporation to take suitable action; and (2) Ninety days have expired from the date the demand was made unless the complainant has earlier been notified that the demand has been rejected by the corporation or unless irreparable injury to the corporation would result by waiting for the expiration of the 90 day period.”

No cases have been decided construing this provision of the Nonprofit Corporation Code as it relates to the issues before us. However, “‘unless otherwise specifically noted, the fundamental rules and principles of law of profit and business corporations are equally applicable to nonprofit corporations.’ [Cit.]” Southeast Shippers Assn. v. Ga. Pub. Svc. Comm., 211 Ga. 550, 555 (87 SE2d 75) (1955). Accordingly, we apply authorities relating to business corporations where necessary for our analysis.

(a) Our first determination is whether the claim asserted by McClellan and Ceccarelli was derivative in nature. In a nonprofit derivative suit, a member asserts for the corporation’s benefit rights or remedies belonging to the corporation, not to the member. See 12B Fletcher, Cyclopedia of the Law of Private Corporations, § 5908 (rev. ed. 1995). The wrong which the action seeks to redress is one which the corporation, not the individual, has sustained. Id. The member is a mere nominal party, having no right, title or interest in the claim itself. Id. One of the primary underlying reasons for the derivative action — especially applicable to nonprofits — is to avoid a multiplicity of lawsuits. See Thomas v. Dickson, 250 Ga. 772, 774 (301 SE2d 49) (1983).

The determination of whether a claim is derivative or direct “is made by looking to what the pleader alleged. It is the nature of the wrong alleged and not the pleader’s designation or stated intention that controls the court’s decision.” Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1) (397 SE2d 699) (1990).

McClellan and Ceccarelli contend the suit is one for injunctive relief brought by individuals denied their rights to a fair election procedure. While their prayers included requests for an accounting and access to the membership list, for which a direct action generally would lie, see Smith v. Conley, 158 Ga. App. 191, 192 (1) (279 SE2d 491) (1981), prayers for relief are disregarded in determining whether the action is direct or derivative. 12B Fletcher, supra, § 5912. Moreover, the accounting and membership issues were incidental to the gravamen of the complaint which was that Dunn and Bigley breached their fiduciary duties in the management of the corporation by wrongfully controlling the election results. The general rule is that breach of fiduciary duty actions against corporate officers for harm to the corporation are derivative and not direct. Phoenix Airline Svcs., supra at 585.

A member or director of the association could bring a direct action only if he suffered a special injury as a result of the breach of fiduciary duty. Holland v. Holland Heating &c., 208 Ga. App. 794, 797 (3) (432 SE2d 238) (1993). “[T]o have standing to sue individually, rather than derivatively on behalf of the corporation, the plaintiff must allege more than an injury resulting from a wrong to the corporation. [T]o set out an individual action, the plaintiff must allege either an injury which is separate and distinct from that suffered by other [members], or a wrong involving a contractual right of a [member] which exists independently of any right of the corporation. For a plaintiff to have standing to bring an individual action, he must be injured directly or independently of the corporation.” (Citations and punctuation omitted.) Phoenix Airline Svcs., supra at 586; Grace Bros., Ltd. v. Farley Indus., 264 Ga. 817, 819 (2) (450 SE2d 814) (1994).

Association members enjoy an individual right to vote their unit/ weeks, and a direct action could be maintained by them against the directors who allegedly wrongfully invalidated their votes. See 12B Fletcher, supra, § 5915; Gieselmann v. Stegeman, 443 SW2d 127, 131 (Mo. 1969). Those invalidated unit/weeks holders are not parties to this suit. While Ceccarelli purportedly brought suit individually “and on behalf of more than 300 proxies of Lake Tara Townhouse Association, III, Inc.,” the proxies are not by this designation made parties to this action. See Dinkler v. Jenkins, 223 Ga. 807 (2) (158 SE2d 381) (1967). Moreover, McClellan and Ceccarelli do not maintain that their individual votes were invalidated. Accordingly, they have no standing to assert a direct action on behalf of the proxies.

The right to fair and reasonable election procedures inures to the benefit of all members, and absent the circumstances cited above, a director’s interference with elections does not constitute a separate and distinct injury creating a right of direct action in an individual member. In this instance particularly, the alleged wrongdoing is an injury suffered primarily by the association as a whole: If Ceccarelli replaced Bigley on the board, the balance of power would shift between the two competing interests who were vying for the right to determine the management company for the association.

Only if Dunn and Bigley had owed Ceccarelli and McClellan special fiduciary duties apart from those generally owed by officers or directors to members would they have a direct action. Otherwise, the directors did not owe them any special duties merely because Ceccarelli was a candidate for office. See Stricker v. Epstein, 213 Ga. App. 226, 230 (3) (444 SE2d 91) (1994). See also Burke v. Tenn. Walking Horse Breeders’ &c., Case No. 01A01-9611-CH-00511, 1997 WL 277999 (Tenn. App. May 28, 1997) (candidate for director of nonprofit corporation lacked standing to bring declaratory judgment action on election procedure and his failure to make written demand w;as fatal to derivative action). Compare Adams v. Meyers, 620 NE2d 1298 (Ill. App. 1993) (unsuccessful candidate for board of nonprofit corporation brought derivative action to challenge election-related expenditure; action dismissed for failure to make written demand; candidate did have standing to bring declaratory action challenging election procedures, but failed on the merits). Interference with Ceccarelli’s candidacy was an indirect injury, and indirect injuries to a member or director resulting from direct injury to the corporation do not give rise to a direct action. See 12B Fletcher, supra, § 5911. The court accordingly erred in failing to find the action was derivative.

(b) We turn to whether McClellan and Ceccarelli were required to follow the procedural mandates of OCGA § 14-3-742 (a), by making written demand on the corporation to take action, and waiting 90 days before commencing suit, or if for some reason they were excused from these requirements.

Earlier versions of the Business Corporation Code permitted a shareholder to be excused from the demand requirement if he alleged what efforts he had made to secure initiation of the action by the directors, or why such efforts had not been made. See OCGA § 14-2-123 (c) (repealed). Usually, they had unsuccessfully attempted to seek redress within the corporation, and since it would have been futile to make demand on the wrongdoers, they were excused from the demand requirement. See Harris v. Eagle-Bridges Co., 212 Ga. 599 (94 SE2d 381) (1956); Thrift v. Maxwell, 162 Ga. App. 237, 239 (2) (290 SE2d 301) (1982).

Decided July 16, 1997

Reconsideration denied July 24, 1997

When the Business Corporation Code was revised in 1988, a provision was included mandating ante litem demand be made on the corporation before a derivative suit could be instituted. OCGA § 14-2-742 (1). In 1991, when the nonprofit business corporations code was completely overhauled, provisions for derivative suits were included for the first time. OCGA § 14-3-742 (a) (1) mirrors OCGA § 14-2-742 (1) except that references to “shareholders” refer to “members” in the nonprofit code. Although we have found no case precisely on point relating to either OCGA § 14-2-742 or § 14-3-742, we have observed that the demand requirement is a “procedural prerequisite for asserting [a derivative] claim [under OCGA § 14-2-742 (1)].” McGregor v. Stachel, 200 Ga. App. 324, 325 (1) (408 SE2d 118) (1991). Furthermore, the comments to OCGA § 14-2-742, which are persuasive authority, see McKoon v. Jones, 214 Ga. App. 40, 41 (447 SE2d 50) (1994), state the provision requires that “the demand shall be in writing.” OCGA § 14-2-742, comment 1. “This explicit requirement removes any doubt about the necessity of demand in cases in which such demand should arguably be excused as futile.” Kaplan’s Nadler, Ga. Corporations, Limited Partnerships & Limited Liability Companies, § 14-17 (1996 ed.). We accordingly conclude that the “doctrine of futility,” as it is known in some states, is not applicable in Georgia to business or nonprofit corporation derivative claims. McClellan and Ceccarelli were required to follow the procedures of OCGA § 14-3-742, and the court erred in not entering summary judgment in favor of Dunn and Bigley.

2. Our disposition in Division 1 renders the remaining enumerations in this case and in Case No. A97A0153 moot.

Judgment reversed in Case No. A97A0152. Appeal dismissed as moot in Case No. A97A0153.

McMurray, P. J, concurs. Srriith, J., concurs in the judgment only.

Ronald S. Stevens, William C. Hoitink, for appellants.

Donald B. Kuperman, for appellees.

       The votes were in fact cast by Dunn as president of the association.

       See n. 1.

       McClellan and Ceccarelli made no attempt to have their suit characterized as a class action under OCGA § 9-11-23 to legitimate their claim of representing the 300+ proxy votes. The court would likely have denied the motion on the ground that McClellan and Ceccarelli could not represent a class they were not members of, as discussed above.

       If the defendant does not assert that the claim was derivative, the court may treat the' action as properly brought. 12B Fletcher, supra, § 5912. See Ahn v. Lee, 221 Ga. App. 247 (471 SE2d 38) (1996), a declaratory action brought by directors against other directors challenging a nonprofit corporation’s director election results. The action was brought directly, not derivatively, but the issue was not raised.

       Here no party seeks a declaratory judgment pursuant to OCGA § 9-4-1 et seq.

       OCGA § 14-3-741 provides, “A derivative proceeding may be brought either by any director or by any member or members having 5 percent or more of the voting power or by 50 members, whichever is less.” We note that under this Code section, had the action been brought derivatively, it would have properly been dismissed against Ceccarelli. Only McClellan would have had standing, since Ceccarelli was not a director and presumably did not own five percent or more of the voting power of the association.

       See Moran v. Household Intl., 490 A2d 1059, 1071 (Del. 1985); Powell v. Gant, 556 NE2d 1241 (Ill. App. 1990).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A0167.
    STEDRY et al. v. SUMMIT NATIONAL BANK et al.
    (489 SE2d 862)
   McMurray, Presiding Judge.

M. B. Fred Stedry and his closely held corporations, Investguard, Ltd. (“Investguard”) and SOS Holdings, Inc. (“SOS”), brought this wrongful foreclosure action against Summit National Bank (“Summit”), successor of Vinings Bank & Trust, N.A. (“Vinings Bank”), and Andjar, Inc. (“Andjar”) and Travelbank, Inc. (“Travelbank”), successive assignees of two promissory notes and accompanying security deeds from Investguard and SOS to Stedry (“the commercial paper”) which Stedry pledged as collateral during several loan transactions with Vinings Bank. While Stedry’s claim is based upon foreclosure of his interest in the commercial paper, Investguard’s and SOS’s claims are based upon foreclosure of their respective interests in realty encumbered by the commercial paper. Stedry alleged his interest in the commercial paper was wrongly foreclosed because Summit breached an oral promise — extended by Vinings Bank and confirmed by Summit — to refinance his debt via a five-year promissory note. Investguard and SOS contend their respective interests in the encumbered realty were wrongly foreclosed because the commercial paper was not subject to default. Stedry and Investguard alternatively claim that Summit, Andjar and Travelbank breached Vinings Bank’s and Summit’s agreements to reassign that part of the commercial paper encumbering Investguard’s realty upon Stedry’s reduction of his debt by $150,000.

Summit, Andjar and Travelbank denied liability and joined in filing a motion for summary judgment. The trial court granted this motion, finding that the Statute of Frauds and the parol evidence rule preclude admissibility of Vinings Bank’s and Summit’s alleged oral promises to refinance Stedry’s debt via a five-year loan; that the Statute of Frauds and the parol evidence rule preclude evidence of Summit’s alleged oral promise to reassign that part of the commercial paper encumbering Investguard’s realty upon Stedry’s reduction of his debt by $150,000; that Investguard and SOS were both in default for failing to pay Stedry according to the commercial paper’s terms; and that Stedry did not reduce his debt by $150,000 so as to activate Vinings Bank’s earlier written promise to reassign that part of the commercial paper encumbering Investguard’s realty upon Stedry’s reduction of his debt. We affirm because the law as well as the evidence, construed according to the standard prescribed by Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), support the trial court’s judgment.

On May 9, 1988, Vinings Bank extended a $1,000,000 line of credit to Stedry for the purpose of funding or leveraging real estate loans. Vinings Bank loaned Stedry substantial sums under this line of credit, but Stedry could not keep up with his repayment obligation. So on November 30, 1991, Vinings Bank refinanced the debt with a $300,075 loan. The documents evidencing this transaction (a letter agreement and promissory note) provide that the loan will mature on January 7, 1992; that Stedry’s failure to reduce his debt by $100,000 before December 20, 1991, will trigger another refinancing agreement on January 7, 1992; and that the terms of this refinancing agreement will be as follows: ‘You will agree to assign promissory notes and primary deeds to secure debt, duly recorded, on two of three pieces of property — Marietta Boulevard, Cherokee County and Douglas County. This note will have a maturity date of April 7, 1992. . . . Should a payment be made in an amount not less than $150,000, plus accrued interest during the time which this renewal is outstanding, Vinings Bank will agree to release one of the aforementioned properties.”

Because Stedry did not reduce his debt by $100,000 before December 20, 1991, or satisfy his obligation to Vinings Bank by January 7, 1992, Vinings Bank refinanced Stedry’s debt in accordance with the parties’ November 30, 1991 letter agreement and promissory note. To this end, Stedry executed a $300,075 promissory note (maturing on April 7, 1992) and a collateral assignment agreement in favor of Vinings Bank, pledging his interest in the commercial paper — which included Stedry’s interests (as obligee and grantee) under a promissory note and security deed encumbering Invest-guard’s Douglasville property and a promissory note and security deed encumbering SOS’s Marietta Boulevard property.

When Stedry failed to satisfy the January 7, 1992 promissory note when it matured on April 7, 1992, the parties renegotiated the debt and entered into another loan transaction on July 30, 1992. This debt was also secured by assignment of Stedry’s interests in the commercial paper and is evidenced by a $275,075 promissory note with a maturity date of September 30,1992. But unlike the parties’ January 7, 1992 refinancing agreement, this loan transaction does not contemplate reassignment of any part of the commercial paper in the event Stedfy reduces his debt by $150,000. With regard to security, this new promissory note provides as follows: “SECURITY: I give to you a security interest in the . . . assigned Promissory Note and DSD to M. B. Fred Stedry from Investguard, LTD. dated 12/4/90 in the amount of $315,000.00 [and the] assigned Promissory Note and DSD to M. B. Fred Stedry from SOS Holdings, LTD. dated 4/2/91 in the amount of $235,000.00.”

Stedry failed to satisfy his obligation when the July 30, 1992 promissory note matured on September 30, 1992, and Vinings Bank again renewed Stedry’s debt. This transaction is evidenced by a $250,175 promissory note, dated November 24, 1992, requiring Stedry to tender interest payments “from time to time” and principal reduction payments of $25,000 on December 1, 1992; $37,500 on March 1, 1993, June 1, 1993, September 1, 1993, December 1, 1993, and March 1, 1994; and $37,675 on June 1, 1994. This promissory note also calls for assignment of Stedry’s interests in the commercial paper via the following provision: “SECURITY: I give you a security interest in the . . . assigned Promissory Note and DSD to M. B. Fred Stedry from Investguard, Ltd. dated 12/4/90 in the amount of $315,000.00 [and the] assigned Promissory Note and DSD to M. B. Fred Stedry from SOS Holdings, Ltd. dated 4/2/91 in the amount of $235,000.00.” With regard to Stedry’s obligation to preserve this collateral, the promissory note provides as follows: ‘Tour security interest in the [commercial paper] is ahead of the claims of any other creditor, and I will do whatever you require to protect your interest. . . . If I have given you a security interest in my accounts, I will not settle any account for less than its full value without your written permission. ... I will collect all accounts until you tell me otherwise.”

After Stedry failed to make the required $37,500 principal payment when it came due on June 1, 1993, he once again began negotiating with Vinings Bank to refinance his debt with “a new note for not more than $150,000 to amortize the loan over five years.” And because his debt was reduced by $150,000, Stedry also asked Vinings Bank to reassign that part of the commercial paper encumbering Investguard’s Douglasville property. According to Stedry, Vinings Bank’s Senior Vice President, B. Keith Daniel, agreed to these terms and also “agreed that before the documentation was ready [Stedry] would be paying interest on the balance of the [November 24, 1992 promissory] note.” Although Stedry paid interest according to the terms of the parties’ November 24, 1992 loan agreement, Stedry admitted (during his deposition) that his last principal payment under this promissory note was in August 1993.

Because Vinings Bank was sold to Summit on December 31, 1993, before documents evidencing the parties’ oral refinancing agreement were executed or prepared, Stedry met with Summit’s Chief Executive Officer, David Yu, to complete the deal. Stedry thereafter posted a letter, dated January 27, 1994, to David Yu providing as follows: “As we agreed with Vinings Bank and as confirmed by you, you will release our Douglasville property and prepare a new promissory note amortizing my loan over a 5-year period. As you suggested, your attorneys will prepare a customized note.” In response, Summit forwarded a promissory note to Stedry granting Stedry a five-year renewal loan but not reassigning any part of the commercial paper. Stedry did not execute this promissory note. Instead, he returned the promissory note to Summit with suggested changes. Summit did not respond to these changes.

In April 1994, Summit commenced foreclosure proceedings against Stedry, Investguard and SOS. The foreclosure proceedings against Investguard and SOS were based on the corporations’ alleged failure to pay their respective obligations under the commercial paper. Stedry claimed, however, that Investguard and SOS were not in default because he unilaterally renewed the corporations’ obligations under the commercial paper, extending the commercial paper’s maturity dates to December 31, 1994.

Summit assigned the commercial paper to Andjar before the foreclosure proceedings were complete, and Andjar assigned the commercial paper to Travelbank. Travelbank foreclosed Investguard’s and SOS’s respective interests in the Douglasville and Marietta Street properties, under authority of the commercial paper, in October 1994. Held:

1. Georgia’s Statute of Frauds requires a signed writing for “[a]ny commitment to lend money.” OCGA § 13-5-30 (7). Stedry, Investguard and SOS, nonetheless, urge that this subsection’s reference to a “commitment” refers to oral promises to lend “new” money, not oral promises to refinance existing debts such as the oral promise allegedly extended by Vinings and confirmed by Summit in the case sub judice. We cannot graft such an interpretation on OCGA § 13-5-30 (7)’s clear and unambiguous terms. Courts should construe a statute to give logical and intelligent effect to all of its provisions and refrain from construing the statute in a way that tends to render it meaningless. See Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, 266 Ga. 393, 399 (3) (467 SE2d 875).

Stedry, Investguard and SOS next assert that Stedry’s payment of interest while he was waiting for Vinings Bank and Summit to refinance his debt removed Vinings Bank’s alleged oral promise (as purportedly confirmed by Summit) from the Statute of Frauds. We do not agree. “ ‘In order to remove the alleged oral contract from the Statute of Frauds “(t)he part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract.” (Cit.)’ Katz v. Custom Spray Products, 168 Ga. App. 451, 452 (309 SE2d 663) (1983).” Studdard v. George D. Warthen Bank, 207 Ga. App. 80 (1) (427 SE2d 58). Although Stedry’s payment of interest in the case sub judice may be consistent with Vinings Bank’s alleged oral promise to refinance his debt (as purportedly confirmed by Summit), it was not inconsistent with Stedry’s obligation to pay interest according to the terms of the November 24, 1992 promissory note. Since this promissory note required Stedry to make separate interest payments “from time to time” until his debt was retired on June 1, 1994, evidence that Stedry made interest payments through September 1994 does not invoke part performance or promissory estoppel as an exception to OCGA § 13-5-30 (7). See Ikemiya v. Shibamoto America, 213 Ga. App. 271, 272 (1), 273 (444 SE2d 351).

The trial court did not err in concluding that the Statute of Frauds precludes evidence of Vinings Bank’s alleged oral promise — as purportedly confirmed by Summit — to refinance Stedry’s debt over a five-year period. Likewise, the trial court did not err in concluding that the Statute of Frauds precludes evidence of Summit’s alleged oral promise to reassign that part of the commercial paper encumbering Investguard’s realty upon Stedry’s reduction of his debt by $150,000.

2. Our holding in Division 1 renders it unnecessary to review the trial court’s application of the parol evidence rule.

3. Investguard and SOS contend their respective interests in the collateral realty were wrongly foreclosed in October 1994 because Stedry extended the commercial paper’s maturity dates to December 31, 1994. This assertion is without merit because the express terms of the November 24, 1992 promissory note — “I will collect all accounts until you tell me otherwise” — prohibited Stedry from extending the commercial paper’s maturity dates or otherwise impairing the collateral. Moreover, “[w]hen collateral is duly assigned as security for a debt, the assignee creditor acquires the title to the collateral which the assignor debtor cannot abridge. Darling Shop of Birmingham, Inc. v. Nelson Realty Co., 262 Ala. 495, 79 So.2d 793, 797 (Ala. 1954); Travelers Insurance Co. v. Tallahassee Bank & Trust Co., 133 So.2d 463 (Fla. Ct. App. 1961); 6A C.J.S., Assignments § 82 (1975); see also Wright v. Home Beneficial Life Insurance Co., 155 Ga. App. 241, 270 S.E.2d 400, 402 (1980). . ." F. W. Woolworth Co. v. Buford-Clairmont Co., 769 F2d 1548, 1554 (1985). Since it is undisputed, in the case sub judice, that the commercial paper matured, without payment, before the October 1994 foreclosure sale, the trial court did not err in granting Summit, Andjar and Travelbank’s joint motion for summary judgment with regard to this aspect of Invest-guard’s and SOS’s wrongful foreclosure claims.

Decided July 9, 1997

Reconsideration denied July 24, 1997

Brookins & Cook, O. Jackson Cook, for appellants.

Nelson, Mullins, Riley & Scarborough, Sylvia K. Koehler, John C. Amabile, Sabiston & Smith, Eric R Sabiston, Charles A. Smith, for appellees.

4. Since it is undisputed that Stedry did not reduce his debt by $150,000 before the January 7, 1992 promissory note matured, Stedry cannot rely on the accompanying collateral assignment agreement’s provision that Vinings Bank would reassign that part of the commercial paper encumbering either SOS’s or Investguard’s realty upon Stedry’s reduction of his debt by $150,000. This provision expired and was replaced by the July 30, 1992 promissory note which — unlike the January 7, 1992 loan transaction — did not contemplate reassignment of any part of the commercial paper in the event Stedry reduced his debt by $150,000.

The trial court did not err in granting Summit, Andjar and Travelbank’s joint motion for summary judgment.

Judgment affirmed.

Smith and Ruffin, JJ., concur. Beasley, J, disqualified.

       Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, supra. We extend the following statement of facts based on this perspective.

       This oral agreement is hotly disputed. Vinings Bank’s view of the understanding is reflected in a letter from B. Keith Daniel to Stedry, dated September 14, 1993. This letter provides as follows: “In accordance with previously documented correspondence, Vinings Bank & Trust N.A. will release its security interest in either the SOS Holdings, Inc. Promissory Note or the Investguard, Ltd. Promissory Note as it is your intent to procure a cash sale for either or both properties securing these notes in order to retire your indebtedness owed to Vinings Bank & Trust N.A.” Stedry’s view of the understanding is reflected in his letter to B. Keith Daniel, dated November 24, 1993. This letter provides as follows: “Reference is made to our recent conversations regarding the release of [Investguard’s] Douglasville property and restructuring the payments of my loan with your bank. I trust that you will be able to have all the documents, such as release, new note providing for the amortization over a 5-year period with no penalty for prepayment, ready for signatures before Christmas.... I will pay again the interest by December 1st.”

       Citing OCGA § 24-3-36, Stedry, Investguard and SOS urge under this enumeration of error that Summit cannot deny existence of its obligation to refinance his debt and release Investguard’s Douglasville property because Summit’s CEO, David Yu, did not respond to Stedry’s January 27, 1994 letter setting out the terms of the parties’ oral understanding. This assertion is not supported by the record. It is undisputed that Summit responded to Stedry’s January 27, 1994 letter by forwarding a promissory note to Stedry granting Stedry a five-year renewal loan but not reassigning any part of the commercial paper to Stedry. Summit therefore did not acquiesce to the terms of Stedry’s January 27, 1994 letter.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A0259.
    QUATTLEBAUM v. AMERIBANK, N.A.
    (489 SE2d 319)
   McMurray, Presiding Judge.

This case concerns Ameribank, N.A.’s (“Ameribank”) application to confirm a real property foreclosure sale. The trial court entered an order confirming the sale on September 12, 1994, but later set aside that portion of this order finding that the guarantor, Robert Quattlebaum, Jr., had been personally served with notice of the confirmation hearing. After this judgment was affirmed in Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345 (469 SE2d 462), Ameribank personally served Quattlebaum with a copy of its confirmation application and a document entitled, “NOTICE OF HEARING.” This document begins with the notation, “TO: ROBERT B. QUATTLEBAUM, JR., M.D.,” and provides notice of a hearing on May 20, 1996, “for the purposes of confirming the price obtained ($355,704.44) for [the collateral real] property at the foreclosure sale conducted by Plaintiff on May 3, 1994. . . .” Neither the “NOTICE OF HEARING” document nor Ameribank’s attached confirmation application name Robert B. Quattlebaum, Jr. as a party to the proceedings. The “NOTICE OF HEARING” document closes with the following: ‘You are invited, but not required, to attend the hearing.”

Over Quattlebaum’s objections, the trial court conducted a second confirmation hearing during which Ameribank’s appraiser testified that he examined the subject realty on February 10, 1994, about three months before the foreclosure sale, and that he then gave the property a “final value estimate [of] $400,000.” Based on this testimony and other proof regarding the property’s true market value, the trial court confirmed the foreclosure sale finding “that the bid-in price (in aggregate with the outstanding taxes paid by Ameribank) was within the range shown by evidence as the true market value. . . .” This appeal followed. Held:

1. The trial court did not err in conducting a confirmation hearing after Ameribank’s unsuccessful appeal in Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, supra. Contrary to Quattlebaum’s assertions, the substantive aspect of the confirmation proceedings did not end when the trial court entered an order on September 12, 1994, confirming the foreclosure sale as to the primary debtors. Just as in Rogers v. Fidelity Fed. Sav. &c. Assn., 180 Ga. App. 330, 331 (349 SE2d 7), the trial court’s set-aside order in the case sub judice returned Quattlebaum to the posture he occupied before the first confirmation hearing. Id. at 331. Quattlebaum argues, nonetheless, that Rogers is not controlling because, unlike Rogers, the trial court in the case sub judice set aside only part of the September 12, 1994 confirmation order. This difference, Quattlebaum reasons, placed him at a disadvantage because his position at the second confirmation hearing was contrary to the remaining part of the trial court’s September 12, 1994 confirmation order finding that the encumbered property sold fairly as to the primary debtors. We find no difference in this distinction.

The trial court in Rogers, just as the trial court in the case sub judice, was required to disregard its prior confirmation order and consider anew the issue of whether the encumbered property sold fairly. While Quattlebaum perceives difficulty in escaping prejudice under such circumstances, it is presumed that the trial judge acted properly and provided Quattlebaum with a fair and impartial confirmation hearing. Siegel v. Gen. Parts Corp., 165 Ga. App. 339, 340 (2) (301 SE2d 292).

We also reject Quattlebaum’s argument that the second confirmation hearing unfairly diminished his right to challenge the foreclosure sale because of the two-year interval between the foreclosure sale and the second confirmation hearing. Although Quattlebaum’s appraiser testified that this delay rendered it impossible for him to form an opinion as to the value of the encumbered property’s building, such evidentiary difficulties are often an unavoidable circumstance of confirmation proceedings and are tolerated as a matter for the -trial court’s consideration in weighing the evidence. See Thompson v. Maslia, 127 Ga. App. 758, 763 (4), 764 (195 SE2d 238).

2. Quattlebaum next contends the trial court erred in denying his motion to dismiss, pointing out that he was not named as a party to the confirmation proceedings and that the trial court did not direct that a notice of the confirmation hearing be given to him as required by OCGA § 44-14-161 (c).

In First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565 (197 SE2d 446), aff’d, 230 Ga. 888 (199 SE2d 776), this Court affirmed the trial court’s order dismissing a bank’s claims for a deficiency judgment against individual debtors under seven promissory notes because, unlike the corporate debtor, they were not named as parties in the underlying confirmation petition and the trial court’s rule nisi for the confirmation hearing was directed solely to the corporate debtor. 128 Ga. App. at 566 (3). Because Georgia’s confirmation statute is in derogation of the common law and must therefore be strictly construed, the Court of Appeals held that the individual debtors’ actual notice of the confirmation hearing was insufficient to satisfy the statute’s notice requirements. Id. at 566-567 (4). Similar circumstances appear in the case sub judice. Quattlebaum is not named as a party in the confirmation petition, and he was not given notice of the confirmation hearing by the trial court as required by OCGA § 44-14-161 (c). Ameribank gave Quattlebaum the “NOTICE OF HEARING” document and advised him therein that, “You are invited, but not required, to attend the hearing.” Under these circumstances, we are compelled to reverse the trial court’s denial of Quattlebaum’s motion to dismiss.

Quattlebaum’s third and fourth enumerations of error provide no ground for reversal.

Judgment reversed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

The pivotal issue is whether the notice to debtor Quattlebaum was adequate to serve the purpose contemplated by OCGA § 44-14-161 (c), which requires that “[t]he court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto. . . .”

There is no doubt that personal service on Quattlebaum was made by the sheriff, as we held is necessary in Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, 347 (2) (469 SE2d 462) (1996), and that it was timely. The problem is that the notice was not a rule nisi directed by the court. It was a notice from the attorney for Ameribank. Our first opinion in this case refers to Henry v. Hiwassee Land Co., 246 Ga. 87 (269 SE2d 2) (1980). Although we pointed out that Henry’s footnote regarding the CPA method of service was misinformed as shown in the later case of Vlass v. Security Pacific Nat. Bank, 263 Ga. 296 (430 SE2d 732) (1993), Henry’s holding was not disturbed. Henry, supra at 89, held that the “notice” required in what is now OCGA § 44-14-161 (c) “should have been given to Henry by personal service of the application and rule nisi. . . .” (Emphasis supplied.)

Although Vlass did not expressly state that a rule nisi is necessary, the Court referred to the confirmation proceeding as a “special statutory [one] in which the creditor has invoked the superior court’s supervisory authority over non-judicial foreclosure sales under power.” Vlass, supra at 298 (2). The Court pointed out that the statutory proceeding is for a debtor’s relief “and is in derogation of the creditor’s common-law right to seek a deficiency judgment after nonjudicial foreclosure under power of sale.” Id. The debtor is protected by the proceeding “ ‘from being subjected to double payment in cases where the property was purchased for a sum less than its market value.’ ” First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565, 566 (2) (197 SE2d 446) (1973), aff’d, 230 Ga. 888, 890 (199 SE2d 776) (1973). Some history of the statute is contained in the Supreme Court’s opinion in the case.

Thus I agree that the legislature’s requirements must be followed. Its explicit instruction that “[t]he court shall direct that a notice of the hearing shall be given” does not leave room for the creditor or creditor’s counsel to do it without explicit direction from the court. This is in keeping with the intendment that the whole matter of confirmation, which will allow a deficiency judgment to be pursued by the creditor, be within the supervisory authority of the court. The court can then assure that the notice is adequate and proper at the outset and that it gives the debtor “an opportunity to contest the approval of the sale[ ] before claims for the balance of the indebtedness could be prosecuted against [the debtor].” Kunes, 230 Ga. at 889. The source of the notice is not merely a matter of form.

Although a debtor is not required to be present, and the confirmation will not be automatic if the debtor is absent because the court must still make an independent judgment that the sale brought true market value, OCGA § 44-14-161 (b), the court does not represent the interests of the debtor. The court reaches its judgment based on the evidence brought before it, and when the debtor is absent, the court does so without conflicting evidence of “true market value” presented by the debtor who can investigate and consult other experts.

For this reason also, a rule nisi rather than a notice from the creditor’s counsel is called for (unless the court specifically directs creditor’s counsel to notify the debtor of specified information). As the trial court recognized, a rule nisi is “a specific direction or requirement of a court with respect to performance of some act incidental thereto.” Beck v. Dean, 177 Ga. App. 144, 145 (338 SE2d 693) (1985). By it a court “directs a party [which the debtor is] to show cause why the rule should not be made absolute and will become a ‘rule absolute’ unless such cause is shown.” Id. Thus, in the confirmation context, the sale which has already occurred without court supervision will be approved and the creditor will be authorized to seek a deficiency judgment unless the court is not satisfied by the seller’s evidence that the property brought its true market value.

Here the trial court’s approval of the notice in its final order confirming the sale cannot be considered as an adoption or ratification of the notice given by debtor’s counsel, so as to relate back or otherwise cloak it with legitimacy. The court, in its supervisory capacity, must “direct” the giving of the notice. We are bound to enforce the procedure created by OCGA § 44-14-161 (c).

Decided June 12, 1997

Reconsideration denied July 24, 1997

McCorkle, Pedigo & Johnson, David H. Johnson, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, McCallar & Associates, Mark Bulovic, Jack K. Berry, Jr., for appellee.

While it is true that the debtor was served a detailed notice specifying the purpose of the hearing and attaching a copy of the report of sale and application for confirmation, and that he appeared with counsel and presented expert evidence of value which contradicted the seller’s expert and thus had the full opportunity which the statutory scheme intends, this Court has rejected the application of the harmless error rule to procedural departures in a confirmation proceeding. Chastain Place v. Bank South, N.A., 185 Ga. App. 178, 180 (363 SE2d 616) (1987).

       This sort of guidance, which could easily lull an unrepresented debtor away from the confirmation hearing, provides good reason for OCGA § 44-14-161 (c)’s requirement that the trial court direct that the notice of hearing be given to the debtor.

       The statute does not explicitly require a rule nisi, and whether some other form of notice from the court would suffice is unnecessary to consider; a rule nisi would meet the requirement. In Phillips v. Connecticut Nat. Bank, 196 Ga. App. 477, 478 (396 SE2d 538) (1990), the trial court directed that confirmation hearings be scheduled and ordered the creditor to serve “ ‘a copy of [the] Application and this Order ... at least five (5) days prior to the hearing thereon.’ ” At the confirmation hearing, the debtors’ counsel acknowledged that he received proper notice of the hearing. Id.


author: Pope, Presiding Judge.

text:
    A97A0300.
    WELLS v. THE STATE.
    (489 SE2d 307)
   Pope, Presiding Judge.

A jury convicted defendant Charles Millard Wells of driving under the influence of alcohol to the extent that it was less safe for him to drive. OCGA § 40-6-391 (a) (1). On appeal, defendant contends the trial court committed reversible error in failing to grant defendant’s pretrial motion to suppress and his separate pretrial motion in limine. Finding no error, we affirm.

In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. Dooley v. State, 221 Ga. App. 245 (1) (470 SE2d 803) (1996); State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995). So construed, the evidence in this case, as demonstrated by the testimony found in both the trial transcript and the transcript of the hearing on defendant’s motion to suppress and motion in limine, see White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993), shows that on May 2, 1995, at approximately 11:00 p.m., Officer Smith observed an unoccupied truck with an open door parked on Grant Street. Grant Street is a one-way street running adjacent to a nightclub. While attempting to locate the truck’s owner at the nightclub, Smith saw defendant leaving the club alone. As defendant exited, Smith noticed defendant stumble and smelled the odor of alcoholic beverage on defendant. Continuing to watch defendant, Smith noticed that defendant was unsteady on his feet. Based on his observations and experience, Smith concluded defendant was intoxicated to the extent he would be a less safe driver. Consequently, Smith advised Officer Trawick, who had arrived on the scene as backup, about defendant’s condition and told Trawick not to let defendant drive.

Trawick intercepted defendant after he sat down in the driver’s seat of the only black Infiniti seen in the immediate area, which also was parked on Grant Street. As Smith approached the Infiniti, Trawick finished telling defendant that he should not drive, but instead should call a cab. After agreeing with Trawick, defendant exited the Infiniti and walked back toward the nightclub. Shortly thereafter, Smith observed someone peeping from around the corner of another vehicle and looking at the officers. Suspicious that this person might be defendant, and that he would drive off in the Infiniti as soon as the officers left the area, thereby posing a potential risk to himself and others, Smith directed Trawick to follow him to Grant Street’s nearby intersection with Gloucester Street.

Within two to three minutes of reaching the intersection, Smith and Trawick observed a black Infiniti just like defendant’s moving down Grant Street toward the intersection. Although no traffic violations were observed, Smith turned on his blue lights and stopped the Infiniti when it reached the stop sign located at the intersection. At that time, but not before, defendant was visible as the Infiniti’s driver. Subsequently, based on his previous observations of defendant, Smith placed defendant under arrest and immediately read him his implied consent rights. After testing positive for alcohol on the alco-sensor test, defendant asked to be administered a blood test. Smith told defendant that he must first take the state-administered breath test at the police station, and that thereafter Smith would drive defendant to a local hospital for a blood test. Defendant voiced no objection and agreed to take the state-administered breath test. At the police station, however, although he was given several opportunities to do so, defendant refused to take the breath test by failing to adequately blow into the Intoxilyzer 5000. Thereafter, Smith informed defendant that he would not transport him to the hospital for a blood test.

1. In his first enumeration, defendant argues that the trial court should have granted defendant’s motion to suppress all evidence obtained after the stop of his vehicle on the ground that the stop was illegal under the Fourth Amendment to the United States Constitution. We cannot agree. “The Fourth Amendment authorizes police officers to make brief investigatory stops so long as they are justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.” (Citations and punctuation omitted.) Freeland v. State, 223 Ga. App. 326 (1) (477 SE2d 633) (1996).

Applying the above-mentioned objective standard to the historical facts and circumstances leading up to defendant’s stop, including the particular personal knowledge Smith possessed regarding defendant’s car and condition, the short time frame within which all of the events in question took place and the location of the stop on the same one-way street where defendant’s car had been parked and defendant had been told not to drive, we conclude that the trial court had a substantial basis for determining that a reasonable officer in Smith’s position would have had at least the articulable suspicion necessary to justify stopping the black Infiniti. See Brodie, 216 Ga. App. at 199 (1) (c) (in reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision). And, after visually identifying defendant as the Infiniti’s driver, Smith clearly had probable cause to arrest defendant for driving under the influence of alcohol to the extent that it was less safe to drive based on Smith’s previous observations of defendant.

Consequently, we hold that the trial court did not err in denying defendant’s motion to suppress. We are not persuaded to the contrary by defendant’s reliance on Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994), because the historical facts and circumstances presented in that case are clearly distinguishable from those presented in the case at bar.

2. In his second enumeration, defendant contends that in responding to his request for an independent blood test, Smith’s statement that he would take defendant to a local hospital for the blood test after the state-administered test was completed deprived defendant of the rights afforded him under OCGA § 40-6-392 (a) (3). Specifically, defendant argues that Smith’s statement deprived defendant of his right to choose the place and personnel that would perform any independent test. As such, defendant contends the trial court should have granted his motion in limine to exclude and suppress any mention of defendant’s refusal to take the state-administered breath test on the ground that he was not properly advised of the implied consent law. See State v. Leviner, 213 Ga. App. 99, 100 (3) (443 SE2d 688) (1994) (DUI suspects must be properly advised regarding the implied consent law in order for their refusal to submit to a state-administered test to be admissible). We disagree.

Decided April 3, 1997

Reconsideration denied July 24, 1997

Lane & Crowe, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.

The record in this case shows that upon reading defendant his implied consent rights, Smith specifically advised defendant of his right to an independent test conducted by a person of his own choosing, as OCGA § 40-6-392 (a) (3) required Smith to do. See State v. Hassett, 216 Ga. App. 114 (453 SE2d 508) (1995); State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994). In response, defendant requested an independent blood test but did not specify any choice of personnel to administer the test. Smith had no obligation to ask defendant to make that choice, and in the absence of such an obligation, or any objection at the time to Smith’s mere statement about taking defendant to a nearby hospital, we find no basis for defendant’s claim that he was deprived of any right to which he was entitled. See McDaniel v. State, 218 Ga. App. 555 (462 SE2d 446) (1995). Accordingly, the trial court did not err in denying defendant’s motion in limine.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       Defendant does not argue on appeal that he was actually entitled to any independent chemical test after he refused to take the state-administered breath test.


text:
    A97A0324.
    A97A0325.
    GOINS et al. v. TUCKER et al. SOUTHSIDE HEALTHCARE, INC. v. GOINS et al.
    (489 SE2d 857)
   McMurray, Presiding Judge.

Plaintiff Goins filed this negligence and wrongful death action arising from the stillbirth of her child. The defendants include individual physicians Tucker, Narain, and Overstreet, along with corporate defendants Georgia Baptist Health Care System (“Georgia Baptist”) and Southside Healthcare, Inc. In Case No. A97A0324, plaintiff appeals the grant of partial summary judgment to defendants Tucker and Southside Healthcare, Inc. (“Southside”), as well as the grant of a motion to dismiss plaintiff’s claims against Georgia Baptist for failure to state a claim. In Case No. A97A0325, defendant Southside cross-appeals from the denial of its motion for summary judgment. Held:

1. Based on a conclusion that the OCGA § 9-11-9.1 affidavit filed with the complaint did not attribute any negligent act to the nursing staff of Georgia Baptist, the superior court granted a motion to dismiss plaintiffs claim against this defendant, contained in Count 4 of the complaint, for failure to state a claim upon which relief could be granted. We agree that the affidavit submitted in the case sub judice does not satisfy the statutory mandate with regard to Georgia Baptist.

Of the twelve substantive paragraphs of the affidavit, the first three identify the affiant and state his qualifications. The fourth paragraph lists the medical records reviewed by the affiant. The following six paragraphs are devoted in pairs to the three defendant physicians, each of whom the affiant concludes was negligent and failed to exercise the degree of care generally employed by medical professionals in the field of obstetrics and gynecology under similar conditions and like circumstances for reasons that are stated for each defendant physician.

The remaining paragraphs state:

“11. The parameters of the acceptable standard of medical care that pertains to this instance would dictate that the following apply: a) That available diagnostic techniques be utilized to establish a proper and definitive diagnosis, b) That there be adequate supervision of the personnel administering the care and treatment to mother and child, c) That the diagnosis of fetal distress and abruptio placenta have been timely made and appropriately treated, d) That signs and symptoms of an abruptio placenta be timely attended to.
“12. This affidavit is given pursuant to O.C.G.A. § 9-11-9.1 and is intended to set forth at least one negligent act or omission concerning the care and treatment provided to Bonnifer M. Goins and her child by the named defendants. It is not intended to set forth all acts or omissions amounting to deviations from the acceptable standards of medical care and the opinions expressed herein are subject to modification as discovery progresses and other relevant facts become known.”

Plaintiff seeks a liberal construction of the affidavit stressing that it must be read in conjunction with the complaint. Gadd v. Wilson & Co., 262 Ga. 234, 236 (416 SE2d 285) (Hunt, J., concurring specially). See also Howard v. City of Columbus, 219 Ga. App. 569 (466 SE2d 51); Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102).

However, reference to Georgia Baptist appears on the document only because the caption of the case precedes the affidavit. The body of the affidavit contains no reference to Georgia Baptist or its staff. Even in the Howard case the alleged negligent acts were broadly attributed to the staff of the jail’s health clinic. When examining the affidavit as a whole, the eleventh paragraph is clearly only a summation of the negligent acts attributed to the defendant physicians in the preceding six paragraphs. The expression of intent in the twelfth paragraph cannot serve to remedy a failure to attribute any act of negligence to a party. The affidavit does not meet the requirements of the statute with regard to defendant Georgia Baptist, and this failure subjects Count 4 of the complaint to dismissal for failure to state a claim. Candler Hosp. v. Carter, 224 Ga. App. 425 (480 SE2d 876).

2. Via Count 1 of her complaint, plaintiff seeks to recover from defendant Tucker for her alleged mental and physical pain and suffering. “Any mental suffering or emotional distress [plaintiff] suffered as a result of injuries to her child is not compensable in this claim ” Littleton v. OB-GYN Assoc. &c., 199 Ga. App. 44, 46, fn. 1 (403 SE2d 837), aff’d, OB-GYN Assoc. &c. v. Littleton, 261 Ga. 664 (410 SE2d 121). Defendant Tucker’s motion for summary judgment as to these allegations was predicated on a lack of evidence that he had caused any physical injury to plaintiff. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Plaintiff responded with her affidavit which stated that she suffered physical injuries on September 28, 1992, when she was given an intravenous infusion of Pitocin, when she suffered a vaginal delivery of her child, when she was given an episiotomy, and when she suffered a prolonged, painful labor. While plaintiff was admitted to the hospital and attended by other physicians in the absence of defendant Tucker, there is evidence that this coverage ended at 8:00 a.m. on September 28, 1992, and that from this point in time it was defendant Tucker’s responsibility to acquire knowledge of plaintiff’s presence in the hospital and medical situation. In fact, defendant Tucker spent the morning in question seeing patients and was not informed of plaintiff’s presence in the hospital until past noon, after plaintiff’s child had expired. Under the evidence elicited from plaintiff’s expert, at the time responsibility for plaintiff’s care reverted to defendant Tucker, it would have been proper to induce labor for the purpose of obtaining a vaginal delivery. But labor was not induced at that time, and the medical circumstances evolved so that later in the morning a Caesarean delivery should have been performed. Since plaintiff has presented proof that the negligent failure of defendant Tucker to perform a Caesarean delivery was the cause of her physical injuries, the present case appears indistinguishable from Littleton v. OB-GYN Assoc. &c., 199 Ga. App. 44, supra.

The superior court granted defendant Tucker’s motion for summary judgment based upon an erroneous application of the rule from Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), that unexplained contradictory testimony must be construed against the party providing it. While plaintiff’s affidavit contained additional information concerning her injuries the affidavit did not contradict her earlier interrogatory answers. Littleton v. OB-GYN Assoc. &c., 199 Ga. App. 44, 46, supra. Additionally, plaintiffs testimony did not constitute the only evidence of her injuries since such were documented in her medical records. See Assoc. Hosts of Ga. v. Marley, 184 Ga. App. 352 (1), 353 (361 SE2d 496).

It follows that the superior court’s grant of partial summary judgment in favor of defendant Tucker on Count 1 of plaintiff’s complaint must be reversed. Additionally, the grant of a partial summary judgment as to Count 1 of plaintiff’s complaint in favor of defendant Southside, which is allegedly liable for the negligence of defendant Tucker under the doctrine of respondeat superior, must also be reversed.

3. The superior court also erred in granting in part the motion for summary judgment of defendant Southside by finding that if defendant Tucker was determined to be an independent contractor, he was not an apparent agent of defendant Southside Healthcare, Inc. In Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421, 422 (1) (445 SE2d 270), this Court held that by fiirnishing an attending physician, a hospital is in effect holding him out as its own and calling upon the patient to accept his services based on its own reputation rather than the physician’s so that if the hospital supplied the physician without explicitly informing the patient that the doctor was not its employee the circumstances would be sufficient to support a finding that the hospital held out the doctor as its agent. Defendant Southside Healthcare, Inc., a non-profit community health center, if not a hospital might be viewed as such in many communities since it provided “not only primary health care but specialty care, ancillary type care, lab, pharmacy, x-ray, . . . dentistry, [and] optometry.” In any event it is not suggested that the reasoning of this case is inapplicable to this defendant which is also described as a “clinic.” It is also uncontroverted that defendant Southside did not explicitly inform plaintiff that defendant Tucker was not its employee.

Plaintiff went to Southside on the recommendation of a girl friend to receive prenatal care for an earlier pregnancy. Plaintiff did not have a doctor, and she was provided with defendant Tucker. During her second pregnancy which is at issue in this case, plaintiff went back to defendant Southside Healthcare, Inc. and subsequently requested defendant Tucker. On September 25, 1992, plaintiff, seeking treatment, went to defendant Southside which admitted her to the hospital operated by Georgia Baptist under Tucker’s name. The superior court concluded that Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421, supra, is not controlling since plaintiff picked defendant Tucker based on her experience with him during the first pregnancy, that is, relied on her personal knowledge of him rather than any representation on the part of Southside. However, there is no evidence sufficient to compel a conclusion that plaintiff chose Tucker to be her doctor independent of his affiliation with defendant Southside. When plaintiff chose to return to Southside, she saw a different physician for the initial visit and did not have any initial agreement concerning who would deliver her baby. There is ample evidence authorizing a jury to conclude that defendant Southside held out Tucker as its agent and that plaintiff continued to rely on this representation through her second pregnancy.

4. In Case No. A97A0325, the sole enumeration of error submitted by defendant Southside contends that the superior court erred in finding that an issue of material fact existed with respect to whether Tucker was an independent contractor or its employee, thereby denying its motion for summary judgment with respect to this issue. In this regard, we note that the labels ascribed by the contract between defendant Southside and Tucker are not determinative of their legal relationship. Gray v. John R. Vaughn, M.D., P.C., 217 Ga. App. 872, 874 (2) (460 SE2d 86).

In Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 895 (2) (354 SE2d 632), this Court acknowledged the traditional “time, manner, and method” test used to determine the nature of relationships between hospitals and physicians, but also noted various anomalies apparent in the cases involving the application of this test. Therefore, it is not surprising that we endeavor to better define the factors which are considered in making these determinations. In that vein, Lee v. Satilla Health Svcs., 220 Ga. App. 885, 886 (1) (470 SE2d 461), acknowledged federal cases articulating “several factors which were frequently considered by the Georgia courts in making that determination.” Id. at 886 (1).

Factors in Tucker’s relationship with defendant Southside which suggest an employer-employee relationship include Southside’s contribution to Tucker’s medical malpractice insurance. Allrid v. Emory Univ., 249 Ga. 35, 40 (285 SE2d 521). Additional factors include that Tucker contracted to perform services rather than only to accomplish tasks, that defendant Southside provided the equipment with which Tucker performed his job, and the method of payment in that Tucker was paid by the hour. Furthermore, a provision in Tucker’s contract that he must “[pjerform related work as required and other duties assigned by the Health Services Director” raises at least a jury issue as to Southside’s “right to make additional plans and specifications; to impose its will in lieu of the contract’s provisions; and to direct the employee’s work step by step.” Lee v. Satilla Health Svcs., 220 Ga. App. 885, 886 (1), supra.

Other factors suggest that Tucker was an independent contractor. These include the absence of. any right for Southside to inspect Tucker’s work, the highly skilled nature of the work involved, and the absence of control by Southside over Tucker’s time. Id. at 886 (1).

Since the foregoing does not conclusively establish whether Tucker was an employee or independent contractor, summary judgment was not appropriate. Therefore, we affirm the judgment in the cross-appeal.

Judgment affirmed in Case No. A97A0325. Judgment affirmed in part and reversed in part in Case No. A97A0324.

Senior Appellate Judge Harold R. Banke concurs. Smith, J, concurs in the judgments only.

On Motion for Reconsideration.

Plaintiff’s first enumeration of error contends that: “The trial court erred in ruling that in the [OCGA §] 9-11-9.1 affidavit filed with the complaint, Plaintiff Bonnifer Goins failed to attribute any specific act of negligence to the nursing staff of Defendant Georgia Baptist Healthcare System, thereby granting Defendant Georgia Baptist Healthcare System’s Motion to Dismiss Count IV of the Complaint for Failure to State a Claim.” The argument in support of this enumeration of error contained in plaintiff’s brief to this Court is limited to maintaining that the affidavit filed with the complaint is sufficient to link defendant Georgia Baptist to an act of negligence. We rejected this argument in Division 1 of the opinion.

Following the filing of plaintiff’s enumerations of error and brief, this Court decided the case of Washington v. Ga. Baptist Med. Center, 223 Ga. App. 762 (478 SE2d 892), which plaintiff cited at oral argument and thereafter by letter brief, along with Hewitt v. Kalish, 264 Ga. 183 (442 SE2d 233), as authority that the affidavit filed with the complaint was amended by a second affidavit of plaintiff’s expert which cured any insufficiency of the original affidavit. The motion for reconsideration expresses concern that the opinion is silent as to the effect of these cases.

Washington and Hewitt were not cited in the opinion because they have no relevance to the issues raised by plaintiff’s enumeration of error. Whether reading the enumeration alone or as explained by the argument contained in the supporting brief, the issues raised and argued relate only to the sufficiency of the affidavit filed with the complaint. Plaintiff’s enumerations of error fail to present the issue now argued by plaintiff, whether an insufficient original affidavit has been cured by a second affidavit. An enumeration of error may not be enlarged at the appellate level to include issues not originally submitted, and matters not enumerated as error may not be considered on appeal. Moreland Auto Stop v. TSC Leasing Corp., 216 Ga. App. 438, 441 (3) (454 SE2d 626); Brantley v. Edwards, 197 Ga. App. 713, 714 (3) (399 SE2d 215); Sentry Ins. v. Majeed, 194 Ga. App. 276, 277 (1) (390 SE2d 269); Roth v. McDaniel Enterprises, 192 Ga. App. 16, 18 (2) (383 SE2d 569).

Decided July 3, 1997

Reconsideration denied July 24, 1997

Ellerin & Associates, Irwin M. Ellerin, Mia I. Frieder, DeLong, Caldwell & Wisebram, Steven R. Wisebram, for Goins et al.

Love & Willingham, Kimberly L. Woodland, for Tucker.

Duvall, McCumber & Doverspike, Michael G. Frick, for Georgia Baptist Health Care System.

Schnader, Harrison, Segal & Lewis, James M. Hunter, Mary A. Hall, Timothy H. Kratz, for Southside Healthcare, Inc.

Plaintiff’s motion for reconsideration is denied.


author: Ruffin, Judge.

text:
    A97A0396.
    VULCAN MATERIALS COMPANY v. PRITCHETT.
    (489 SE2d 558)
   Ruffin, Judge.

We granted Vulcan Materials Company’s (‘Vulcan”) application for discretionary appeal in this workers’ compensation case. The administrative law judge (“ALJ”) ordered Vulcan to resume payment of temporary total disability benefits to claimant Terry Pritchett and to pay certain medical bills Pritchett incurred with “unauthorized” physicians. The appellate division of the Workers’ Compensation Board affirmed the award, and Vulcan’s appeal to the superior court was rejected and sanctioned with an award of attorney fees to Pritchett’s counsel, pursuant to OCGA § 9-15-14. For reasons which follow, we affirm.

The record shows that on July 18,1994, the ALJ awarded Pritchett temporary total disability benefits after finding he had suffered a work-related injury in 1993. It appears that while lifting a heavy object, Pritchett aggravated his pre-existing degenerative disc disease. Vulcan, Pritchett’s employer, paid pursuant to that award until October 1994, when it unilaterally suspended payments because Pritchett’s authorized treating physician released him to return to work with no restrictions. Pritchett disagreed with the doctor’s assessment and claimed the work injury continued to disable him. He requested and received a hearing on this issue and also sought payment of medical expenses he incurred from physicians who treated him after the authorized physician released him to work. That hearing resulted in the rulings which formed the basis for this appeal.

Vulcan’s first two enumerations of error challenge the award of disability benefits and medical expenses. “ ‘In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.’ . . . [Cits.]” Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996). Furthermore, we will affirm the award of benefits if it is right for any reason. Dasher v. City of Valdosta, 217 Ga. App. 351, 353 (1) (457 SE2d 259) (1995).

1. In its first enumeration of error, Vulcan contends Pritchett did not carry his burden of proving his continuing disability was caused by the work injury rather than the pre-existing condition. Although the ALJ did place this burden of proof on Pritchett, it did so in error. When an employer unilaterally suspends benefits on the assertion that the employee has the ability to return to work, it is the employer’s burden to justify that action. Molden, supra at 391; Johnson Controls v. McNeil, 211 Ga. App. 783, 785 (1) (440 SE2d 528) (1994); Ga. Power Co. v. Leonard, 215 Ga. App. 383, 384 (1) (451 SE2d 74) (1994). The two cases which Vulcan cites in support of its position, Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987), and Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200 (345 SE2d 904) (1986), are easily distinguished: neither of those cases involves a workers’ compensation claim. In this case, the ALJ previously determined in an unappealed ruling that Pritchett was entitled to receive temporary total disability benefits as a result of his on-the-job injury. To suspend those benefits, Vulcan was required to prove that Pritchett was no longer disabled as a result of that injury. Johnson Controls, supra at 785-786.

Vulcan argues that the only testimony on the issue of causation was that of Dr. Burkus, Pritchett’s treating physician, who released him to work without restriction. However, if this testimony was presented, it has not been included in the record on appeal. “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citation and punctuation omitted.) Mike’s Garage Door Co. v. Dews, 220 Ga. App. 648, 649 (469 SE2d 855) (1996). Furthermore, “[i]f there was insufficient evidence regarding the issue of whether the initial injury continued to be disabling, then the employer failed to meet its burden of proving a change in condition for the better. Since the employer was unable to justify its suspension of benefits, benefits should have continued based on the initial injury.” Johnson Controls, supra at 786 (1).

Decided July 11, 1997

Reconsideration denied July 24, 1997

2. Vulcan also claims the ALJ erred by awarding Pritchett medical expenses he incurred with physicians other than his authorized treating physician. Pritchett testified that even though he continued to suffer disabling symptoms, Dr. Burkus released him to work with no restrictions and he was required to seek treatment from these other providers. The ALJ found that these other physicians agreed that Pritchett continued to have disabling limitations. A medical record in evidence indicates that when he released Pritchett to return to work, Dr. Burkus stated he would see Pritchett again “if he has any change in his symptoms.”

The ALJ was authorized to find Pritchett justified in seeking treatment with doctors other than the authorized physician if she found Pritchett “ ‘had been dismissed from treatment as cured even though still in need of treatment. . . .’ [Cit.]” Bel Arbor Nursing Home v. Johnson, 192 Ga. App. 454 (385 SE2d 315) (1989). See also Wright v. Overnite Transp. Co., 214 Ga. App. 822, 823 (1) (449 SE2d 167) (1994). She found, in fact, that Dr. Burkus “is of the opinion that there is nothing further to offer the employee in the way of medical treatment.” In support of its argument that the authorized physician was ready, willing, and able to continue treating Pritchett, Vulcan cites Dr. Burkus’ deposition testimony. Once again, Vulcan’s appeal suffers from a fatal void in the record, and we must presume the trial court properly resolved this issue in Pritchett’s favor. See Dews, supra.

3. In its final enumeration of error, Vulcan contends the superior court erred by finding its appeal from the appellate division “frivolous” and awarding Pritchett attorney fees pursuant to OCGA § 9-15-14. As we held in Contract Harvesters v. Clark, 211 Ga. App. 297, 298 (2) (439 SE2d 30) (1993), however, such a sanction may be levied where a party appeals a workers’ compensation decision to the superior court without substantial justification. The imposition of that sanction is a matter for the trial court’s discretion, and we review its ruling only for abuse of discretion. Id. at 300. Here, despite the fact that the ALJ erred in its favor by improperly imposing on Pritchett the burden of proof, Vulcan appealed her decision to the superior court. Because we found in Divisions 1 and 2 that Vulcan’s legal arguments had no merit, we find no abuse of discretion. .

Judgment affirmed.

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

Hamilton, Westby, Marshall & Antonowich, Andrew J. Hamilton, Gregory J. Crabb, for appellant.

Samuel W. Oates, Jr., for appellee.


author: Andrews, Chief Judge.

text:
    A97A0489.
    DIXON v. THE STATE.
    (489 SE2d 532)
   Andrews, Chief Judge.

Bobby Ray Dixon was found guilty by a jury on two counts of driving a moving yehicle while under the influence of alcohol. In Count 1, he was found guilty of being under the influence to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)), and in Count 2, he was found guilty of driving with an unlawful alcohol concentration level in his blood (OCGA § 40-6-391 (a) (4)). The trial court merged Count 2 into Count 1 and sentenced Dixon only on Count 1. Dixon appeals from the judgment entered on the conviction.

The State produced evidence that, while Dixon was riding his motorcycle, he collided with another vehicle and was seriously injured. He was taken from the scene of the accident by helicopter to a hospital for medical treatment. A nurse on the hospital trauma team that initially assessed and treated Dixon upon his arrival at the hospital testified that there was a strong odor of alcohol about Dixon’s person and on his breath. In order to determine the amount of alcohol in Dixon’s • system for the purpose of rendering medical treatment, blood was drawn from Dixon and tested for alcohol content by the hospital’s laboratory. A hospital record of the blood test result was admitted into evidence showing Dixon’s alcohol level at “.21.” The trauma team physician who treated Dixon upon his arrival at the hospital gave testimony establishing that the test results indicated a blood alcohol concentration of .21 grams percent. In addition, the State presented testimony from the trauma team nurse and physician that, in their expert opinions, Dixon was under the influence of alcohol upon his arrival at the hospital to the extent that his motor abilities and reaction time were impaired by alcohol.

1. The evidence was sufficient to allow the jury to conclude that Dixon was under the influence of alcohol to the extent that he was a less safe driver under Count 1. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Animashaun v. State, 216 Ga. App. 104, 105-106 (453 SE2d 126) (1995); Dudley v. State, 204 Ga. App. 327 (419 SE2d 138) (1992).

2. In his first enumeration of error, Dixon claims the trial court erred by charging the jury pursuant to OCGA § 40-6-392 (b) (3) on the permissive inference that may be drawn that a person was under the influence of alcohol and, therefore, a less safe driver as prohibited by OCGA § 40-6-391 (a) (1), based on evidence showing an alcohol concentration of 0.08 grams or more in the person’s blood. See Holcomb v. State, 217 Ga. App. 482, 484-485 (458 SE2d 159) (1995); Ellerbee v. State, 215 Ga. App. 102, 104-105 (449 SE2d 874) (1994). He claims the inference allowed under OCGA § 40-6-392 (b) (3) does not apply to the hospital-administered blood test introduced by the State because that test was not done in compliance with the procedures for administration of tests set forth in OCGA § 40-6-392 (a).

Subsection (a) of OCGA § 40-6-392 requires compliance with certain procedures before a test will be considered valid under the Code section. The procedures for conducting valid tests set forth in subsection (a) were designed by the legislature as safeguards to minimize the possibility of erroneous results in tests administered by the State for the purpose of showing that a person was in violation of OCGA § 40-6-391. Lattarulo v. State, 261 Ga. 124, 126-127 (401 SE2d 516) (1991); Jackson v. State, 196 Ga. App. 724, 726 (397 SE2d 13) (1990). These procedures apply only to State-administered tests and not to alcohol level tests administered by a hospital for the purpose of assisting in a person’s medical treatment. Id. at 726; Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 820 (278 SE2d 669) (1981).

It is clear, however, that, in addition to State-administered alcohol level tests, tests to determine alcohol level not performed at the request or direction of the State, like the hospital-administered test in this case, may also be admitted pursuant to the applicable rules of evidence as proof of alcohol concentration levels in criminal or civil cases. Oldham v. State, 205 Ga. App. 268, 269 (422 SE2d 38) (1992); Bynum, supra. In reference to these tests, subsection (b) of OCGA § 40-6-392 provides that, except as to certain provisions of OCGA § 40-6-391 relating to commercial vehicles, “upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance, shall give rise to the following presumptions. . . .” Although subsection (b) is worded in terms of a presumption, it “actually has the effect of defining the level of blood-alcohol that is sufficient to permit an inference that the driver is ‘under the influence.’ ” Lattarulo, supra at 125 (1). Nothing in subsection (b) of the statute limits its application to the State-administered tests which must comply with the procedures set forth in subsection (a) of the statute. Accordingly, it is not necessary that a blood alcohol level test administered by a hospital in providing medical treatment be performed in compliance with the procedures of OCGA § 40-6-392 (a) in order to be considered a valid test for the purpose of applying the inferences permitted under OCGA § 40-6-392 (b).

The trial court did not err in charging the jury on the permissive inference set forth in OCGA § 40-6-392 (b) (3).

3. Dixon’s second and third enumerations of error both concern alleged errors relating to the guilty verdict on Count 2. Since the trial court merged the conviction on Count 2 with the Count 1 conviction and sentenced Dixon only on Count 1, the Count 2 conviction stands vacated by operation of law, and Dixon’s enumerations as to Count 2 are moot. Wade v. State, 258 Ga. 324, 326 (368 SE2d 482) (1988).

4. In his final enumeration of error, Dixon contends the trial court erred by admitting the hospital record showing the test results of the hospital-administered test of his blood alcohol level. He objected at trial and argues on appeal in support of this enumeration that: (1) the trial court erred by admitting the hospital record under the business record exception to the hearsay rule because the State failed to lay a proper foundation, and (2) admission of the hospital record as evidence of the test results denied him his Sixth Amendment right of confrontation.

The State laid a proper foundation for admission of the document as a business record pursuant to OCGA § 24-3-14. The document was a computer printout of the test results which were electronically stored in the hospital’s computer system. A nurse on the hospital trauma team which ordered the blood alcohol test testified that, when the test was completed by the hospital laboratory, the test results were entered into the hospital’s computer system and stored there in the normal course of business. She testified that it was normal procedure for the electronically stored test results to be entered and ready for printout within 20 to 30 minutes of completion of the test. She identified the document reflecting the test result as a computer printout of the test results for Dixon, which had been entered and stored in the hospital’s computer system.

Moreover, the record reflects that the computer printout of the test results contained only objective, factual data generated as the product of routine, mechanical tests commonly employed by certified medical technologists in the hospital’s accredited laboratory. Since the test results were not generated as the result of opinions or conclusions of third parties not before the court, it was not necessary to produce additional foundation testimony from those parties. Compare Malcolm v. State, 263 Ga. 369, 370-371 (434 SE2d 479) (1993); Moody v. State, 244 Ga. 247, 249 (260 SE2d 11) (1979); Spivey v. State, 184 Ga. App. 118 (361 SE2d 9) (1987).

There is no merit to Dixon’s additional claim that it was error to admit along with the document showing the test results a certification by the hospital’s records custodian that the document was a true and accurate reproduction of the original record. If anything, this provided an additional foundation for admission of the document pursuant to OCGA § 24-7-8. McCall v. Parker, 177 Ga. App. 774, 775 (341 SE2d 303) (1986).

The trial court did not err in finding a sufficient foundation for admission of the hospital record as a business record exception to the hearsay rule pursuant to OCGA § 24-3-14. Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (430 SE2d 813) (1993); WGNX, Inc. v. Gorham, 185 Ga. App. 489, 490-491 (364 SE2d 621) (1988); Spivey, supra.

Dixon also claims that admission of the hospital record showing the blood alcohol test result violated his right under the Confrontation Clause embodied in the Sixth Amendment to confront and cross-examine the person or persons who did the testing.

The Confrontation Clause guarantees a criminal defendant the right to encounter and cross-examine the witnesses against him under the Sixth Amendment to the U. S. Constitution. Higgs v. State, 256 Ga. 606, 608 (351 SE2d 448) (1987). “ ‘The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ Maryland v. Craig, 497 U. S. 836, 845 (110 SC 3157, 111 LE2d 666) (1990).” Miller v. State, 266 Ga. 850, 853 (472 SE2d 74) (1996). Thus, the admission of the hospital record under the business record exception to the hearsay rule to prove the result of the blood alcohol test, without giving Dixon an opportunity to confront and cross-examine the person who performed the test, would appear on its face to violate the Confrontation Clause guarantee. The U. S. Supreme Court, however, has refused to interpret the Confrontation Clause literally as an absolute bar to the admission of evidence under exceptions to the hearsay rule. Idaho v. Wright, 497 U. S. 805, 813-814 (110 SC 3139, 111 LE2d 638) (1990); Miller, supra at 853.

In Ohio v. Roberts, 448 U. S. 56, 66 (100 SC 2531, 65 LE2d 597) (1980), the Court held that, “when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Roberts and subsequent decisions have recognized that the business records exception is such a firmly rooted hearsay exception. Id. at 66, n. 8; United States v. Ismoila, 100 F3d 380, 392 (5th Cir. 1996); United States v. Norton, 867 F2d 1354, 1363 (11th Cir. 1989); Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997). Moreover, it is not necessary under the firmly rooted business records exception to establish the unavailability of the hearsay declarant. See United States v. Roulette, 75 F3d 418, 422 (8th Cir. 1996); Norton, supra at 1363; compare White v. Illinois, 502 U. S. 346, 354-357 (112 SC 736, 116 LE2d 848) (1992); United States v. Inadi, 475 U. S. 387, 399-400 (106 SC 1121, 89 LE2d 390) (1986); Miller, supra at 854; Barnett v. State, 211 Ga. App. 651, 652 (440 SE2d 247) (1994).

Decided June 27, 1997

Reconsideration denied July 24, 1997

Larry W. Yarbrough, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Rebecca A. Hulsey, Assistant Solicitors, for appellee.

Under circumstances similar to the present case, we have found that the results of blood tests to determine a defendant’s alcohol concentration level administered by a hospital to provide medical treatment for the defendant were admissible pursuant to OCGA § 24-3-14, upon proper foundation testimony, as business record exceptions to the hearsay rule without testimony from the persons performing the tests. Oldham, supra; Jackson v. State, supra at 725-726; see Bynum, supra at 820-821. Under OCGA § 24-3-14, such test results, like the test results in the present case, were recognized as the inherently reliable products of routine, mechanical testing by the hospitals comprising purely factual data maintained by the hospitals in the regular course of business and containing no opinions or conclusions of third parties not before the court.

“ £(W)here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. . . . (A) statement that qualifies for admission under a “firmly rooted” hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability. (Cit.) . . .’ [White, supra,] 116 LE2d at 859-860.” Barnett, supra at 652. Because the hospital record showing Dixon’s blood test results was properly admitted pursuant to OCGA § 24-3-14 as a business records exception to the hearsay rule, it bore an “indicia of reliability” sufficient to satisfy the Confrontation Clause. See Brown, supra.

The trial court correctly denied Dixon’s objection to admission of the hospital record on the basis of the Sixth Amendment Confrontation Clause.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.