text:
    A01A0199.
    OUTLAW v. NASWORTHY et al.
    (551 SE2d 785)
   Smith, Presiding Judge.

Betty Jean Outlaw brought this action against Craig Nasworthy and the City of Pineview after Nasworthy arrested her and charged her with misdemeanor obstruction of a police officer. The trial court granted summary judgment to Nasworthy based on the doctrines of official and qualified immunity. The court also granted summary judgment to the City of Pineview on several grounds. Outlaw appeals. We conclude that the trial court correctly granted summary judgment to the City of Pineview and that Nasworthy was entitled to official immunity on any state law claims. We are constrained by the facts of this case, however, to conclude that before the legal issue of whether Nasworthy is entitled to qualified immunity can be decided, factual issues exist that must be resolved by a jury. We therefore affirm in part and reverse in part and remand this case to the trial court for fiirther proceedings.

This action arose out of an incident that began when Outlaw’s friend, Rogers, drove Outlaw’s vehicle away from á party. Nasworthy, a City of Pineview police officer, stopped Rogers and arrested him for DUI. During the traffic stop, Outlaw’s son stopped at the scene and asked Nasworthy what he was “going to do with his mama’s [J]eep.” Nasworthy knew that the son did not have a license but told him that if he could find someone to drive the Jeep, it could be taken home. A short time later, Outlaw arrived at the scene. The deposition testimony of Outlaw and Nasworthy conflicts in material respects concerning the events that followed. Nasworthy claims that Outlaw attempted to retrieve her car while possibly intoxicated and that she fought with him, resulting in her arrest. Outlaw, on the other hand, contends that Nasworthy attacked and injured her when she was peacefully walking away from the scene.

Outlaw brought this action against Nasworthy and the City of Pineview. She alleged that Nasworthy violently attacked her without cause and that his acts constituted false arrest, a deprivation of her “rights of equal protection under the law” and further constituted civil rights violations under 42 USC § 1983. She also alleged that Nasworthy’s actions were imputable to the City of Pineview and sought actual and punitive damages. Following the trial court’s grant of summary judgment to Nasworthy and the city, Outlaw brought this appeal.

1. We first address Outlaw’s argument that Nasworthy was not entitled to qualified immunity with respect to her 42 USC § 1983 claim.

Government officials, including police officers, are entitled to immunity from personal liability under 42 USC § 1983 if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. [Cits.]” Harlow v. Fitzgerald, 457 U. S. 800, 818 (102 SC 2727, 73 LE2d 396) (1982). See also Gardner v. Rogers, 224 Ga. App. 165, 167 (480 SE2d 217) (1996).

The test for determining whether a defendant is protected from suit by the doctrine of qualified immunity is the objective reasonableness of the defendant’s conduct as measured by reference to clearly established law. On a motion for summary judgment, if the applicable law was clearly established at the time the defendant acted, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.

(Citations and punctuation omitted.) Id. at 167 (1).

Application of this test under the circumstances of this case, however, is not possible at this s't^ge of the proceedings. The question of whether a government official is entitled to qualified immunity is a question of law for the court to decide. See Bell v. City of Albany, 210 Ga. App. 371, 376, fn. 4 (436 SE2d 87) (1993). But here, the relevant facts as to Nasworthy’s behavior are in sharp dispute, and it is axiomatic that this court cannot make factual determinations. See, e.g., Crews v. McQueen, 192 Ga. App. 560, 561 (1) (385 SE2d 712) (1989). Threshold findings of fact concerning the circumstances of Outlaw’s arrest must be made before the immunity issue can be decided. Only a jury can do this. In this circumstance, we conclude that the trial court is authorized to submit a special verdict form to the jury to resolve the factual conflicts. “[A] trial court may submit questions of fact to the jury in the form of special verdicts if, in its discretion, it desires to seek a jury’s aid to resolve specific factual disputes. The court then will have the facts as determined by the jury’s special verdict in deciding the ultimate constitutional issue.” (Footnote omitted.) Dover v. City of Jackson, 246 Ga. App. 524, 530 (4) (541 SE2d 92) (2000). Based upon the jury’s factual findings, the trial court may then be authorized to determine whether Nasworthy is entitled to qualified immunity.

2. Outlaw also contends the trial court erred in concluding that Nasworthy was entitled to official immunity with respect to her state law claim for false arrest. We find no error. It is well settled that an officer performing a discretionary act is entitled to official immunity unless he or she “acted with actual malice or with actual intent to cause injury.” Todd v. Kelly, 244 Ga. App. 404, 406 (1) (535 SE2d 540) (2000). See also Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996). Actual malice denotes “express malice or malice in fact.” (Citation and punctuation omitted.) Id. at 392 (2). The record does not show that Nasworthy intended to injure Outlaw. Nor does the evidence presented on motion for summary judgment “give even an inference of actual malice, much less proof of it.” (Footnote omitted.) Woodward v. Gray, 241 Ga. App. 847, 851 (c) (527 SE2d 595) (2000).

3. Outlaw argues the trial court erred in granting summary judgment to the City of Pineview. She claims that the city “had the policy, custom and practice of ignoring citizen complaints” concerning city police officers and that this pattern of inaction “directly led to the constitutional violations in question and amount [ed] to a failure on the part of Pineview to protect constitutional rights of citizens.”

To hold a city liable for deprivation of rights secured under the Constitution and laws of the United States under 42 USC § 1983, a plaintiff must prove that the municipality

deprived him of a constitutional right pursuant to an impermissible or corrupt policy which is intentional and deliberate. The alleged deficiency must be closely related to the ultimate injury, because in virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city could have done to prevent the unfortunate incident. . . . [T]he plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.

(Citations and punctuation omitted.) Carter v. Glenn, 243 Ga. App. 544, 545 (1) (533 SE2d 109) (2000).

Contrary to Outlaw’s argument, the evidence in this case does not show an impermissible or corrupt policy of ignoring citizen complaints. Outlaw points to Nasworthy’s testimony that he was fired from his position as a police officer because he did not write enough tickets, despite the mayor’s “directive.” But even if true, allegations concerning the number of tickets written by officers are not “closely related” to the ultimate injury allegedly suffered by Outlaw — injury caused by the use of excessive force. See Carter, supra, 243 Ga. App. at 547-548. The evidence in this case does not show “any official [c]ity policy or custom of using excessive force against arrestees,” Bell, supra, 210 Ga. App. at 373, and the trial court did not err in granting summary judgment in favor of the City of Pineview.

Other testimony by Outlaw in her deposition amounts to conjecture concerning the city’s knowledge of a pattern of improper actions on the part of police officers. She testified that she heard a “commotion” downtown and saw a woman “coming out” from city hall, with the police chief behind her. According to Outlaw, the woman got into a car, and the chief reached in “and grabbed her by her leg and one of her arms and pulled her out of the car.” Outlaw did not hear any words spoken by either the woman or the chief, nor did she ever talk with the woman about the incident. Without a showing of further circumstances surrounding the incident, any conclusion that the police chief’s alleged use of force may have been unreasonable or excessive is purely speculative. Similarly, Outlaw testified concerning her allegations in her complaint that city police officers had engaged in a reign of terror, harassing citizens, filing false charges, and abusing them. When asked if she knew whether the mayor and city council were aware of these alleged acts, she could only speculate that because he was the mayor, “he was aware of [the unlawful acts] anyway from the get-go.” It also appears that she believed he was aware of corrupt practices because of some conflicts that occurred at city hall resulting in the use of pepper spray. But again, this amounts to nothing more than conjecture that the city engaged in an unlawful pattern of using excessive force.

Decided July 3, 2001.

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Chambless, Higdon & Carson, Mary M. Katz, for appellees.

We note that Outlaw cites to deposition testimony in three cases allegedly filed against the Pineview police chief to show that city officials knew that police officers were frequently and without justification using pepper spray on citizens. This deposition testimony does not appear in the record in this case, however. “Allegations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review. [Cit.]” Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995).

Judgment affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

Barnes and Phipps, JJ, concur.

       A similar procedure was recommended in Stone v. Peacock, 968 F2d 1163, 1166 (11th Cir. 1992). In that case, the circuit court stated that the trial court must decide if the defendants were entitled to qualified immunity but also instructed the parties on remand that “[i]f there are disputed issues of fact concerning qualified immunity that must be resolved by a full trial and which the district court determines that the jury should resolve, special interrogatories would be appropriate.” Id.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A01A0304.
    FULTON COUNTY v. AMERICAN FACTORS OF NASHVILLE, INC.
    (551 SE2d 781)
   Smith, Presiding Judge.

This litigation arose from an accounts receivable factoring agreement between American Factors of Nashville, Inc. (“American Factors”) and Total Quality Maintenance of Georgia (“TQM”). American Factors brought this action against Fulton County, TQM, and TQM’s guarantors. As part of its complaint, American Factors alleged that Fulton County erroneously paid TQM on invoices for custodial services after those invoices were sold and assigned to American Factors and notice of the assignment was provided to the county. American Factors and Fulton County filed cross-motions for partial summary judgment. In a lengthy, thoughtful, and well-written order, the trial court granted the county’s motion with respect to one count of the complaint, denied the remainder of the county’s motion, and granted summary judgment against the county and in favor of American Factors. After the remaining parties and issues in the case were disposed of, the county filed this appeal. Finding no error, we affirm.

We first note that the county does not, as required by Court of Appeals Rule 27 (c) (1), present or number the arguments in its brief in accordance with its enumerations of error, and it appears to omit several portions of its enumerations of error from its argument altogether. To the extent we are able to understand the county’s arguments despite this failure to comply with the rule, we address them below.

1. In several related enumerations of error, Fulton County asserts that the trial court erred in granting summary judgment because the county did not receive proper notice of assignment of the invoices. We do not agree.

OCGA § 11-9-318 (3) provides, in part: “The account debtor is authorized to pay the assignor until the account debtor receives notification that the amount due or to become due has been assigned and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective.”

The record shows that each invoice at issue was forwarded to the county with a form statement rubber-stamped on the face of the invoice. This statement, with the word “NOTICE” and the name, address, and telephone number of American Factors in capital letters and typeface approximately the same size as the largest typeface on the original invoice, states:

NOTICE
This account has been sold, assigned and is payable at Brentwood, Tennessee to
AMERICAN FACTORS OF NASHVILLE, INC.
P.O. BOX 954
BRENTWOOD, TN 37024-0954
Remittance to other than American Factors of Nashville, Inc. does not constitute payment of this Invoice. American Factors of Nashville, Inc. must be given notification of any claims agreements or merchandise returns which would affect the payment of all or part of this Invoice on the due date.
615-221-3939

In addition, a cover sheet prepared by American Factors was attached to each invoice, identifying the relevant invoice by invoice number, date, and amount and including a notice and certification by TQM’s president that the invoice had been assigned to American Factors.

The county contends that this notice was inadequate because it was not forwarded to the chairman of the Fulton County Board of Commissioners. To support its position, the county points to a provision in the contract between the county and TQM that the terms of the contract shall not be modified unless in writing “signed by the County’s and Contractor’s duly authorized representative.” Although the contract does not expressly define “duly authorized representative,” the county contends that the chairman of the county commission is its only duly authorized representative and therefore the only person authorized to receive notice. But this is not so. The enabling legislation for the Fulton County Board of Commissioners authorizes the chairman among other duties to “sign all official papers and other instruments and documents on behalf of the Board of Commissioners as directed or authorized by ordinance, resolution, or policy of the Board of Commissioners.” Ga. L. 1982, pp. 4151-4152, § 3 (c) (3). But others may be authorized to receive notice on the county’s behalf. See generally Burton v. DeKalb County, 202 Ga. App. 676, 678 (415 SE2d 647) (1992) (ante litem notice).

In addition, even if this provision could be construed as prohibiting the assignment of TQM’s invoices without the consent of the county, such a construction is barred by OCGA § 11-9-318 (4):

A term in any contract between an account debtor and an assignor, including any contract for the assignor to provide services to the account debtor, is ineffective if it prohibits assignment of an account or prohibits creation of a security interest in a general intangible for money due or to become due or requires the account debtor’s consent to such assignment or security interest.

(Emphasis supplied.) We therefore consider only whether the notice given the county was sufficient to amount to “notification” under OCGA § 11-9-318 (3).

The general definitions for the Uniform Commercial Code set forth in detail the manner in which notice or notification is given and received. OCGA § 11-1-201 (26) provides:

A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person “receives” a notice or notification when: (a) It comes to his attention; or (b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.

OCGA § 11-1-201 (27) provides:

Notice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence.

“Organization” includes a “government or governmental subdivision or agency.” OCGA § 11-1-201 (28). These definitions show that OCGA § 11-9-318 (3) requires only constructive notice. JCS Enterprises v. Vanliner Ins., 227 Ga. App. 371, 374 (489 SE2d 95) (1997).

Here, the undisputed record shows that adequate notification was received under OCGA § 11-9-318 (3). Steve Fullard was the building services manager for Fulton County and was in charge of overseeing custodial services for the county. He determined which services needed to be performed by a vendor rather than in-house, developed contract specifications, received the bids, and recommended selection of a vendor. After selection of TQM on this particular contract, he was responsible for supervising TQM’s performance, receiving invoices, making sure they were processed, making biweekly written or oral reports to his superior, and resolving any complaints or problems with TQM. Fullard plainly was “the individual conducting that transaction” within the meaning of OCGA § 11-1-201 (27). Fullard is named as the addressee on each invoice, and his superior testified that Fullard received the invoices and processed them for payment until the time of his termination. Adequate notification of the assignment, therefore, was received by the county in accordance with OCGA § 11-9-318 (3), and the trial court did not err in so holding.

2. The trial court declined to address the county’s claims of waiver, and we agree. The county did not present any facts to support this claim, other than its assertion that notice to the county was improperly given. We have rejected that contention in Division 1, supra. This enumeration of error is without merit.

3. Fulton County contends that it should not be obligated on the assignment because the underlying factoring agreement between TQM and American Factors provided for the sale of invoices for “merchandise,” while the contract between TQM and the county was for services. The county contends that it should be able to assert this provision of the contract between TQM and American Factors as a defense under OCGA § 11-9-318 (1) (a).

Although the county did not brief this issue below or assert it in writing, it argues that it preserved the question for appeal because counsel raised it in the trial court at oral argument. See Mitchell v. Hamilton, 228 Ga. App. 850, 852 (3) (493 SE2d 41) (1997). Counsel indeed mentioned this issue during oral argument, but only in passing, and only in the context of the county’s contention that Article 9 does not apply to this transaction, a contention that apparently has been abandoned on appeal. Treating this brief reference as sufficient to preserve the issue for appeal is a disservice to the trial court, which did not have an opportunity to rule on this question.

But even if we were to consider the county’s argument that the original purchase and security agreement between TQM and American Factors provided for the sale of accounts receivable arising from the sale of merchandise only, and assuming without deciding that the county would be authorized to assert this language as a defense after notice and payment, the county’s argument is without merit. Its contentions are foreclosed by the subsequent notice and certification executed by TQM individually with respect to each invoice and delivered to the county, certifying that TQM had transferred the attached account receivable and its interest therein to American Factors “for value received.” See Division 1, supra. This enumeration of error is without merit.

4. For the first time on appeal, Fulton County raises questions regarding the corporate identity of TQM and violation of the Gratuities Clause of the Georgia Constitution, Ga. Const, of 1983, Art. Ill, Sec. VI, Par. VI. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.” (Citation and punctuation omitted.) Padilla v. Melendez, 228 Ga. App. 460, 461 (1) (491 SE2d 905) (1997). And “[constitutional issues not raised and ruled on below are not preserved for appeal.” (Punctuation and footnote omitted.) Rahman v. Dalkon Shield Claimants Trust, 243 Ga. App. 623, 625 (1) (532 SE2d 699) (2000).

Decided July 3, 2001

Overtis H. Brantley, Willie J. Lovett, Jr., Denval A. Stewart, Brenda D. King, for appellant.

James S. Altman, Donald P. Edwards, for appellee.

5. Fulton County contends that it is against public policy to hold it liable to American Factors for amounts paid in error to TQM, because this would amount to punitive damages by requiring the county to pay twice. But the award against the county is not punitive in nature. “A debtor of the assignor, who has notice of the assignment, pays the debt to the assignor at his own peril. It is the established rule in the United States that an assignment for a valuable consideration, with notice to the debtor, imposes on him an equitable and moral obligation to pay the assignee.” (Citations and punctuation omitted.) Santiago v. Safeway Ins. Co., 196 Ga. App. 480, 482 (2) (396 SE2d 506) (1990). The double payment is not punitive but simply the legal consequence of the county’s payment to the wrong party over notice. Under appropriate circumstances, legal redress is available to one making a payment in error. See generally OCGA § 13-1-13; Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368) (1986).

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       While the county relies upon OCGA § 11-1-201 (25), defining when a person has “notice” of a fact, OCGA § 11-1-201 (26) and (27) refer specifically to “a notice or notification.” JCS Enterprises, supra.

       We note, as did the trial court, that both parties have stated that Fullard is no longer employed by the county because he improperly provided county property to TQM, misused county funds, paid TQM for services not rendered, and falsified documents. But we agree with the trial court that “[w]hile it appears to the Court that Fullard and TQM may have been in collusion, there is no evidence in the record to support such a conclusion. Accordingly, the Court will not consider this potential in making its determination.”

       American. Factors’ assertion that the county’s defense of waiver was itself waived by failure to amend its answer is incorrect. Inclusion of the argument in the county’s motion for summary judgment sufficed. Chrison v. H & H Interiors, 232 Ga. App. 45, 50 (3) (500 SE2d 41) (1998) (full concurrence in Division 3).

       While Santiago is physical precedent only, one judge having concurred in the judgment only and four concurring specially, the special concurrence does not address the principle cited here, only its application to the assignment of insurance benefits. The principle that a debtor with notice of an assignment pays the assignor at its peril is well established in Georgia law. Metro. Life Ins. Co. v. Morrow, 10 Ga. App. 433 (2) (73 SE 607) (1912).


text:
    A01A0546.
    CANNON et al. v. JEFFRIES et al.
    (551 SE2d 777)
   Smith, Presiding Judge.

This medical malpractice case arose from the death of a very premature (25 weeks gestation) infant at Crawford Long Hospital. The mother, Cynthia Cannon, brought this action in her own right and as next friend of Demetrio Robbins, the deceased infant. The complaint named as defendants Dr. M. Dwaud Jeffries, the mother’s obstetrician, Sondra Abdullah-Zaimah, the nurse-midwife, and Southside OB-GYN Associates, P.C., the doctor’s corporation. Defendants moved for summary judgment on the issues of causation and standard of care. The trial court granted summary judgment in a well-written and thoughtful order, addressing particularly the two areas of alleged malpractice supported by the expert’s affidavit. Cannon appeals. Because it is plain from the expert’s deposition that Cannon has failed to show causation with respect to one allegation of negligence or a breach of the standard of care with respect to the other, we affirm.

Dr. Salvino, Cannon’s expert, originally gave as her opinion in her affidavit pursuant to OCGA § 9-11-9.1: (1) that Dr. Jeffries was negligent in failing to test for a chlamydia infection in the mother and that this failure “may have contributed to the premature rupture of membranes”; and (2) that Dr. Jeffries was negligent in delaying an emergency cesarean section and that the delay “causally contributed to the death of the newborn child, which was caused by hypoxia.” On her deposition, however, Dr. Salvino substantially qualified her opinions based upon other facts in the case that apparently were not known to her at the time she made her affidavit.

1. We first address the trial court’s conclusion that Cannon failed to show causation on the issue of chlamydia testing. Asked if she could testify to a reasonable degree of medical certainty what factor caused Cannon’s preterm labor, Dr. Salvino responded that she could identify “the two things that I think may have. Can I tell you exactly, nobody can.” Later in her deposition, asked if she could tell to a reasonable degree of medical certainty that chlamydia caused the preterm labor, she responded, “No, sir, but I can’t tell you it’s not either.” She was unwilling to “give ... an exact number” with regard to the increased risk caused by a chlamydia infection. Although chlamydia might have caused premature labor, Dr. Salvino also testified that she “would not be very surprised given the way this thing evolved to find that this woman had an incompetent cervix.” Cannon had “a history of two elective abortions and of a cervical surgery, both of which are risk factors for weakening of the cervix.” She also testified that the “largest category of preterm labor” is idiopathic, that is, a condition for which there is no known cause.

In order to recover for medical malpractice under OCGA § 51-1-27, a plaintiff must show three essential elements:

(1) the duty inherent in the doctor-patient relationship; (2) breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided. Although it is not necessary for the plaintiff’s experts to use the magic words “reasonable degree of medical certainty” in describing the decedent’s prospect of survival with appropriate treatment, such prospect must be more than a mere chance or speculation. Instead, there must be a realistic assessment of the likelihood that the alleged negligence caused the injury or death.

(Citations, punctuation, footnote and emphasis omitted.) Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998). “When the expert testimony, alone and unsupported by other evidence, indicates that the causal connection is something less than reasonable medical probability,” this is insufficient to render the physician liable. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 709 (2) (505 SE2d 232) (1998). See also Grantham v. Amin, 221 Ga. App. 458-459 (471 SE2d 525) (1996) (“‘significant contributing cause’ ” insufficient to establish causation). While Cannon relies upon Patterson for the principle that expert testimony may state a “possibility” of causation, this is only when the expert testimony is considered in conjunction with “other medical or non-medical evidence that, in totality, shows causation, even though the medical opinion is weak, i.e., showing a reasonable possibility rather than a probability.” Patterson, supra at 710 (2).

Here, no other evidence was presented. The expert’s deposition testimony demonstrates that neither she nor anyone else, in her opinion, could establish to a reasonable degree of medical certainty what caused Cannon’s preterm labor. She was able to state only that she thought two possibilities may have contributed: the chlamydia infection and an incompetent cervix. She was unwilling to state a percentage of probability. Moreover, she acknowledged that the “largest category” of preterm labor has no identifiable cause. This testimony fails to establish causation under the applicable Georgia standard, and the trial court did not err in so holding.

2. We next address the trial court’s conclusion that Cannon failed to demonstrate a deviation from the standard of care with respect to Jeffries’s alleged delay in ordering a cesarean section. At the time of the events in question, Dr. Jeffries was not at the hospital and was reached by telephone on two occasions. Although Cannon asserts negligence in Dr. Jeffries’s response to his 7:10 p.m. telephone conversation with the hospital, Dr. Salvino did not find any negligence regarding this second telephone conversation, or indeed in any of Dr. Jeffries’s conduct after the first telephone conversation, so it is only that conversation, at 1830 hours or 6:30 p.m., that concerns us here.

As the trial court correctly noted, in her deposition Dr. Salvino stated that Dr. Jeffries was negligent in failing to order an immediate cesarean at 6:30 p.m. if he was made aware of the following facts in the telephone call: the fetal monitor showing several sharply variable decelerations, an overall loss of variability, then multiple decelerations and loss of fetal heart tones. According to Dr. Salvino, these fetal monitor readings are “worrisome.” In her opinion, by 6:30 the infant was in “distress” or “serious trouble.” But Dr. Salvino specifically testified that if Dr. Jeffries was told only that the patient’s membranes had ruptured and that she was having contractions, she had no criticism of his decision to order a drug to decrease or stop the contractions at that time.

The only direct evidence of what Dr. Jeffries was told is Dr. Jeffries’s testimony that he spoke with Nurse Wharton at 6:30 p.m. and that she told him Cannon “had ruptured membranes and that she was having some contractions.” She also told him that Cannon was one to two centimeters dilated but gave him no other information. He ordered Nurse Wharton “to give her the Terbutaline to see if we could stop the contractions.” Dr. Jeffries also specifically testified that at 6:30 Nurse Wharton told him that “the fetal heart tones were okay.”

Dr. Salvino acknowledged that the nurse’s notes do not show what report was provided to Dr. Jeffries at 6:30 p.m. She testified that she was “not sure who to be critical [of] at that point. This baby was in distress at that point. Whether Dr. Jeffries knew that or not is not clear from the record.”

Nurse Wharton was unable to recall whether she had spoken with Dr. Jeffries or another nurse assisting her had done so. While she testified that it was standard procedure to relay any information regarding the patient to the doctor in such calls, she did not recall whether that was done. She pointed out that “[t]he person may not have all the information. They would have some of the information, but they wouldn’t necessarily have all the information. . . . Some of the information may be happening while they’re on the telephone.” On further questioning, she reiterated that she did not recall speaking to Dr. Jeffries and did not recall if the fetal monitoring results were relayed to him.

“[I]t is a long-standing rule that a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. [Cits.]” Johnson v. Rogers, 214 Ga. App. 557, 559 (2) (448 SE2d 710) (1994). See also Winder v. Paul Light’s Buckhead &c. Plymouth, 249 Ga. App. 707 (549 SE2d 515) (2001). Nurse Wharton’s testimony that it was standard procedure to relay any information to the doctor, while permitting an inference that Dr. Jeffries was informed of fetal distress during the 6:30 p.m. telephone call, cannot stand against Dr. Jeffries’s positive testimony that the information was not provided. In addition, Nurse Wharton qualified her testimony by stating that all the information may not have been available to the person on the telephone.

Cannon also relies on a summary note prepared by the resident at the hospital to contend that Dr. Jeffries was told about fetal distress by Nurse Wharton. Dr. Salvino, on the other hand, stated that it was her “understanding” from the summary note that the resident on duty was the individual who spoke with Dr. Jeffries and gave him the information that fetal heart tones were “nonreassuring.” But there is no testimony to that effect, and the notes do not state who made the telephone call, the time at which it was made, or the information given in the call. Dr. Jeffries testified that he did not believe he spoke to the resident at 6:30 p.m. because he gave orders over the telephone, and he “would have given Laurie [Nurse Wharton] orders. I wouldn’t necessarily give the resident orders.” Nurse Wharton could not recall if she telephoned him or delegated that task to another nurse, but she never testified that any resident called Dr. Jeffries. The resident was never deposed and never gave an affidavit. Dr. Salvino acknowledged that the summary notes do not state the time at which the resident noted that Dr. Jeffries was “on his way.” Finally, Dr. Jeffries testified that the information in these summary notes would not have been relayed by Nurse Wharton.

The trial court, in an addendum to its order in response to Cannon’s motion for reconsideration, addressed this page of summary notes. The trial court correctly noted that the summary is “completely silent regarding what information was actually conveyed” in the call to Dr. Jeffries. These notes were dictated as a summary several hours after the events in question, and the only times noted in the entire summary were the times that Cannon’s membranes initially ruptured, her arrival at the hospital, the time at which a cesarean was decided on, and the delivery of the infant. The entry regarding “nonreassuring” fetal heart tones appears after the notation of the first call to Dr. Jeffries. Moreover, the statement regarding fetal heart tones is a past recollection recorded of a medical opinion, which is not admissible in the absence of testimony from the physician making the record. Stoneridge Properties v. Kuper, 178 Ga. App. 409, 412-413 (1) (343 SE2d 424) (1986). “[I]f a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, he admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.” (Citations and punctuation omitted.) Id. at 412 (1). See also T & M Investments v. Jackson, 206 Ga. App. 218, 221-222 (7) (425 SE2d 300) (1992). Despite Dr. Salvino’s opinion that the resident was negligent, Cannon never deposed her and never obtained an affidavit. Standing alone, the summary notes do not create an issue of fact with respect to the time at which Dr. Jeffries was notified of fetal distress. The trial court did not err in granting summary judgment on the issue of Dr. Jeffries’s alleged breach of duty.

Decided July 3, 2001.

McKinney & Salo, Jan McKinney, Sonja L. Salo, for appellants.

Browning & Tanksley, Henry D. Green, Jr., Hall, Booth, Smith & Slover, John E. Hall, Jr., Ashley D. Phillips, Mark A. Inman, for appellees.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       The nurse-midwife was dismissed from this action with prejudice before summary judgment.

       Although Cannon continues to argue in her brief that the fetal monitor had “lost heart tones” for three and one-half minutes before the conversation with Dr. Jeffries, the testimony of Dr. Salvino is clear that this occurred because the resident was performing an ultrasound and had removed the fetal monitor.


author: Barnes, Judge.

text:
    A01A0879.
    THE STATE v. BROWN.
    (551 SE2d 773)
   Barnes, Judge.

John Lamar Brown was indicted on two counts of child molestation and one count of sexual exploitation of children. He moved to quash the sexual exploitation count, and the trial court granted his motion. The State appeals, and for the reasons that follow, we reverse.

Brown was indicted in Floyd County for the offense of sexual exploitation of children in violation of OCGA § 16-12-100,

for that the said accused . . . did unlawfully . . . distribute and give to another person, visual medium depicting minors engaged in sexually explicit conduct, in that the accused did distribute and give to DETECTIVE TOM KULESA, numerous computer processed and generated images of minors, NAMES UNKNOWN TO THE GRAND JURORS, depicting a lewd exhibition of the genitals and pubic areas of said minors, contrary to the laws of this State, the good order, peace and dignity thereof.

OCGA § 16-12-100 (b) (5) provides: “It is unlawful for any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor engaged in any sexually explicit conduct.” Subsection (a) (5) of the statute defines “visual medium” as “any film, photograph, negative, slide, magazine, or other visual medium.”

The trial court determined that the “visual medium” distributed, as defined by the statute, had to be the tangible thing upon which images were stored, not just the images themselves. The court’s order granting Brown’s motion to quash this count of the indictment reads as follows:

The Indictment, instead of alleging one of the specifically named visual media (film, photograph, etc.) merely alleges distribution of a “visual medium” which the Indictment charges as being a computer generated image transmitted to an out-of-state detective. (The Indictment lists witness Detective Tom Kulesa of the Phoenix, Arizona Police Department.) The Court determines that the term “visual medium” is specifically defined to include tangible media upon which photographic images are stored or printed. The definition of “visual medium” does not include any other inclusive language except to say “other visual medium.” Read literally then, as it applies to this Indictment, the definition would be “visual medium means other visual medium,” a most unhelpful statutory definition. Specifically, the State does not charge Defendant with distribution of a computer hard drive or computer disc, or other tangible thing which might be construed as a medium for the storage of images as prohibited by the Act. The General Assembly is perfectly familiar with the way to have included electronically transmitted images within the prohibitions of § 16-12-100, but has, the Court must find, deliberately chosen not to do so. (See, for example, the prohibitions set forth in §§ 16-12-100.1 and 16-12-100.2.) The Court then finds that within the prohibitions of § 16-12-100 (b) (5), the prohibition of distribution of a “visual medium” does not include the electronic transmission of images to an out-of-state recipient. The definition supplied by the General Assembly does not cover the broad definition sought by the State.

1. A motion to quash is the equivalent of a general demurrer, attacking the validity of the indictment. Traylor v. State, 165 Ga. App. 226, 228 (2) (299 SE2d 911) (1983). A general demurrer challenges the substance of the indictment and should be granted if a defendant can admit the accusation and still be innocent of the offense charged. Pullen v. State, 199 Ga. App. 881, 882 (406 SE2d 283) (1991); Wilson v. State, 211 Ga. App. 486, 489 (4) (439 SE2d 701) (1993). The issue here, then, is whether Brown could admit that he distributed “computer processed and generated images . . . depicting a lewd exhibition of the genitals and pubic areas of. . . minors” and still be innocent of the crime of sexual exploitation of children. Put another way, do “computer processed and generated images” constitute “visual media” which the statute prohibits distributing?

The trial court held that the statutory definition of visual media does not embrace “computer processed and generated images,” but only the tangible media on which the images are stored. The trial court noted that defining “visual medium” as “other visual medium” in addition to the media specified adds nothing to the definition and concluded that OCGA § 16-12-100 (b) (5) does not prohibit the electronic transmission of images. In so holding, the trial court’s order fails to distinguish between the method of distribution — electronic transmission — and the visual medium distributed, which in this case is the digital code that produces pictures when interpreted by software. The statute does not by its terms limit the method of distribution, and we first hold that electronic transmission constitutes a method of distribution as contemplated by the statute.

We next consider, not whether the electronic transmission constitutes a visual medium, but whether the digital code of the images constitutes a visual medium.

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “ The old law, the evil, and the remedy.’ OCGA § 1-3-1 (a).” Moreover, because this is a criminal statute, it must be strictly construed against the State.

(Footnotes omitted.) Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999). “Due process mandates that criminal laws give adequate warning of what conduct will constitute a crime.” (Citation and punctuation omitted.) Conyers v. State, 260 Ga. 506 (1) (397 SE2d 423) (1990); OCGA § 16-1-2 (2). We look, therefore, to the language of the statute under which Brown was charged to determine whether he reasonably should have known that he could be prosecuted for distributing child pornography by transmitting images electronically.

While defining visual media as “other visual media” may not add much, as the trial court noted, its inclusion indicates that the legislature did not intend for the list of enumerated items — films, photographs, negatives, slides, and magazines — to be exclusive.

It is a well-recognized rule of construction that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named, unless, of course, there is something to show that a wider sense was intended.

(Citations and punctuation omitted.) State v. Mulkey, 252 Ga. 201, 203 (2) (312 SE2d 601) (1984).

We can thus narrow the question to whether digital images are of the same general kind of “visual media” as those enumerated in the statute. While all of the listed items are “tangible,” in that they can be physically handled, not all of the listed items can be viewed without the assistance of machinery. Negatives require processing; films require projectors. The images on videotapes, which are not listed as a visual medium in the statute, can be seen only with the aid of a machine.

The purpose of the statute is to prevent the dissemination of child pornography, the subject matter of which is clearly defined in OCGA § 16-12-100 (a) (4). We conclude that the most logical interpretation, and the one most in keeping with the purpose of OCGA § 16-12-100, is to prohibit situations in which a defendant transmits digital images of child pornography to another person. We believe the legislature did not intend to restrict the definition of visual media to tangible objects and that visual media include digital code that a defendant distributes electronically. We therefore conclude that the trial court erred in granting Brown’s motion to quash Count 3 of the indictment.

Decided July 3, 2001.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellant.

Harvey C. Brown, Jr., for appellee.

The fact that the General Assembly has prohibited certain conduct involving computer transmissions in OCGA §§ 16-12-100.1 and 16-12-100.2 does not compel the conclusion that it intended to exclude digital images from the definition of visual media in OCGA § 16-12-100. OCGA § 16-12-100.1 makes it a misdemeanor to electronically transmit sexually explicit pictures or conversation to minors; the material exchanged need not involve child pornography. Subsection (g) of OCGA § 16-12-100.2 specifies that a person is subject to jurisdiction in Georgia when the violation of the statute “involves a child who resides in this state or another person believed by such person to be a child residing in this state.” These two Code sections are directed primarily at prohibiting direct interactions with minor victims located in Georgia, and their passage does not indicate to us that the legislature intended to exclude digital images from the definition of visual media in OCGA § 16-12-100. “To the extent that a defendant’s conduct before the effective date of the statute violated criminal statutes already in existence, there is no indication that the legislature intended to prevent prosecution under such statutes simply because the defendant utilized a computer in the commission of the crime.” Dennard v. State, 243 Ga. App. 868, 876 (1) (e) (534 SE2d 182) (2000).

2. The State’s remaining enumeration of error is moot in light of our holding in Division 1.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

       Of the same general kind or class.

       OCGA § 16-12-100.1 is titled “Electronically furnishing obscene material to minors,” and § 16-12-100.2 is the “Computer Pornography and Child Exploitation Prevention Act of 1999.”


text:
    A01A1088.
    MOODY v. THE STATE.
    (551 SE2d 772)
   Barnes, Judge.

Following his convictions of three counts of battery, Randy Moody appeals, contending the trial court erred by conditioning his probation on no further direct contact with his wife, the victim of all three offenses. Moody contends the trial court’s condition (1) violated his state constitutional right to privacy and (2) was “invalid, unreasonable and unenforceable.”

Decided July 3, 2001

Jane C. Watson, for appellant.

J. Tom Morgan, District Attorney, Candace N. Kicklighter, Barbara B. Conroy, Assistant District Attorneys, for appellee.

In Mathews v. State, 234 Ga. App. 111-112 (506 SE2d 225) (1998), we upheld a similar probation condition that prohibited contact between the defendant and his wife. In Mathews, the defendant argued that the condition violated his constitutional right to freedom of association. We held,

In some instances a condition of probation involves a waiver of a defendant’s rights including those protected by state or federal constitutions. However, the conditions of probation are not imposed involuntarily, but are accepted by convicted criminals as a condition necessary to avoid incarceration in the penitentiary. Whether the waiver of rights required under the condition of probation amounts to an abuse of discretion depends upon whether it is related to a legitimate purpose underlying the criminal justice system or whether defendant’s loss of rights relates in a rational way to the purpose underlying the sentencing objective, to prevent his involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence.

(Citations and punctuation omitted.) Id. We find that the condition imposed by the trial court bears a reasonable relation to preventing the defendant from committing further batteries of his wife. The trial court made arrangements for Moody to visit his teenage children and also permitted him to communicate with his wife in writing and by telephone. Thus, the condition was no broader than required to establish the goal of protecting the victim from further criminal conduct.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Eldridge, Judge.

text:
    A01A1283.
    HARLEYSVILLE-ATLANTIC INSURANCE COMPANY v. QUEEN et al.
    (552 SE2d 436)
   Eldridge, Judge.

This case presents the issue of whether an insured can retroactively cancel a commercial general liability policy of insurance with one insurer upon acquiring a second policy from another insurer when a loss occurs after the retroactive cancellation date but prior to the written cancellation under OCGA § 33-24-44.1, because others’ interests are affected with the loss. The claimant, who was injured, and the operator of a crane, as an additional insured under the policy, both acquired vested interests in the policy as a chose in action on the date of the casualty loss; therefore, the insured and insurer cannot mutually cancel the policy and impair the vested rights of others. Thus, we affirm the trial court’s granting summary judgment against the insurer and for the insureds.

S&H Riggers & Erectors, Inc. (“S&H”) is in the business of erecting precast concrete products. In January 1997, S&H obtained a commercial general liability policy of insurance from HarleysvilleAtlantic Insurance Company through the Quarels Agency, S&H’s insurance agent. The policy period was January 1997 through January 1998.

Tom Hoyt with the Quarels Agency advised William Smith, president of S&H, that he could obtain the commercial general liability insurance from Great American Insurance Company cheaper than from Harleysville-Atlantic and that after coverage was obtained, S&H should cancel the policy with Harleysville-Atlantic. The Great American policy was effective on June 1, 1997, and the premium was timely paid. Thus, Smith intended to cancel the Harleysville-Atlantic policy effective on June 1, 1997, to avoid double coverage.

Prior to cancellation, on June 9, 1997, a boom fell from a crane owned by S&H and operated by Larry G. Queen, its employee. William Martin, a nonemployee, was seriously injured. Both Great American and Harleysville-Atlantic were immediately put on notice by its insured of the loss against S&H.

About a week after the notice of the potential claim, Harleysville-Atlantic gave S&H a reservation of rights letter, because it understood that its coverage was to be cancelled effective June 1, 1997. Smith did not dispute the contents of the reservation of rights letter to S&H. In fact, on July 11, 1997, Smith sent a request for cancellation effective June 1, 1997, to Harleysville-Atlantic. “The above referenced policy is lost, destroyed or being retained. No claims of any type will be made against (Harleysville) under this policy for losses which occur after the date of cancellation shown above. Any premium adjustment will be made in accordance with the terms and conditions of the policy.”

On July 30, 1997, Harleysville-Atlantic prepared the cancellation memorandum for the S&H policy. The memorandum from Harleysville-Atlantic to S&H confirmed the retroactive cancellation date of June 1, 1997, at 12:01 a.m. Harleysville-Atlantic sent a separate letter to S&H confirming that the comprehensive general liability policy had been cancelled effective June 1, 1997. HarleysvilleAtlantic returned to S&H the unearned premium of the cancelled policy. S&H kept the unearned premium and never rescinded the cancellation or tendered back the premium.

After Queen and S&H were sued, Harleysville-Atlantic was brought in by a third-party action by Queen and S&H, because Harleysville-Atlantic had $2,000,000 in coverage and Great American had $1,000,000. Harleysville-Atlantic, Queen, and S&H moved for cross-motions for summary judgment on the coverage issue. The trial court denied Harleysville-Atlantic’s motion and granted the motions of Queen and Great American, holding that each insurer pay one-half of any judgment until coverage was exhausted.

Harleysville-Atlantic contends that the trial court erred in interpreting OCGA § 33-24-44.1 as not allowing a retroactive cancellation of the policy, in failing to find that the policy was cancelled by agreement of two relevant parties, and in failing to recognize that S&H had waived its ability to deny or retract its cancellation by accepting and retaining the refunded insurance premium. We are treating all the enumerations together, because all contentions are governed by OCGA § 33-24-44.1 (a) (1) and applicable case law.

In applicable part, OCGA § 33-24-44.1 reads:

(a) An insured may request cancellation of an existing insurance policy by returning the original policy to the insurer or by making a written request for cancellation of an insurance policy to the insurer or its duly authorized agent stating a future date on which the policy is to be canceled. Such cancellation shall be accomplished in the following manner: (1) If only the interest of the insured is affected, the policy shall be canceled on the later of the date the returned policy or written request is received by the insurer or its duly authorized agent or the date specified in the written request; provided, however, that upon receipt of a written request for cancellation from an insured, an insurer may waive the future date requirement by confirming the date and time of cancellation in writing to the insured.

OCGA § 33-24-44.1 (a) (1); Ga. L. 1987, p. 1466, § 2; Ga. L. 1994, p. 344, § 1. The statutory description of the 1994 amendment states that its purpose is “so as to provide that an insurer, upon receiving a written request from an insured for cancellation of a policy, the insurer may waive the future date requirement by confirming the date and time of cancellation in writing to the insured.” Ga. L. 1994, p. 344.

Thus, the insured can use a retroactive date of cancellation if the insurer waives the future date requirement of the statute by confirming the retroactive cancellation date and time in writing to the insured, which was done in this case. But, there can be no mutual cancellation where a prior loss exists, as in this case. In such instance, the insured and insurer are powerless under the statute and case law to agree to cancel the policy after rights in others have vested, because the statute clearly, plainly, and unambiguously states that the insured can cancel “[i]f only the interest of the insured is affected.”

In case of cancellation, the manifest intention of the parties is to discharge the insurer from all future liability, and not to relieve him from any liability incurred under the contract. Thus, a policy of insurance may be cancelled at any time before loss, by an agreement between the parties, and such cancellation may be by the consent of the parties, express or implied from the circumstances, independently of the terms of the policy.

(Citations, punctuation and emphasis omitted.) Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga. App. 628, 629 (1) (337 SE2d 410) (1985); see also Davidson v. State Farm &c. Ins. Co., 161 Ga. App. 21, 24-25 (288 SE2d 832) (1982).

The substitution rule has gained no previous acceptance from Georgia courts and we can discern no reason for adopting the rule now. We thus conclude that the procurement of new insurance as an intended substitution for an existing policy does not constitute an effective cancellation of the policy unless the terms of the policy specifically provide for cancellation in this manner or the parties have otherwise mutually agreed upon this method of cancellation.

Ector v. American Liberty Ins. Co., 138 Ga. App. 519, 521 (1) (226 SE2d 788) (1976); accord Davidson v. State Farm &c. Ins. Co., supra.

In this case, Queen, as an additional named insured, acquired a vested interest in the additional $2,000,000 to indemnify him from liability and the additional rights of . defense. See generally Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313, 317 (232 SE2d 910) (1977); City of Atlanta v. St. Paul Fire &c. Ins. Co., 231 Ga. App. 206, 207-209 (498 SE2d 782) (1998). “Rights against insurer arise immediately upon the happening of the accident and cannot be destroyed by attempted subsequent cancellation, release or compromise by insured and insurer.” (Citation and punctuation omitted.) State Farm &c. Ins. Co. v. Kendall, 104 Ga. App. 481, 485 (2) (122 SE2d 139) (1961); see also Davidson v. State Farm &c. Ins. Co., supra at 24-25. To Martin, as a third-party beneficiary under the policy, if he obtains a judgment against Queen and S&H, the $2,000,000 is a chose in action to satisfy any judgment in excess of $1,000,000 against Harleysville-Atlantic. See OCGA §§ 44-12-20; 44-12-21; Hammond v. City of Warner Robins, 224 Ga. App. 684 (482 SE2d 422) (1997); Davis v. Nat. Indem. Co., 135 Ga. App. 793, 795 (2) (219 SE2d 32) (1975); Insured Lloyds v. Bobo, 116 Ga. App. 89, 91 (156 SE2d 518) (1967). Therefore, both Queen and Martin, as of June 9, 1997, acquired vested interests in the Harleysville-Atlantic policy so that S&H by statute had no right to cancel the policy. OCGA § 33-24-44.1 (a), (e). Likewise, Harleysville-Atlantic had actual notice of the loss and interests of both Queen and Martin when it sent its reservation of rights letter and the confirmation of cancellation. See State Farm &c. Ins. Co. v. Kendall, supra at 485 (2). By statute, HarleysvilleAtlantic could not cancel the policy at S&H’s request, because the policy cancellation by the insured “shall be canceled in accordance with this Code section” only, and there were other interests affected by the cancellation which liad not consented to cancellation. OCGA § 33-24-44.1 (a) (1), (e); Progressive Preferred Ins. Co. v. Davis, 199 Ga. App. 598, 599 (405 SE2d 529) (1991); see generally Pennsylvania &c. Ins. Co. v. Employers’ Fire Ins. Co., 118 Ga. App. 655, 658 (1) (165 SE2d 309) (1968) (statutory notice of cancellation not given to mortgagee of a policy with a standard mortgage clause; thus, cancellation was not effective as to the mortgagee); State Farm &c. Ins. Co. v. Kendall, supra at 485 (2) (insured, after motor vehicle collision, cannot agree with insurer to cancel liability policy).

Decided July 3, 2001

Webb, Zschunke, Miller & Dikeman, William E. Zschunke, Melissa C. Duffey, for appellant.

Mabry & McClelland, Joan G. Grumpier, Robert M. Darroch, Sherrod & Bernard, John W! Sherrod, for appellees.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur. Andrews, P. J., disqualified.


text:
    A01A1350.
    In the Interest of K. S., a child.
    (552 SE2d 441)
   Eldridge, Judge.

Upon the consent of the appellant biological father and the biological mother, the child, K. S., was first adjudicated deprived in June 1998 following a detention hearing conducted in the Juvenile Court of Cobb County. K. S. was then age three. Her parents had been divorced on February 3, 1997, approximately a year and a half earlier. Upon the parents’ consent, the juvenile court placed K. S. and her older sister by another father in the temporary custody of their maternal grandfather, finding as fact that the children had been placed in the protective custody of the Cobb County Police Department and that the parents’ history with the county Department of Family & Children Services (DFCS) included:

the mother’s substance abuse, lack of supervision of the children, the children not being kept clean, the children having untreated head lice and fleas, the home being kept in an unhealthy condition, and numerous police involvement [sic] between the parents including but not limited to the mother’s recent allegation of being raped by the [father].

After a custody hearing in June 1998, the juvenile court ordered the temporary custody of the children given the grandfather extended for a period of not more than two years and again adjudicated the children deprived. The court’s order also directed that the parents undergo drug and alcohol evaluation and treatment, as appropriate, and participate in parenting classes and that the appellant complete a DFCS-approved domestic violence program. In July 2000, ruling upon DFCS’s petition for termination of the parents’ rights to the children which was filed in late 1999, the juvenile court terminated the parental rights of the father of K. S.’s older sister and, over the objection of the children’s court-appointed guardian ad litem, the appellant’s parental rights to K. S. Upon the agreement of the parties, the juvenile court denied the termination petition as to K. S.’s mother and placed the physical and permanent custody of the children in the maternal grandfather until the eighteenth birthday of each child.

On appeal, appellant contends that insufficient evidence was presented to support the juvenile court’s finding that termination of his parental rights was proper upon clear and convincing evidence of parental misconduct and as in the best interest of the child. He argues that the juvenile court erred in adjudicating the child deprived as to him for want of evidence showing that he caused such deprivation. Alternatively, he argues that the juvenile court erred in terminating his parental rights by its failure to find that the child’s deprivation is likely to continue or will not be remedied in the future, no current misconduct or neglect on his part having been shown.

Parental rights are terminated under OCGA § 15-11-94 by a two-step procedure.

First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child. The standard for appellate review of a termination of parental rights is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.

(Citations and punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994).

Parental misconduct or inability is determined upon the findings that the child is deprived; that the deprivation is the result of a lack of proper parental care or control; that the child’s condition as deprived is likely to continue or will not be remedied; and that a continuing deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). The physical, mental, or emotional neglect of a child, past or present, is among the factors relevant to a child as lacking proper parental control. OCGA § 15-11-94 (b) (4) (B) (v).

The appellant’s argument to the contrary notwithstanding, the status of the child as deprived has been established by his failure to appeal such determinations. See In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993) (unappealed deprivation determination binding on appeal). The evidence presented showed that the appellant was incarcerated on a near continuous basis for writing bad checks in the three years that preceded the June 1998 termination hearing. While at the termination hearing below the appellant conceded that he has not been a good parent, he does not directly acknowledge on record that his time in confinement adversely affected the child. It is well settled that incarceration alone need not always require the termination of parental rights; however, incarceration will support such a ruling in the presence of sufficient aggravating circumstances. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). “[R]epetitive incarcerations for the commission of criminal offenses . . . constitute [ ] an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Citations, punctuation and emphasis omitted.) In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998). We conclude that appellant’s almost continuous incarceration and the fact that he remained incarcerated through the termination hearing constitute an aggravating circumstance in this case.

Further, the testimony of a licensed psychologist established that both the children had been “incredibly traumatized” by the appellant’s violence toward the mother in their presence when very young. Asked if she could recommend that the appellant be permitted any contact with K. S. in the future, the psychologist opined, “[A]ny contact with him or even the mention of his name is not going to be good for [K. S.]” The psychologist had earlier testified that “with [K. S.], just the mention of the mother’s name brings back such traumatic memories about [the appellant] that she can’t stop shaking at school.”

The psychologist otherwise testified that K. S. remained angry with the appellant for memories of the appellant “leaving [the children] locked up for hours uncared for” during times of the mother’s absence before the parents’ divorce. The appellant conceded only that there had been occasions when he had locked the children behind a baby gate. “Parental unfitness supporting a termination of parental rights can be caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.” (Citations and punctuation omitted.) In the Interest of M. C. A. B., 207 Ga. App. 325, 326 (427 SE2d 824) (1993).

Since K. S. was not in the custody of the appellant at the time his parental rights were terminated, the juvenile court was also required to determine whether the appellant failed to comply with OCGA § 15-11-94 (b) (4) (C) (i)-(iii) — this upon a consideration of whether, without substantial justification before the termination petition was filed for one year or longer, the appellant failed significantly: “(i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive [, parental] manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the [appellant].” Id.

The record reflects that the appellant provided no support for K. S. after the children were placed in the temporary custody of the maternal grandfather — this notwithstanding the fact that he had provided some child support to the mother for another daughter bom to the couple out of wedlock, in August 1999. Moreover, there also was evidence that the appellant, permitted to serve an August 1999 sentence to confinement in a diversion center upon being held in contempt of court for the nonpayment of child support, requested that he be returned to the Douglas County jail — this after being cited for a violation of the diversion center’s rules which would have extended the time he would have served there. Such request was granted, foreclosing work opportunities which would have enabled the appellant to provide child support as he had been ordered to do. Although the appellant testified to the contrary, there also was evidence, and the juvenile court found, that the appellant failed to report for drug and alcohol evaluation and treatment in accordance with the juvenile court’s reunification plan ordered as a result of the court’s June 8, 1998 custody hearing. The appellant visited K. S. seven to eight times after the June 1998 custody hearing; however, these visits neither fostered an improved relationship with K. S. nor demonstrated a capacity for parenting in the appellant who on one visit to the children left K. S. vomiting from, in the maternal grandfather’s words, “jerking her around, spinning her and everything.” When reminded to avoid the foregoing on a subsequent visit to the children, the maternal grandfather ordered the appellant to leave when he became loud and abusive. The appellant did not seek leave of the juvenile court to visit with the children in the year preceding the termination hearing.

Although the appellant testified at the termination hearing that he could comply with anything the court might order him to do to resume “some type of communication with K. S.[,]” this claim amounts to no more than conjecture. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D. I. W., supra at 646 (1).

Upon considering the best interest of the child, the juvenile court was further authorized to consider K. S.’s need for stability and the harmful effects of prolonged foster care. In the Interest of D. I. W., supra. After reviewing the evidence in the light most favorable to the appellant, we conclude that any rational trier of fact could have found by clear and convincing evidence that the appellant’s parental rights were properly forfeited in the circumstances of this case. In the Interest of L. F., supra.

Decided July 3, 2001.

Alembik, Fine & Callner, Brenda Godfrey, Bobby G. Adkins, Jr., for appellant.

Douglas D. Middleton, Pamela K. Hecht, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       The juvenile court denied the petition to terminate the mother’s parental rights to K. S. finding: (a) that the parties agreed that there be no reunification plan; and (b) that the termination of the mother’s parental rights was not in the best interests of the children because there existed the possibility of a future relationship between the mother and the children outside of family reunification.

       This Code section was formerly OCGA § 15-11-81.

       The father conceded as much on cross-examination. Asked if he had traumatized the children, the appellant responded, “If by saying arguing and screaming and fussing between me and [their mother] in front of them, yes. That’s something I should have never done.”

       The psychologist explained that she was recommending that there be no contact with the father, inclusive of letters, photographs, and telephone calls.

       The maternal grandfather described the appellant as telling him he would “never get one dime of child support” and as having “kept his promise.”

       The appellant asked the juvenile court not to terminate his parental rights to K. S. but did not seek custody of her.


text:
    A01A1732.
    HARDWICK v. THE STATE.
    (551 SE2d 789)
   Eldridge, Judge.

A Clayton County jury convicted Jarvis Lee Hardwick of armed robbery (Count 1), false imprisonment (Count 2), and possession of a firearm during the commission of a felony (Count 3) arising out of circumstances in which the defendant and his co-defendant accomplice held Timothy Crawford at gunpoint in his home, robbed him of approximately $1,500, and left him handcuffed to the door of his refrigerator. The defendant was sentenced as a recidivist to life imprisonment as to Count 1, ten years to serve as to Count 2 concurrent with Count 1, and five years to serve upon Count 3 consecutive to his sentences as to Counts 1 and 2. He appeals from the denial of his motion for new trial, as amended. Finding his claims of error to be without merit, we affirm.

1. Defendant contends that the superior court erred by denying his motion for new trial, arguing that he was entitled to rely on the accuracy of the juror data sheet he was provided as reflecting that a juror had not previously served on a criminal jury in lieu of questioning the juror on the issue on voir dire. This court has consistently held that OCGA § 15-12-133 gives criminal defendants an absolute right to question potential jurors for the purpose of ascertaining their impartiality and capacity to treat the cause of action on the merits objectively and without bias and free from prejudgment of any sort. Whitlock v. State, 230 Ga. 700, 706 (5) (198 SE2d 865) (1973); Allen v. State, 239 Ga. App. 899 (522 SE2d 502) (1999); Sanders v. State, 204 Ga. App. 37, 38 (1) (419 SE2d 24) (1992). OCGA § 15-12-132 makes the administration of an oath to jurors mandatory to ensure their truthfulness in answering questions put to them during the voir dire of all cases. Ates v. State, 155 Ga. App. 97, 98 (2) (270 SE2d 455) (1980). Moreover, it is settled that a new trial will not be granted as to claimed error on voir dire unless the movant can show that a juror failed to answer (or to answer honestly) a material question on voir dire and then can further demonstrate that a correct response would have established a valid basis for a challenge for cause. Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94 (428 SE2d 786) (1993). While the defendant nonetheless argues that he should have a new trial for his reliance on information provided by the superior court clerk’s juror data sheet in lieu of voir dire thereon, it is clear that there is no reasonable basis for such relief. To adopt the rule the defendant urges would be to sanction the substitution of no more than an unsworn business record for sworn voir dire as a means of identifying potential juror prejudice. This we decline to do.

2. The defendant also contends that a new trial is warranted in that the superior court commented on what had been proved in violation of OCGA § 17-8-57 by sua sponte instructing the jury that a witness’ answer rather than the question constitutes the evidence at trial limiting his impeachment of the victim on cross-examination. We disagree.

Pertinently, the record shows that on cross-examination the victim denied having accused the defendant of hitting him on the neck with a pistol. When defense counsel sought to impeach the victim by asking him to read his statement to police to the contrary, the victim testified he was unable to do so for inability to read or write and that his “sister” had written the statement as a result. Asked a leading question in which defense counsel referred to the victim’s sister as the author of the statement, the victim changed his testimony, indicating that his former wife had authored the statement. On this, the superior court sua sponte instructed the jury that a witness’ “answers are evidence, not the questions.” The superior court then gave defendant’s counsel an opportunity to restate her question. Without objection, defendant’s counsel did so, establishing that the statement had been written by a person other than the victim identified only as Doris Crawford. There was no motion for mistrial. On these facts, we conclude that the superior court neither expressed an opinion nor commented on what had been proved. Caldwell v. State, 247 Ga. App. 191, 197 (1) (b) (542 SE2d 564) (2000) (“Telling a jury that they are bound by the evidence presented at trial, as opposed to factually baseless questions, neither expresses an opinion as [to] whether the evidence actually proved the fact contained therein nor expresses an opinion as to the credibility of the witness from [which] the evidence is derived.”). Inasmuch as we thus find no violation of OCGA § 17-8-57, we need not weigh the facts against the plain error rule. See Paul v. State, 272 Ga. 845, 848-849 (2), (3) (537 SE2d 58) (2000) (violation of OCGA § 17-8-57 for intimation of an opinion on the evidence waived in the absence of objection or motion for mistrial unless plain error present); see also Caldwell v. State, supra at 194 (1).

Finally, the defendant claims that the superior court erred in denying him a new trial for its refusal to allow cross-examination of the victim attributing the victim’s delay in reporting the robbery to police to time the victim needed to destroy drugs in his home and its failure to require the victim to give direct responses to defendant’s questions on cross-examination. That defendant did not raise these issues in his enumeration of error, they are not properly before us and cannot be further considered. An enumeration of error cannot be enlarged by a brief on appeal for the purpose of “giv[ing] appellate viability to an issue not contained in the original enumeration. One cannot expand the scope of review of supply additional issues through a process of switching, shifting, and mending your hold.” (Citations omitted.) In re Estate of Jackson, 241 Ga. App. 392, 395 (3) (526 SE2d 884) (1999).

3. Defendant last contends that the denial of his motion for new trial was error in that, on cross-examination, the state’s attorney placed his character in issue by asking him, “All right. You shot someone in Augusta though, haven’t you?”

The record reflects that the complained-of question came as the state’s attorney began his cross-examination of the defendant. The defendant’s only response was “Sir?” Defendant’s counsel objected as the state’s attorney started to ask the question a second time, and the superior court sustained defense counsel’s objection interposed immediately thereafter. No curative instruction was sought. None was given. Neither was there a motion for mistrial on this account. Nothing of record indicates that the defendant requested a charge on the issue. None was given. We conclude, however, that it is highly probable that error, if any, did not contribute to the judgment of conviction. In this regard, the superior court sústained the objection to the question, and there was no answer. “Where an objected-to question is not answered by the witness, there is no harmful error. Jackson v. State, 233 Ga. 529, 531 (4) (212 SE2d 366) (1975).” Stevens v. State, 195 Ga. App. 324, 326 (393 SE2d 482) (1990). In any event, the import of the question was already in evidence as res gestae, foreclosing prejudice to the defendant on this basis. See Touchton v. State, 210 Ga. App. 700, 702 (3) (437 SE2d 370) (1993). Thus, any error was harmless. “There is no remedy for error without harm. Robinson v. State, 229 Ga. 14, 15 (1) (189 SE2d 53) (1972).” Stevens v. State, supra.

Decided July 3, 2001.

Margot S. Roberts, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       The juror data sheet is a document prepared by the superior court clerk and supplied to counsel and the trial judge purporting to provide biographical data, inclusive of prior jury service, on prospective jurors.

       Neither examination as to what verdict had been reached in an unrelated case in which a prospective juror previously served as a juror nor examination as to the nature of such juror’s participation in reaching a verdict therein is proper on voir dire as immaterial. McGinnis v. State, 135 Ga. App. 843, 844-845 (2) (219 SE2d 485) (1975); Jackson v. State, 172 Ga. App. 359, 363 (7) (323 SE2d 198) (1984).

       See Thomas v. State, 208 Ga. App. 367, 370 (430 SE2d 768) (1993) (Pope, C. J., concurring specially) (juror data sheet as unsworn, incomplete, and insufficient to determine Bat-son issue arising on voir dire).

       Defendant’s counsel asked the victim, “Did you — when you had your sister write your statement, did she read the statement to you before you signed it?”

       The superior court instructed counsel, “All right. You may correct that.”

       On direct examination, the state’s attorney asked the victim what the defendant said to him while holding him at gunpoint at the time of the robbery. The victim replied, testifying,
      It was a lot of conversation going on and when the [co-defendant] handcuffed me to the kitchen, I told — [the co-defendant] said something about don’t say nothing to my mama and daddy about it and [the defendant] said something about we’ll be back if he do and something about it wouldn’t matter to me because I’m already done killed [once], and I’ll kill you too.
      (Emphasis supplied.)


author: Pope, Presiding Judge.

text:
    A01A0110.
    BAIRD v. KELLEY et al.
    (551 SE2d 810)
   Pope, Presiding Judge.

Landlords Jim Kelley, Harry Anderson, and Ira Levy brought a dispossessory action against Ken Baird d/b/a Cotton Block Exchange after Baird stopped paying rent. Baird countersued for breach of contract, unjust enrichment, and fraud. The dispossessory action became moot after Baird paid the amount of unpaid rent into court and agreed that it should be released to the landlords. The trial court subsequently granted the landlords’ motion for summary judgment as to Baird’s counterclaim, and Baird appeals.

The lease signed by the parties specified that the property would be used for an antique retail warehouse and flea market. But a City of Rome building inspector visited the property before Baird opened for business and determined that the buildings did not comply with the applicable codes. The building had previously been used as a warehouse, and because Baird planned to use it as a retail business open to the public, the city required a number of changes to the property. Emergency exits and lighting were needed; additional off-street parking was required; and a handicap restroom and a sprinkler system would have to be installed. In February 1997, Baird wrote the landlords notifying them of the city’s requirements and asking that his rent be abated until they could be met. The letter identified the sprinkler system as an item that Baird contended was the landlords’ responsibility. Although Baird was able to hold outside flea markets on the property, he never utilized the interior of the building and eventually stopped paying rent.

1. Baird first contends that the trial court erred in granting summary judgment because the landlords breached the lease by failing to adequately perform an initial cleanup and repairs. Under the “Special Stipulations” portion of the lease, the landlords agreed to make: “the initial cleanup of the landscaping, replacement of broken window panes with on site panes and will have all necessary repairs completed to activate power and water to office and apartment. Landlord shall have the responsibility of the initial cleaning and painting of the apartment.” Baird contends that they failed to clean up all the debris from the exterior of the property, failed to repair all broken windowpanes, and failed to properly repair all portions of the roof.

In reply, the landlords presented an affidavit with the general statement that they had performed the initial cleanup and repairs. They contend that the lease required Baird to provide them with written notice of any inadequacies in the cleanup, and without such notice, they argue that he cannot assert a claim of breach of contract. We disagree.

In signing the lease, the landlords acknowledged that they had the duty to perform an initial cleanup and certain repairs. Baird simply asserts that they failed to adequately perform that duty. The written notice requirement does not apply. Under that provision, Baird agreed to provide written notice to the landlords of “any defective condition known to him that [the landlords] were required to repair.” The same provision gave the tenant “exclusive control of the premises” and relieved the landlords of the duty to periodically inspect the premises for needed repairs. Under a reasonable reading of the language, we find that this provision requires written notice only of defective conditions of which the landlords may not have been aware by virtue of their turning control of the property over to the tenant.

In this instance, however, the landlords were clearly aware that an initial cleanup and repair were required, and they specifically contracted to perform that duty. No notice from the tenant was required to impose a duty that the landlords had already undertaken. Because there is a conflict in the evidence as to whether they adequately performed that duty, a jury issue exists as to whether the landlords breached the lease.

2. Baird also argues that the landlords had the duty to provide premises that were suitable to the purpose of the lease and to make the improvements necessary to bring the building up to code. Specifically, Baird contends that the landlords had the duty to provide sufficient off-street parking and a sprinkler system, but concedes that he had the duty to install the handicap bathrooms, the fire doors, and the electrical system.

In a commercial lease such as this, the parties were free to contract as to their various responsibilities for repair, maintenance, and improvements. See Sewell v. Royal, 147 Ga. App. 88, 90-91 (1) (248 SE2d 165) (1978); Colonial Self Storage &c. v. Concord Properties, 147 Ga. App. 493, 495 (1) (249 SE2d 310) (1978); Browning v. F. E. Fortenberry & Sons, 131 Ga. App. 498, 500 (4) (206 SE2d 101) (1974). Accordingly, we must look to the lease contract in its entirety “in view of the facts and circumstances concerning the situation” to determine the parties’ intent with regard to the repairs and improvements at issue. Shippen v. Ga. Better Foods, 79 Ga. App. 813, 819 (c) (54 SE2d 704) (1949). See also Peachtree on Peachtree Investors v. Reed Drug Co., 251 Ga. 692, 695 (1) (308 SE2d 825) (1983) (construction of a contract governed by the intent of the parties as expressed in the entire contract); OCGA § 13-2-2 (4).

In signing the lease, Baird accepted the premises “for the purposes of this lease” as being in good condition and repair. And aside from the special stipulations for the initial cleanup and repairs, the landlords were not responsible for “any repairs or improvements of any sort whatever on said premises during the term of this contract,” except maintenance of “the roof of the building, foundations, sills, floor joists and structural walls.”

For his part, Baird agreed that he would take good care of the premises and would make all necessary repairs to keep the building in good condition. He also agreed to pay for “[a]ny improvements, repairs, betterments or additions placed on the premises” by him with no charge to the landlords and agreed to comply with “all rules, orders, ordinances and regulations of the City, County and State in which the property is located.”

The language of this lease, read as a whole, manifestly expresses the intent of the parties that the landlords’ obligations would be limited to the specified areas of maintenance. And because Baird accepted the property as being in good condition for the purposes of the lease and agreed that he would be responsible for complying with the applicable city ordinances with no charge to the landlords for any improvements, he bore the responsibility of bringing the property in compliance with the requirements of the City of Rome. See Sewell, 147 Ga. App. at 90-91 (1); Browning, 131 Ga. App. at 500 (4). But see Shippen, 79 Ga. App. at 821-822 (agreement to abide by applicable ordinances does not make tenant liable for ordinances enacted after the lease signed).

The property had previously been used as storage space. There was no representation in the lease that the premises were suitable or fit for use as a retail antique mall and flea market. Compare McDuffie v. Argroves, 230 Ga. App. 723, 725 (2) (497 SE2d 5) (1998). Baird was aware of the condition of the property when he entered into the lease, yet he did not contract for any obligation on the part of the landlords to make the space suitable for use by the public as a retail space. To the contrary, he undertook those responsibilities himself. Therefore, the trial court correctly granted the landlords’ motion for summary judgment on this ground.

3. Baird contends that the landlords had additional obligations because the leased property included a residential apartment. Because the lease covered what he terms a “mixed” residential and commercial property, Baird attempts to bootstrap a suitability requirement onto the property as a whole and asserts that the landlords could not contract away their obligation to provide premises suitable for Baird’s needs.

But the intended purpose of the lease was for a commercial enterprise, and the lease provided that the property would not be used for any other designated purpose without the written consent of the landlords. Therefore, no residential use of the property was either contemplated or authorized by the lease. Nevertheless, Baird did rent out the apartment for a time. Accordingly, while Baird may have undertaken the obligations of a residential landlord, nothing in the lease indicates that the landlords undertook such obligations. Moreover, Baird has presented no evidence that the apartment itself was in any way unsuitable for residential purposes. In fact, it apparently was used for that purpose. Therefore, no breach of the lease occurred with regard to that portion of the property. Accordingly, we find no error in the court’s ruling on this ground.

Decided July 5, 2001.

R. Edward Furr, Jr., for appellant.

Hiñe & Niedrach, John E. Niedrach, Christopher P. Twyman, for appellees.

Judgment affirmed in part and reversed in part.

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

       We note that the parties did not argue and the trial court did not address whether issues of fact remain as to the damage element of Baird’s breach of contract claim. See Budget Rent-A-Car &c. v. Webb, 220 Ga. App. 278, 279 (1) (469 SE2d 712) (1996) (“ ‘[t]he elements of a right to recover for a breach of contract are the breach and the resultant damages to the party who has the right to complain about the contract being broken’ ”). Accordingly, we do not address that element.