text:
    A02A1899.
    SANDERS v. BROWN.
    (571 SE2d 532)
   Eldridge, Judge.

James D. Sanders, plaintiff and defendant-in-counterclaim, appeals from the judgment entered against him on the jury verdict finding for the defendant, Laura Sanders Brown, his sister, on his complaint, on her counterclaim for slander of title in the amount of $8,068.88, and on her claim for attorney fees and expenses of litigation in the amount of $37,794.20, and from the denial of his motion for new trial. Finding no merit to the appeal, we affirm.

In 1938, Sanders contended that Mrs. Effie Furr gave a bond for title for 50 acres to him; however, no bond for title was recorded or introduced in evidence. On October 31, 1942, Mrs. Furr conveyed by deed the 50 acres to Brown, reciting that the bond for title to Brown and Sanders was transferred and assigned to Brown; the Furr deed was never marked recorded. However, this deed appears as recorded on October 31, 1942, in Deed Book 149, page 402, Cobb County Records. On October 9, 1943, Brown deeded to Sanders ten acres of the Furr property in a sale, showing $1.10 in revenue stamps and reciting a purchase price of $1,000. In April 1962, Brown conveyed by sale an additional piece of the Furr property to Sanders. In March 2000, Brown contracted to sell 12.5 acres of the Furr property contingent upon rezoning the land commercial; on November 21, 2000, the rezoning was granted. Subsequently, Brown and her purchaser entered into a contract for four acres of the original 12.5 acres; neither contract closed, because of Sanders’ claims.

In 1943 and again in 1962, Brown conveyed two separate parcels to Sanders; however, a 1962 survey plat, drawn by Aubrey Harris and filed at the same time as the last deed, showed a triangle of land of 0.851 acres in Land Lots 765 and 790 as Sanders’ land. On July 6, 1994, Brown erected a fence on this small disputed land, and Sanders sought an injunction against her. Brown answered and counterclaimed against Sanders for abusive litigation to such disputed property, after various amendments. On February 9, 1998, after many amendments, Sanders claimed that all the 50 acres of the Furr land was his and that Brown had obtained the deed fraudulently so that he equitably owned the 38.62 acres titled in Brown’s name. By amendment, Sanders claimed the land in dispute by adverse possession. On May 7, 2001, by leave of court, Brown amended her counterclaim to assert a claim for slander of title, for Sanders’ claim to the 38.62 acres not titled in his name. No lis pendens was tendered into evidence.

From October 15 through 18, 2001, the jury heard the case and returned a verdict on the latter date. On October 22, 2001, judgment was entered. On January 16, 2002, the trial court heard Sanders’ motion for new trial on general grounds, which was never amended to set forth any special grounds. On January 17, 2002, the trial court denied Sanders’ motion for new trial on the general grounds.

Sanders contends that the trial court erred in denying his motion for a new trial. We do not agree.

Where the jury returns a verdict which the trial court enters as a judgment, the judgment must be affirmed on appeal if there is any evidence to support the verdict, because the jurors are the exclusive judges of the weight and credibility of the evidence; on motion for new trial, the appellate courts must construe the evidence with every inference and presumption in favor of the verdict and judgment and affirm if there is any evidence to support the verdict. Butts v. Williams, 247 Ga. App. 253-254 (543 SE2d 779) (2000).

Slander or libel of title to land is defined by OCGA § 51-9-11 as: “[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” The essential elements of this tort are: (1) publication of slanderous or libelous words; (2) that they were malicious; (3) that the plaintiff sustained special damages thereby; and (4) that the plaintiff possessed an estate in the property slandered or libeled. Schoen v. Maryland Cas. Co., 147 Ga. 151, 153 (93 SE 82) (1917); Daniels v. Johnson, 191 Ga. App. 70, 73 (2) (381 SE2d 87) (1989). An oral claim pf ownership does not create a cloud on the title which can be removed by court decree; therefore, the remedy for such false claim which affects the title is an action for damages for slander or libel of title to such land. Weyman v. City of Atlanta, 122 Ga. 539, 542 (50 SE 492) (1905). Such cause of action accrues when the false, slanderous, and malicious words impugning the title of the person’s land are first published, causing special damages. King v. Miller, 35 Ga. App. 427 (133 SE 302) (1926). The owner can recover in such action only such special damages as he actually sustained as a consequence of the wrongful acts, which damages must be pled and proven with particularity. Copeland v. Carpenter, 203 Ga. 18, 19-20 (3) (45 SE2d 197) (1947). Costs of litigation and attorney fees arising from such action do not constitute the special damages necessary to support this action. Hicks v. McLain’s Bldg. Materials, 209 Ga. App. 191, 192 (1) (433 SE2d 114) (1993). However, where specific figures are proven that show special damages caused by a contractor’s lien with reasonable certainty, which prevented further bank construction draws, delaying completion of the house and sale of the house — for example, interest attributable to the delay or increased rate of interest, increased construction cost from inflation, cost of a bond for the lien, or difference between the fair market value if completed on time and the actual fair market value on completion, or costs directly attributable to the delay — such constitute recoverable special damages. See generally Harmon v. Cunard, 190 Ga. App. 19, 20 (378 SE2d 351) (1989).

(a) Sanders contends that his filing a notice of lis pendens and the lawsuit came under privileged communications. OCGA § 51-5-8; Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102, 103 (1) (441 SE2d 288) (1994). Under OCGA § 51-5-8, an absolute privilege is created:

[a] 11 charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and aver-ments may be, they shall not be deemed libelous.

See Alcovy Properties v. MTW Investment Co., supra at 103. “An owner of realty may bring an action for libel or slander which falsely and maliciously impugn [s] his title, if any damage accrues to him. OCGA § 51-9-11. However, this tort is subject to the privilege of OCGA § 51-5-8 accorded all regular pleadings filed in a court of competent jurisdiction.” (Citations and punctuation omitted.) Panfel v. Boyd, 187 Ga. App. 639, 647 (4) (371 SE2d 222) (1988). Thus, any of the pleadings in this lawsuit asserting title in Sanders and not in Brown were within the litigation privilege. See OCGA § 51-5-8.

However, on September 30, 1993, Sanders rerecorded a deed, as well as a plat, in order to assert a claim to 18 feet of land titled in Brown, which became later the subject of his initial suit. In 1994, when the Browns took the fence down and put it up at another place which Sanders claimed, Sanders called the police and told the police that he owned the land where Brown was erecting the fence. Both the recordation of the plat to claim the additional 18 feet and the oral report to the police of the claim to the land where the Browns tried to erect the fence constituted nonjudicial slander of title thát did not come within the litigation privilege.

Further, on March 20, 2001, when Brown sought to rezone part of her property, Sanders made oral representations to the Board of Commissioners for Cobb County that he and not Brown owned the land sought to be rezoned to dissuade them from acting, but Sanders did not seek a restraining order from the court to prevent the rezoning. Title to this portion of the land was in litigation at this time in this suit, but Sanders’ claim of ownership was made separately from the litigation, and thus, was outside the litigation privilege as well. Cf. Skoglund v. Durham, 233 Ga. App. 158, 159-160 (502 SE2d 814) (1998). Thus, nonprivileged writings and statements that were in evidence would authorize the jury to find slander of title.

(b) Sanders contends that Brown has failed to prove special damages proximately caused by any oral or written statement disparaging Brown’s title. OCGA § 51-12-2 (b); Hicks v. McLain’s Bldg. Materials, supra at 192. We do not agree because Brown lost two contracts for sale of the land due to the slander of title.

“Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered.” OCGA § 51-12-2 (b). Special damages must be proven with sufficient particularity for the jury to estimate the amount thereof with reasonable certainty; exact figures are not required for proof. Nat. Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725, 726-727 (1) (72 SE 191) (1911). A party can “recover only such special damages as he actually sustained as a consequence of the alleged wrongful acts, and he was required to plead them plainly, fully, and distinctly.” Copeland v. Carpenter, supra at 20.

For Brown to show special damages from the loss of either sales contract, she had to prove that the contracts would have been performed but for the slander of title and that any contingencies in either contract were either met or waived, except for a marketable title. The main contingency of the rezoning of the land was satisfied when the Cobb County Board of Commissioners rezoned the land. Since the purchase price for the 50 acres was shown to be $2,000, her cost basis was $40 per acre; therefore, her special damages were the contract price less her cost basis per acre plus the real estate commission of ten percent.

On March 31, 2000, the Sofran Group and Brown contracted for the purchase and sale of 12.5 acres for $175,000 per acre with $10,000 earnest money. Closing was within 30 days of the end of the inspection period of 180 days. When Brown could not cure the marketable title within the “Title Cure Period,” she had to refund the earnest money less $100 so that $990 of the refund would have been real estate commission and $8,910 would have been the balance from the seller. However, on July 8, 2001, the contracting parties agreed to extend the closing date to January 15, 2002. On January 9, 2002, the parties entered into a new contract for the purchase and sale of only four acres at $195,000 per acre contingent upon conveying a marketable title. But the earnest money of $9,900 had to be returned, because Brown could not give a good and marketable title to the land, because of Sanders’ claims. However, since the rezoning of the 12.5 acres of land, this land has increased in value. The jury found $8,068.88 in special damages for Brown, which was less than her share of the earnest money that had to be returned. Thus, there was evidence shown with reasonable particularity to support the verdict for special damages.

(c) Sanders contends that Brown had no viable independent counterclaim to authorize the award of attorney fees and expenses of litigation. The award of expenses of litigation under OCGA § 13-6-11 can only be recovered by the plaintiff in an action under the language of the statute; therefore, the defendant and plaintiff-in-counterclaim cannot recover such damages where there is a compulsory counterclaim. See Alcovy Properties v. MTW Investment Co., supra at 104 (5); White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (4) (417 SE2d 383) (1992). However, if the counterclaim is an independent claim that either arose separately from the plaintiff’s claim or arose after plaintiff’s claim, then a plaintiff-in-counterclaim may recover expenses of litigation. Vogtle v. Coleman, 259 Ga. 115, 117 (3) (376 SE2d 861) (1989).

On April 30, 2001, the trial court granted Brown leave to file a counterclaim for slander of title, because such claim arose after the lawsuit was first filed. While the slander of title could not be based upon Sanders’ claim for fraud in the lawsuit, it could be based upon Sanders’ representations that he owned all the land being rezoned to the Cobb County Board of County Commissioners made to prevent the rezoning. While this basis for slander of title was never raised directly either in the counterclaim or pre-trial order, which only reference Sanders’ claim of ownership, such evidence was introduced at trial without objection; therefore, the pleadings were amended by the evidence at trial. OCGA § 9-11-15 (b); Brackett v. Cartwright, 231 Ga. App. 536, 537-538 (1) (499 SE2d 905) (1998); Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 822-823 (2) (476 SE2d 22) (1996).

Thus, Brown had an independent claim for slander of title, which arose after the institution of Sanders’ suit and amendment asserting fraud, which was not a compulsory counterclaim. OCGA § 9-11-13 (e); Wagner v. Howell Enterprises, 184 Ga. App. 394, 395 (2) (361 SE2d 698) (1987). When a subsequent arising counterclaim is sought to be pled, the trial court must exercise its discretion to allow it, and it constitutes an independent and permissive counterclaim. Jenkins v. Martin, 142 Ga. App. 573, 575 (236 SE2d 542) (1977).

Decided September 23, 2002.

Donald L. Mize, for appellant.

Moore, Ingram, Johnson & Steele, John H. Moore, Amy K. Weber, for appellee.

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A1258.
    NELSON v. GLYNN-BRUNSWICK HOSPITAL AUTHORITY et al.
    (571 SE2d 557)
   Blackburn, Chief Judge.

Dr. William H. Nelson, plaintiff in the underlying tort action, appeals the trial court’s grant of summary judgment to the Glynn-Brunswick Hospital Authority d/b/a Southeast Georgia Regional Medical Center (hereinafter Southeast), Quorum Health Services Center, Quorum Health Services, Inc., and E. Berton Whitaker, defendants below. Nelson contends that there were genuine issues of fact in his claims of (1) defamation, (2) invasion of privacy, (3) intentional infliction of emotional distress, (4) violation of OCGA § 24-9-40, and (5) punitive damages. For the following reasons, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewing the evidence in this light, the record shows that Dr. Nelson was an employee of Sterling Miami,' Inc. (hereinafter Sterling) and pursuant to a contract between Sterling and Southeast, he served as the medical director of the emergency department at the hospital. Prior to becoming the medical director, Nelson, as a physician, had obtained patient treatment privileges at the hospital and had agreed to abide by its policies and procedures.

On March 18, 1997, during treatment of a patient, Dr. Nelson received a suture needle stick, and, following hospital protocols, his blood was tested for certain viruses. The lab results were positive for hepatitis C virus (HCV) antibodies. The patient on whom the suture needle had been used tested negative for HCV. Dr. Nelson’s results were confirmed by blood drawn by Dr. Grubb’s office at Nelson’s request. No further tests have been conducted. At the time of Dr. Nelson’s blood test, guidelines of the U. S. Department of Health & Human Services and the Centers for Disease Control stated that individual test results are not sufficiently reliable to be conclusive proof of current infectiousness or whether the infection is recent or old. These guidelines further indicated that the great majority of persons infected with the disease develop a chronic infection which may result in liver disease and failure.

The results of Dr. Nelson’s hospital blood test were orally relayed from the lab technician to the lab director, who contacted the hospital administrator, appellee E. Berton Whitaker. Together, they discussed with the director of nursing the seriousness of the results. The hospital administrator then telephoned Dr. Nelson, who advised that he knew that the test results would come back positive, apparently because of a ten-year-old incident.

The next morning, the hospital administrator consulted the hospital’s legal counsel, and they decided to assemble an ad hoc group of physicians to discuss the situation. Prior to the meeting of this group, steps were taken to ensure that Dr. Nelson’s test records would not include his name, and his situation was discussed without release of his name to the ad hoc group. The group met on March 27, 1997, but no consensus recommendation was reached. Coincidentally, that same day, the National Institute of Health published a new draft consensus statement of health care experts on the management of the disease. The following day, the hospital administrator sent a letter to Sterling stating that Dr. Nelson had been “diagnosed with Hepatitis C” and'that upon the recommendation of the Wellness Committee, the hospital was limiting Dr. Nelson’s privileges to noninvasive care for the safety of the patients until the hospital’s Executive Committee could meet.

Shortly thereafter, the Executive Committee held its regularly scheduled meeting, which Dr. Nelson attended. As a result of the meeting, on April 2, 1997, the hospital administrator notified Sterling that there would be no further restrictions on Dr. Nelson other than the practice of universal precautions. Subsequently, Dr. Nelson brought suit against the hospital alleging: (1) slander and libel, (2) invasion of privacy, (3) intentional infliction of emotional distress, (4) violation of OCGA § 24-9-40, and (5) punitive damages. The trial court granted defendants’ motions for summary judgment, and this appeal followed.

1. Dr. Nelson asserts that questions of fact exist as to (1) whether the oral communication of his diagnosis to the hospital administrator and other hospital staff constitutes slander and (2) whether the hospital administrator’s letter to Sterling containing the statement that Dr. Nelson was “diagnosed with Hepatitis C” was libelous.

Slander includes oral defamation which charges that a. person has some contagious disorder which may exclude that person from society. OCGA § 51-5-4. Libel, on the other hand, is an expression in writing of a false and malicious defamation which tends to harm a person’s reputation or would cause a person to be the subject of public hatred, contempt, or ridicule. OCGA § 51-5-1. A cause of action for libel or slander will fail if the statement is shown to be truthful. OCGA § 51-5-6.

The record shows that Dr. Nelson’s blood test did indicate that the hepatitis C antibodies were present in his blood. Thus, the fact that Dr. Nelson had been so diagnosed was true. Even if we assume that the statement that Dr. Nelson was diagnosed with hepatitis C was false, based upon the fact that a single test is not sufficient to determine that one is infectious, and that such diagnosis constitutes a defamatory statement that one has a contagious disease which might exclude a person from society and subject that person to contempt, hatred, or ridicule, Dr. Nelson’s claims have no merit, as the statements were not published, were privileged, and were made without malice. The hospital had a duty to the public and to its patients to safeguard them from infectious diseases within their control. There is no question that hepatitis C is an infectious disease. The hospital immediately took action to meet its duty to protect the public, until it satisfied itself that Dr. Nelson, in his medical condition, did not endanger others.

In order to recover for libel or slander, the statement must be published; communication to any other person constitutes publication. OCGA § 51-5-1; Kurtz v. Williams. The oral communication of Dr. Nelson’s blood test results from the lab technician to the lab director, and then to the hospital administrator and other members of the hospital staff including the Executive Committee, did not constitute publication. “[W]hen the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority [,] has reason to receive the information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander.” Id. A review of the record does not disclose any person outside the hospital staff other than Sterling who testified that they heard that Dr. Nelson was diagnosed with HCV from the appellees. The hospital administrator’s acknowledgment that other people knew there was some issue being discussed about Dr. Nelson cannot be construed as an admission that the appellees inappropriately disclosed false information about Dr. Nelson.

Recovery for slander is also barred if the statement made was a privileged communication unless actual malice is proven. OCGA § 51-5-5. Communications are deemed privileged if they are “[statements made in good faith in the performance of a legal or moral private duty” or “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned.” OCGA § 51-5-7 (2), (3). A defendant relying on privilege must show good faith, an interest to be upheld, a statement properly limited in scope, a proper occasion, and publication to proper persons. Davis v. Sherwin-Williams Co.

Clearly, the hospital administrator and the medical center had an interest in protecting the safety of their patients and their own corporate interests in this case. The record clearly demonstrates that the hospital acted in good faith. The administrator testified that his actions were taken under the medical center’s policy permitting the release of patient medical information on the basis of a true health care emergency or an unusual, rare circumstance where serving the common good outweighs privacy considerations. His beliefs were not unreasonable in light of the published authorities on HCV from the U. S. Department of Health & Human Services and the Centers for Disease Control which were available at that time. These publications, relied upon by hospital staff to assess the seriousness and infectiousness of the disease, stated that although the risk of HCV transmission in occupational settings was not well defined, all antibody HCV-positive persons should be considered potentially infectious and that current tests did not provide a reliable measure of the degree of infectiousness of the affected individual. Further, the U. S. Department of Health & Human Services publication stated that about half of all persons who have HCV never recover and carry the virus for the rest of their lives.

In. order to assert the privilege of good faith, the hospital also has to show that the communication was limited to proper persons. The record indicates that communication of Dr. Nelson’s test results was limited to persons directly concerned with the safety of the public and the interests of the hospital. The lab director provided the test results to the hospital administrator out of her concern for the safety of the patients and Dr. Nelson’s health. Thereafter, the administrator, who is not a physician, consulted the director of nursing to confirm the seriousness of the test results and the hospital legal counsel to determine what to do. He also spoke with his chief officer of operations, because that officer took the administrator’s place at the ad hoc committee meeting during his absence.

The administrator also limited disclosure of Dr. Nelson’s diagnosis by instructing the staff to take steps to keep the information confidential, replacing Dr. Nelson’s name on his records with initials or with “John Doe.” Dr. Nelson’s name was not even released to the members of the ad hoc committee. Dr. Nelson cannot complain of the communication to the Executive Committee, since he made sure that the issue would be on the meeting agenda and was in attendance at that meeting. Under these circumstances, we find that the oral statements sharing Dr. Nelson’s test results clearly fall within a good faith privilege.

For the same reasons, the letter written from the hospital to Sterling was protected by a good faith privilege, and there is no issue of fact as to Dr. Nelson’s libel claim. It was reasonable for the administrator to contact Sterling, who was Dr. Nelson’s direct employer. In a similar case, Dominy v. Shumpert, we held that the letter from a physician sent to the contract employer of another emergency room physician and the hospital administrator about the performance of that emergency room physician was a privileged communication when it was motivated out of a concern for patient safety.

Dr. Nelson argues that the issuance of the National Institute of Health’s revised draft of its consensus statement on the management of HCV on March 27, 1997, the same day the ad hoc committee met and one day prior to the issuance of the letter from the hospital to Sterling, compromises the hospital’s good faith privilege based on the seriousness of the disease and its concern for patient safety. We cannot say that it was unreasonable for the hospital administrator, who was not a physician, to rely on the expertise of the internists familiar with the issue, who comprised the ad hoc committee, and his legal counsel in drafting the letter to Sterling. Even if the consensus statement was considered, it still contains warnings of the seriousness of the disease, which were found in earlier authorities on which the hospital relied, e.g., a large percentage of individuals who are infected with HCV have chronic infections which have no symptoms, testing is not conclusive as to active infection, and there is some evidence of occupational transmission of the disease, although transmission from health care workers to patients is thought to be rare.

Lastly, although a good faith privilege may be overcome by evidence of actual malice, OCGA § 51-5-5, Dr. Nelson presents no evidence that the discussion of his status among hospital staff or the letter written to Sterling was done maliciously. Dr. Nelson testified that in a meeting with the hospital administrator after the event, the administrator had no criticism of his clinical or management abilities, and the administrator testified that he had a good relationship with Dr. Nelson.

To obtain summary judgment, a defendant must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins. Based on Nelson’s failure to show publication and the existence of a good faith privilege, recovery is barred for slander or libel.

2. Dr. Nelson contends that there are genuine issues of fact relating to his claim for intentional infliction of emotional distress. “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Punctuation omitted.) Lightning v. Roadway Express. In order to sustain a claim of intentional infliction of emotional distress, Nelson must prove that: “(1) the conduct must be intentional or reckless; (2) it must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe.” Johnson v. American Nat. Red Cross.

Dr. Nelson’s claim of emotional distress lacks merit because the conduct of the appellees was neither intentional or reckless nor outrageous or extreme. The record does not contain any evidence that the hospital administrator or any of the other hospital employees who disclosed Dr. Nelson’s test results did so with the intention to cause Dr. Nelson emotional distress or that they acted recklessly under the circumstances. As previously mentioned, Dr. Nelson’s identity was kept to a small number of persons in the hospital and Sterling, and his hospital records were altered to protect his anonymity. Moreover, the testimony of the hospital administrator demonstrates that the goal of the hospital was to protect Dr. Nelson, the patients, and the hospital’s corporate interests.

In order to recover under this cause of action, the conduct upon which the claim for intentional distress is based must also give rise to such intense feelings of humiliation, embarrassment, fright, or extreme outrage as to cause severe emotional distress. Fitzgerald v. Caplan. “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” (Punctuation omitted.) Bridges v. Winn-Dixie Atlanta.

We cannot find that the conduct here would have given rise to such intense feelings. The record shows that Dr. Nelson’s blood test did show that the hepatitis C antibodies were present in his blood and, although not conclusive, this test provides some indication that Dr. Nelson could have an active infection. The facts of this case have similarities to Fitzgerald, supra, in which we found a doctor’s statement of a diagnosis of cancer, which might not be strictly accurate, was not so outrageous as to support a cause of action for intentional infliction of emotional distress. In Fitzgerald, a medical insurance carrier revealed to its insured that the claim submitted by the patient’s doctor showed a diagnosis which stated, “Pancreas: Determine Extent of Malignancy,” when the patient’s examination had shown the possibility of cancer, but no definite diagnosis had been made. The doctor had testified that he had used that language to ensure that the claim would be honored by the insurer.

Further, we find that Dr. Nelson’s reliance on Tolman v. Doe is misplaced. While Nelson’s test results were made known only to hospital personnel and his contract employer, in Tolman, a doctor sent letters to another physician’s patients and clearly insinuated the physician’s lack of integrity and unfitness to perform his job. The Southeast hospital staff communications and letter to Sterling did not include any allegations about Dr. Nelson’s job performance or integrity.

Dr. Nelson asserts that our past decisions have held that an employment relationship, because of the employer’s power to control the employee, may produce an element of outrageousness that may not otherwise exist in the case. See Coleman v. Housing Auth. of Americus (occupancy supervisor harassed by director of housing authority for three years); Bridges v. Winn-Dixie Atlanta, supra at 230 (part-time cashier allegedly harassed by security manager). Unlike the plaintiffs in those cases, Dr. Nelson did not have a direct employer-employee relationship with Southeast, was not “a captive victim who may fear reprisal for complaining,” Coleman, supra at 167, and was not subjected to repetitive abuse. Under the circumstances of this case, we cannot find that the conduct of the appellees was either intentional or reckless or of the requisite level of outra-geousness or egregiousness to support this claim of emotional distress.

3. Dr. Nelson contends there are genuine issues of fact as to his claims of invasion of privacy. In Cabaniss v. Hipsley, this Court recognized that the invasion of privacy is in reality a complex of four loosely related torts. Of these four, Dr. Nelson has made a claim based on two of these torts: (1) publicity which places him in a false light in the public eye and (2) public disclosure of embarrassing private facts. To establish the claim of false light, Dr. Nelson must establish that false publicity depicted him as something or someone which he is not and that the false light in which he was placed would be highly offensive to a reasonable person. Assn. Svcs. v. Smith. The claim of disclosure of embarrassing private facts requires that “(a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.” (Punctuation omitted.) Napper v. Ga. Television Co.

As we found in Division 1, there was no public disclosure by appellees of Dr. Nelson’s diagnosis, and, therefore, we find these claims without merit. Even if the letter to Sterling could be considered a publication, Sterling is an organization of health care professionals, and, therefore, the standard for determining the offensive or objectionable nature of the letter would be that of a reasonable health care professional. We cannot find that Dr. Nelson’s diagnosis would place him in a light highly offensive to the reasonable health care professional under the circumstances in this case.

4. Dr. Nelson also contends an invasion of privacy based on a failure of the hospital to keep his test result records as a patient confidential. For the purposes of this contention, we assume, without a specific finding, that Dr. Nelson was a patient of Southeast as contemplated under OCGA § 24-9-40 (a). “This court ruled in Orr v. Sievert that a physician [or health care organization] has a duty to protect the privacy of his [or its] patients and that a breach of that duty will give rise to an action for damages.” Jones v. Thornton.

However, the law recognizes that the right of privacy is not absolute. But it (right of privacy) must be kept within its proper limits, and in its exercise -must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern.

(Punctuation and emphasis omitted.) Elmore v. Atlantic Zayre.

OCGA § 24-9-40 (a) protects from liability any physician, hospital, or health care facility which releases medical information of a patient as long as the information is released under written authorization or other waiver by the patient, or by his or her parents or guardian ad litem in the case of a minor, or pursuant to law, statute, or lawful regulation, or under court order or subpoena.

Dr. Nelson’s agreement to abide by the policies and bylaws of Southeast upon application for hospital privileges and his Release and Immunity Statement, which certifies he has no physical or mental impairment that would limit his execution of hospital privileges, i.e., treatment of patients, constitutes a written waiver under OCGA § 24-9-40. In Article XIII of the hospital bylaws, Confidentiality, Indemnification and Immunity, Dr. Nelson authorized hospital representatives and staff to provide and act upon information bearing on his professional ability and qualifications and to waive all legal claims against representatives who act in accordance with the article.

Further, although Section C of this same article ensures the confidentiality of practitioner records, Section D (1) grants the hospital protection from liability upon release of records stating:

No representative of the Hospital or Staff shall be liable to a practitioner for damages or other relief for any action taken or statement or recommendation made within the scope of his or her duties as a representative, if such representative acts in good faith and without malice . . . and in the reasonable belief that the action, statement, or recommendation is warranted by such facts.

Decided September 24, 2002.

Bouhan, Williams & Levy, Walter C. Hartridge, David M. Conner, Austin E. Catts, for appellant.

Taylor, Odachowski & Sperry, Philip R. Taylor, for appellees.

Further, Section D (2) provides that

[n]o representative of the Hospital or Staff. . . shall be liable to a practitioner for damages or other relief by reason of providing information, including otherwise privileged or confidential information, to a representative of this Hospital or Staff or to any other healthcare facility or organization of health professionals concerning a practitioner . . . who did or does exercise clinical privileges ... at this Hospital provided that such representative . . . acts in good faith and without malice.

Under these provisions, Dr. Nelson has executed a waiver relieving Southeast and its representatives of liability if Southeast acted in good faith and without malice. Since Sterling is also an organization of health care professionals, the release of Dr. Nelson’s test results to Sterling is also covered by this waiver. Having addressed the issues of good faith and malice in previous Divisions in favor of appellees, we cannot find a genuine issue of fact upon which Dr. Nelson’s claim can stand.

5. Lastly, Dr. Nelson makes a claim for punitive damages. In accordance with OCGA § 51-12-5.1, punitive damages can only be awarded as additional damages. Since Dr. Nelson has been unable to demonstrate that there is an issue of fact as to his other claims for damages, his claim for punitive damages also fails.

Judgment affirmed.

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

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Kurtz v. Williams, 188 Ga. App. 14, 15 (3) (371 SE2d 878) (1988).

       The only person outside Southeast and Sterling who was alleged to have received information from Southeast, Dr. Ross Goehring, denied in his deposition that he had any knowledge about Dr. Nelson’s lab test.

        Davis v. Sherwin-Williams Co., 242 Ga. App. 907, 908 (531 SE2d 764) (2000).

        Dominy v. Shumpert, 235 Ga. App. 500 (510 SE2d 81) (1998).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Lightning v. Roadway Express, 60 F3d 1551, 1558 (IV) (B) (11th Cir. 1995).

        Johnson v. American Nat. Red Cross, 253 Ga. App. 587, 593 (3) (569 SE2d 242) (2002).

        Fitzgerald v. Caplan, 184 Ga. App. 567, 568 (362 SE2d 103) (1987).

        Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).

        Tolman v. Doe, 988 FSupp. 582 (E.D. Va. 1997).

        Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (381 SE2d 303) (1989).

        Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496) (1966).

       Assn. Svcs. v. Smith, 249 Ga. App. 629, 633 (4) (549 SE2d 454) (2001).

        Napper v. Ga. Television Co., 257 Ga. 156, 161 (356 SE2d 640) (1987).

        Orr v. Sievert, 162 Ga. App. 677, 679 (292 SE2d 548) (1982).

        Jones v. Thornton, 172 Ga. App. 412, 413 (1) (323 SE2d 217) (1984).

        Elmore v. Atlantic Zayre, 178 Ga. App. 25 (341 SE2d 905) (1986).


text:
    A02A1319.
    WADDELL v. BHAT.
    (571 SE2d 565)
   Blackburn, Chief Judge.

In this case involving an action for wrongful disclosure of confidential HIV information, plaintiff below Spencer Waddell, a dental hygienist, appeals the trial court’s grant of summary judgment in favor of defendant, Dr. Subrahmanya Bhat. Waddell contends that the trial court erred in summarily ruling that Dr. Bhat’s disclosure of Waddell’s HIV status to the dentist who both employed Waddell and provided dental care to him was not actionable.

Waddell had filed a separate civil action under the Americans with Disabilities Act (ADA) and the Rehabilitation Act against his employer, in the United States District Court for the Northern District of Georgia, after the employer had refused to allow him to continue treating patients due to his HIV-positive status. The trial court granted summary judgment to the defendant, and the ruling was affirmed by the United States Court of Appeals, Eleventh Circuit. See Waddell v. Valley Forge Dental Assoc., wherein the court held that the hygienist’s HIV-positive status posed a significant risk to the health of patients that could not be eliminated by reasonable accommodation, and thus plaintiff was not a qualified individual within the meaning of the ADA and the Rehabilitation Act. For the reasons set forth below, we affirm the trial court’s grant of summary judgment in the present case.

1. This case of first impression requires this Court to interpret OCGA § 24-9-47, the act by which the legislature has attempted to maintain the precarious balance between the privacy rights of those individuals who have tested positive for HIV and the rights and privileges of health care professionals who provide treatment to them and affected patients. The legislature clearly intended to protect the rights of HIV-infected individuals to keep their medical records confidential, thereby shielding them from inappropriate discrimination precipitated by any societal stigma attached to their malady. On the other hand, it is equally clear that the legislature sought to preserve the safety of those health care providers who give care to HIV-infected individuals and their affected patients, using caution not to elevate the privacy rights of HIV-positive individuals to such a point that the physical well-being of their health care providers and their patients is jeopardized.

In drafting OCGA § 24-9-47, which sets forth the parameters for disclosure of HIV confidential information, our legislature has explicitly set forth the mechanism to accomplish its expressed intentions. OCGA § 24-9-47 (i) provides:

Any health care provider authorized to order an HIV test may disclose AIDS confidential information regarding a patient thereof if that disclosure is made to a health care provider or health care facility which has provided, is providing, or will provide any health care service to that patient and as a result of such provision of service that health care provider or facility: (1) [h]as personnel or patients who may be persons at risk of being infected with HIV by that patient, if that patient is an HIV infected person and such disclosure is reasonably necessary to protect any such personnel or patients from that risk; or (2) [h]as a legitimate need for that information in order to provide that health care service to that patient.

2. The standard of review of the trial court’s grant of summary judgment to the defendants in this case is well established.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that Waddell graduated from college with a degree in dental hygienics. He was employed in a variety of jobs, including food service for several years. After donating blood in 1988, Waddell learned from the American Red Cross that he was HIV-positive. In 1993, after becoming aware of his HIV status, Waddell began working as a dental hygienist for the first time. Although Waddell knew that he was HIV-positive in 1988, he never disclosed this fact to any of his employers, patients, or health care providers.

Waddell underwent several invasive surgical procedures while HIV-positive, including an appendectomy, without disclosing this fact to those health care providers who were at risk while treating him. By late 1996, Waddell was working for a dental clinic owned by Valley Forge Dental Associates, Inc. Dr. Eugene Witkin, who was Waddell’s immediate employer and in charge of the clinic, occasionally provided Waddell with free dental care as a perk of his employment. Before receiving this care, Waddell filled out a new patient questionnaire. On this form, Waddell indicated that he had taken an HIV test and that the results of that test were negative. Waddell claims that he purposefully lied on this form because he was skeptical of Valley Forge’s confidentiality safeguards.

On September 19, 1997, three days after having his teeth cleaned by a dentist affiliated with Dr. Witkin at the Valley Forge clinic, Waddell visited Dr. Bhat to ask him to look at a sore throat. While there, Waddell agreed to an HIV test and signed a consent form which stated: “I consent to the facility’s release of the results of these blood tests to those health care practitioners responsible for my care and treatment or as may otherwise be in accordance with applicable law. I consent to the placement of these test results in my [medical] record.”

Several days later, Waddell returned to Dr. Bhat’s office, and Dr. Bhat informed him that his test results were positive. From Wad-dell’s calm reaction, Dr. Bhat surmised that Waddell was already aware of his HIV status. Dr. Bhat then told Waddell that he had a “moral and ethical obligation to inform [his] employer,” and Dr. Bhat asked Waddell for Dr. Witkin’s name and phone number. Waddell responded by telling Dr. Bhat that there had “been no exposure problems at work” and that he did not believe that disclosure was “necessary.” Dr. Bhat repeated his request for Dr. Witkin’s information and restated his belief that disclosure was morally and ethically required. Then, Waddell gave Dr. Bhat the requested information because he felt like he was “in a corner” and he “wanted to get out of there.”

Shortly after Waddell left his office, Dr. Bhat phoned Dr. Witkin and informed him about Waddell’s test results. Dr. Bhat testified that he phoned Dr. Witkin for two reasons: (1) “to protect the dentist with the health care provider” and (2) “[to protect] the patients of the practice.” Dr. Bhat took issue with Waddell’s decision to work on patients and allow doctors to work on him without revealing his HIV status.

After receiving the phone call from Dr. Bhat, Dr. Witkin decided to place Waddell on temporary paid leave while he and Valley Forge determined how to handle the situation. Ultimately, Waddell was offered a position as a receptionist. When Waddell refused this position, he was terminated. Subsequently, Waddell sued Valley Forge under the ADA.

In the ADA case, the Eleventh Circuit Court of Appeals addressed the possibility that Waddell might infect others:

Even though Waddell and his experts downplay the procedures Waddell had to perform as a dental hygienist and argue that these procedures are not exposure-prone, . . . [t]he uncontroverted evidence establishes that dental cleaning procedures involve the use of sharp objects. In his deposition, Waddell noted that a normal teeth cleaning entailed the performance of “scaling” and “root planing” on the patient. . . . The unrebutted evidence also shows that during routine procedures like scaling and root planing, blood of the patient is commonly present. . . . The combination of sharp instruments used by the hygienist and a patient’s blood commonly being present indicate that the hygienist could cut or prick himself with such an instrument, pierce the skin of his protective glove, and transfer his blood into the patient’s mouth, where it would come into contact with an oral cut or abrasion. In fact, the uncontroverted evidence establishes that a dental worker sometimes does stick or cut himself or herself during treatment.

Waddell, supra at 1282.

Based on these findings, the Eleventh Circuit held:

Waddell has argued that the district court erred in denying his motion for summary judgment on his claims under the ADA and the Rehabilitation Act and in granting Valley Forge’s summary judgment motion. We have decided that the district court was correct in finding that there was no genuine issue of material fact and that Valley Forge was entitled to judgment as a matter of law on the issue of whether Waddell was a qualified individual. Waddell never controverted the fact that if a certain event occurred — a cut or abrasion to the finger of Waddell while performing dental procedures in a patient’s mouth caused by a sharp instrument, an inadvertent bite, or some other accident — there was a specific, theoretically sound possibility of transmission. Because there was such a possibility of transmission, the risk involved . . . was significant due to the fatal nature of HIV.

Waddell, supra at 1284. Waddell testified in the present case that, but for the present lawsuit, he would never have disclosed this information.

In the present action, Waddell contends that Dr. Bhat violated his right of privacy by divulging his HIV status to Dr. Witkin. We cannot agree. As stated previously, disclosure of confidential HIV information has been statutorily addressed by our legislature in OCGA § 24-9-47 (i). In this case, it is undisputed that Dr. Bhat is a health care provider authorized to order an HIV test. OCGA § 31-22-9.1 (a) (9). It is also undisputed that Dr. Witkin and the Valley Forge dental clinic are health care providers who have provided and likely would provide Waddell with health care in the future. OCGA § 31-22-9.1 (a) (8). The evidence also makes it clear that both dentists and patients at the Valley Forge clinic were at risk of being infected with HIV by Waddell. OCGA § 31-22-9.1 (a) (20).

Waddell’s own expert acknowledges this risk. And, in light of Waddell’s dogged refusal to inform any of his doctors or patients of his HIV status, Dr. Bhat’s disclosure to Dr. Witkin was more than reasonably necessary to protect Valley Forge personnel and patients from the risk to which Waddell exposed them. As such, the disclosure made by Dr. Bhat is the type of disclosure OCGA § 24-9-47 (i) explicitly allows, and the trial court did not err in granting summary judgment to Dr. Bhat.

Waddell’s arguments regarding his lack of an explicit consent to the disclosure do not change the result here. To the contrary, such contentions merely obfuscate the statutory framework underlying the issue now before this Court. OCGA § 24-9-47 (i) mandates that, under the facts of this case, the rights of Waddell’s health care providers to know Waddell’s HÍV status before being exposed to the risk of a fatal disease take precedence over Waddell’s right of privacy to conceal his infection with that fatal disease.

In this case, Waddell ignores the statutory balance altogether. He admits the risk that he may transmit HIV to his doctors or his patients. He admits that, should such transmission occur, his doctors or patients could die. He admits that he has concealed and lied about his HIV status since 1988. It is undisputed that health care providers who are providing dental services or invasive procedures to HIV-infected individuals need to know of such condition for their own protection and that of their staff. Waddell admits that he has failed to provide such information to surgeons, dentists, and physicians who have treated him and has lied to them about being HIV infected.

Nevertheless, Waddell argues that his right of confidentiality in this matter outweighs the statutory right of Dr. Bhat to disclose his condition to another treating health care provider for the protection of its employees and their affected pátients. Waddell does not address the fact that, armed with such knowledge, the health care provider is better able to ensure that proper safeguards are maintained in his treatment.

In this case, the health care provider which employs Waddell also has a duty to its patients that Waddell treats. These affected patients have the right to make an informed decision about being treated by him, given the undisputed risk of a potentially fatal exposure to an HIV infection. If we accept that health care providers are entitled to know if their patients are HIV-positive, how can an affected patient be denied the same knowledge about their treating health care provider? How else could they make an informed consent to risk such potentially fatal exposure for themselves or their children?

Applying OCGA § 24-9-47 to the facts of this case, it is clear that Dr. Bhat was authorized to disclose Waddell’s HIV infection to his health care provider, Valley Forge. Under the unique facts of this case, Waddell was an employee of Valley Forge and provided dental hygiene services to its patients. Given the potentially fatal nature of Waddell’s HIV infection, disclosure of such condition to Valley Forge was also authorized so that it could meet its duties to its affected patients. In balancing the intention of the legislature as to the rights of the parties based on the plain, straightforward provisions of OCGA § 24-9-47, disclosure was authorized under the facts of this case. We therefore affirm the trial court’s grant of summary judgment to Dr. Bhat.

Decided September 24, 2002.

Milton D. Rowan, for appellant.

Owen, Gleaton, Egan, Jones & Sweeney, Rolfe M. Martin, for appellee.

Judgment affirmed.

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

        Waddell v. Valley Forge Dental Assoc., 276 F3d 1275 (11th Cir. 2001).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).


author: Ellington, Judge.

text:
    A02A1428, A02A1429.
    MILLIKEN & COMPANY et al. v. POYTHRESS; and vice versa.
    (571 SE2d 569)
   Ellington, Judge.

Following the grant of their application for discretionary appeal in this workers’ compensation case, Milliken & Company and Liberty Mutual Insurance Company (collectively, “the employer”) appeal the order of the superior court affirming the administrative law judge’s (ALJ’s) grant of benefits to John Poythress. Following the grant of his application for discretionary appeal, Poythress appeals the order of the superior court reversing the ALJ’s award of attorney fees to him. In Case No. A02A1428, we conclude that the ALJ’s award of benefits was supported by the evidence and accordingly affirm the superior court’s ruling in that regard. On the other hand, we find the superior court erred in ruling that the ALJ’s award of attorney fees was not authorized. Accordingly, in Case No. A02A1429, we reverse the superior court’s ruling and reinstate the ALJ’s award of attorney fees.

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.

(Citations and punctuation omitted.) Logan v. St. Joseph Hosp., 227 Ga. App. 853, 859 (3) (490 SE2d 483) (1997).

Case No. A02A1428

1. In related enumerations, the employer challenges the factual findings of the AL J.

Viewed in the light most favorable to Poythress as the party prevailing before the appellate division, the record shows the following: For 13 years, Poythress worked in the employer’s textile mill baling towels. In March 1997, Poythress first complained to his supervisor that he was having pain in his neck, arms, and wrists, along with swelling, tenderness, and numbness in both hands, from operating the bale press. Poythress requested a transfer to another plant. Poythress first sought medical treatment and first applied for workers’ compensation benefits in October 1999.

On April 7, 2000, Poythress again sought medical treatment and was diagnosed with inflammation of a tendon in his left wrist, a repetitive use injury attributed to his employment; the condition is called de Quervain’s disease or radial styloid tendonitis or tenosyno-vitis. Poythress also received a diagnosis of degenerative cervical disk disease and cervical spondylosis, also known as severe arthritis of the neck vertebra, which caused operating á bale press to be painful.

The treating physician declared Poythress temporarily disabled effective April 7, 2000. The employer denied Poythress’ request for workers’ compensation benefits. Poythress requested light-duty work, but none was available. On September 25, 2000, Poythress had surgery to his left wrist. He was cleared for full-duty work beginning February 12, 2001.

The ALJ awarded Poythress temporary total disability benefits for the period from April 8, 2000, to February 12, 2001, with the exception of one week when he worked following his wrist surgery. The Appellate Division of the State Board of Workers’ Compensation affirmed the ALJ’s award. The superior court affirmed the ALJ’s decision as to disability benefits.

Based on our review of the entire record, we find the ALJ’s conclusion that Poythress had a compensable injury and was disabled from April 7, 2000, to February 12, 2001, was supported by evidence. See Young v. Columbus Consolidated Govt., 263 Ga. 172, 173 (1) (430 SE2d 7) (1993) (testimony of employee can establish inability to perform job duties). At this stage, we lack the authority to resolve the questions of credibility and conflicts in the evidence identified by the employer. OCGA § 34-9-105 (c), (d); Murph v. Maynard Fixturecraft, Inc., 252 Ga. App. 483 (555 SE2d 845) (2001); Southwire Co. v. Molden, 223 Ga. App. 389, 392 (477 SE2d 646) (1996). Accordingly, we affirm the order of the superior court affirming the ALJ’s award of benefits.

Case No. A02A1429

2. Poythress contends the superior court erred in reversing the award of attorney fees because there was evidence the employer unreasonably denied his claim for workers’ compensation benefits and, in the alternative, because the employer failed to controvert his claim in the time allowed.

The ALJ awarded attorney fees of 25 percent because “this claim has been unreasonably defended, at least in part, after medical evidence demonstrated an injury arose out of and in the course of the employment and benefits should have been then provided.” See OCGA § 34-9-108 (b) (1). The ALJ stated as an alternative basis for “25 percent quantum meruit” attorney fees that “no required WC-1 was filed until the hearing.” The superior court reversed, stating “there is not sufficient competent evidence in the record that the defense of such claims was unreasonable and the ruling otherwise is contrary to law and the evidence in the record.”

The ALJ was authorized to award attorney fees based on the employer’s failure to timely file the mandatory “Employer’s First Report of Injury or Occupational Disease,” designated Form WC-1. OCGA § 34-9-221 (d) provides: “If the employer controverts the right to compensation, it shall file with the board, on or before the twenty-first day after knowledge of the alleged injury or death, a [WC-1] notice . . . stating that the right of compensation is controverted.” OCGA § 34-9-108 (b) (2) provides:

If any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer.

See Rules and Regulations of the State Board of Workers’ Compensation Rule 221 (d) (“Failure to file the Form[ ] WC-1 . . . before the 21st day after knowledge of the injury or death may subject the employer/insurer to an assessment of penalties or attorney’s fees.”).

The record conclusively establishes that the employer knew about Poythress’ claim of a work-related injury at least by October 12, 1999, when the human resources manager made an appointment for Poythress with a panel doctor. The record also establishes that the employer filed its WC-1 on February 2, 2001, the date of the hearing, after the ALJ had reset the hearing at least four times. The employer did not offer any explanation for its noncompliance with OCGA § 34-9-221 (d). Consequently, the evidence supports a finding that such noncompliance was without reasonable grounds. Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 139 (2) (473 SE2d 166) (1996).

Decided September 24, 2002

Lewis, Taylor, Todd & Dixon, John M. Taylor, for appellants.

Bennie H. Black, for appellee.

Because the ALJ’s award of attorney fees was authorized by law and the evidence in the record, the superior court erred in reversing the award of fees.

Judgment affirmed in Case No. A02A1428. Judgment reversed in Case No. A02A1429.

Smith, P. J., and Eldridge, J., concur.


author: Barnes, Judge.

text:
    A01A1781.
    WILLIAMS v. THE STATE.
    (571 SE2d 571)
   Barnes, Judge.

Rady Williams a/k/a Arondel Hope appeals pro se his conviction of criminal trespass at the Atlanta airport, his fifteenth such conviction. This Court has already published three opinions addressing Williams’ appeals of prior convictions. Regarding this latest conviction, Williams contends (1) the trial court erred in failing to “make inquiry on the record related to [his] right to subpoena material witnesses”; (2) his trial counsel was ineffective; and (3) “prejudice and bias of [the] court toward Appellant.” For the reasons that follow we affirm.

The evidence at trial showed that Williams was arrested and convicted numerous times in the past for criminal trespass after repeatedly offering limousine services without a license to passengers at the airport and being asked not to return. In 1998, Williams signed a paper agreeing not to return to the airport unless he was traveling and had an airplane ticket. In August 2000, Williams went to the airport, entered the office of the general manager for the Department of Aviation, and asked to speak to the general manager. After the receptionist told him the manager would be in a meeting for an hour or two, Williams said he would return then and left. The receptionist called the operations director because she knew about Williams’ long history with the airport and because he made her uneasy. The operations director contacted the police. When Williams returned to the airport, he was arrested for criminal trespass.

1. While Williams raises many issues in his brief that were not included in his enumerations of error, we will not consider those additional arguments. “Enumerations of error cannot be enlarged to include other issues not asserted, and appellate review cannot be enlarged or transformed through switching, shifting, or mending one’s hold.” (Citations omitted.) Williams v. State, 208 Ga. App. 153, 154 (1) (430 SE2d 42) (1993).

2. Williams contends the trial court erred in failing to inquire on the record regarding his right to subpoena witnesses. To the contrary, the'first time the case came up for trial, Williams, who was acting pro se, explained that he was not ready for trial because the sheriff had not served Williams’ 43 witness subpoenas. An attorney for the City of Atlanta moved to quash 30 of those subpoenas for insufficient service and because some of the witnesses had no personal knowledge of the case. After argument, the trial court determined that the sheriff’s department had not properly served the subpoenas and granted the city’s motion to quash. The court also granted Williams a continuance and appointed an attorney to assist him in the event the sheriff’s office failed to serve the subpoenas properly.

When the case came back on for trial three months later, the trial court had appointed an attorney to assist Williams. While Williams reiterated that he wanted to represent himself, the court allowed the appointed attorney to argue a motion for discharge and acquittal based on Williams’ speedy trial demand. After the court denied the motion, it asked Williams whether he had any additional matters to address, and Williams responded that he did not. Based on these facts, it is clear that the trial court did not err in failing to inquire about Williams’ right to subpoena witnesses.

3. Williams claims he was prejudiced by ineffective assistance of counsel because his appointed counsel only subpoenaed some of Williams’ witnesses and did not discuss the matter with him, leaving him “virtually unrepresented.” After conducting his own defense during the State’s presentation of its case, Williams chose to have his appointed counsel represent him during the remainder of the trial. Following the verdict, Williams again undertook to represent himself and did not move for a new trial before filing this appeal.

Williams thus failed to raise the issue of ineffective assistance of counsel at the earliest possible opportunity, and his claim is procedurally barred. “It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at the earliest practicable moment.” (Citation and punctuation omitted.) Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994).

[T]he rule that an ineffectiveness claim must be raised “at the earliest practicable moment” requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.

(Emphasis omitted.) Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

4. Finally, Williams contends that the trial court was biased and prejudiced toward him, because it was “personally involved,” had prior knowledge of his similar transactions, and wrongfully procured benefits to the State. OCGA § 15-1-8 provides that a judge may not preside over a case in which she is pecuniarily interested, is related to a party, or previously acted as counsel or judge. None of these situations apply in the case before us. Williams’ complaints of bias and prejudice seem to stem from court rulings with which he did not agree, such as allowing into evidence the document Williams signed agreeing not to return to the airport and not allowing into evidence a prior judge’s statements in a trial for a similar charge that resulted in an acquittal.

These rulings of the court, however, do not show bias against Williams simply because they were favorable to the prosecution, and violate neither OCGA § 15-1-8 nor the Code of Judicial Conduct, Canon 3 (E), which provides that “[j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. . . .” Further,

[i]n order to be disqualifying an alleged judicial bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his or her participation in the case. Although the definition of an “extra-judicial source” arguably includes previous judicial proceedings against a defendant, it has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.

(Punctuation and footnotes omitted.) Butts v. State, 273 Ga. 760, 762-763 (3) (546 SE2d 472) (2001). This enumeration of error has no merit.

Judgment affirmed.

Ruffin, P. J, and Pope, Senior Appellate Judge, concur.

Decided September 25, 2002.

Rady Williams, pro se.

Keith C. Martin, Solicitor-General, Matthew M. McCord, Assistant Solicitor-General, for appellee.

        Hope v. State, 239 Ga. App. 331 (521 SE2d 372) (1999); Hope v. State, 226 Ga. App. 392 (486 SE2d 658) (1997); Hope v. State, 193 Ga. App. 202 (387 SE2d 414) (1989).


author: Ruffin, Presiding Judge. Pope, Senior Appellate Judge,

text:
    A02A1144.
    LAWRENCE v. THE STATE.
    (571 SE2d 812)
   Ruffin, Presiding Judge.

Following a bench trial, Tony Lawrence was convicted of misdemeanor hit and run. Lawrence appeals, challenging the sufficiency of the evidence. Finding insufficient evidence to support Lawrence’s conviction, we reverse.

The standard of review for an appeal from a criminal bench trial requires us to view the evidence in a light most favorable to support the trial court’s judgment. Lawrence “no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Viewing the evidence in this manner, we must determine whether “any rational trier of fact could have found beyond a reasonable doubt that [Lawrence] was guilty of [misdemeanor hit and run] .”

At trial, the State presented little evidence. That evidence showed that Kimberly Watts was stopped at a red light when the car Lawrence was driving “hit [her] from behind.” After her car was struck, Watts exited her car. Watts testified that Lawrence also “got out of his car and he looked at [her] car and looked at his car. He knocked my tag off when he hit me. He picked the tag up, put it on my bumper, and got in his car and left.” Lawrence admitted that he hit Watts’ car, but denied causing any damage. Lawrence testified: “I pressed the brakes, and the car skidded. I got out and looked at the damages. I didn’t see any damages. I got in the car and left.” Based on this evidence, the trial court found Lawrence guilty of hit and run.

On appeal, Lawrence asserts that the evidence was insufficient to support his conviction because there was no proof that he damaged Watts’ car. The offense of hit and run is governed by OCGA § 40-6-270. That Code section requires in part that

[t]he driver of any vehicle involved in an accident resulting in . . . damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident!,] . . . [g]ive his name and address and the registration number of the vehicle he is driving!, and u]pon request and if it is available, exhibit his operator’s license to the person struck or the driver or occupant of or person attending any vehicle collided with.

Any driver who knowingly violates this provision is guilty of a misdemeanor.

Thus, OCGA § 40-6-270 required the State to prove that Lawrence knew he left the scene after damaging Watts’ car. The scant evidence presented tests the limits of criminal culpability under the statute. The salient question is whether the tag falling off of Watts’ car constituted “damage” such that Lawrence knew he was required to remain at the scene and give Watts’ his name, address, and vehicle registration number. This is because, as a general rule, “criminal intent is necessary to sustain a finding of guilt, and a person is not presumed to act with criminal intent.” Moreover, knowledge of the damage is generally considered an element of the offense of hit and run. “It is not absolute and positive knowledge which must be shown, but rather only that the circumstances were such that a reasonable person would have believed that an accident had occurred resulting in . . . damage ... to another.”

There is no evidence in this case that Lawrence had such knowledge. Critical to our analysis is the absence of any evidence concerning actual harm to Watts’ car. The State presented no proof that the collision caused even the slightest dent, ding, or smudge on Watts’ car or license tag, and it is difficult to discern from the evidence what actual harm could have resulted. Although the impact of Lawrence’s vehicle caused the tag to fall off of Watts’ car, we do not know whether the tag was securely affixed to her car before the collision, or how it was attached. There is no evidence establishing what was required to reattach the tag to the car. Under these circumstances, if the tag falling off Watts’ car is considered damage, it is, at most, superficial damage.

The clear legislative purpose of requiring a motorist to stop and provide identifying information when he damages another’s car is to provide a means for the harmed person to contact the wrongdoer and seek compensation. OCGA § 40-6-270 does not criminalize the collision itself, but the hit and run driver’s attempt to evade civil liability by leaving the scene before the injured party can establish his identity. Where, as in this case, the evidence shows that the person who caused the collision stopped and found no damage and that the only asserted harm was superficial, there is no civil liability to avoid, and the statutory requirement serves no purpose. Further, under the evidence presented, a reasonable person would not believe that he or she caused an accident resulting in damage to another vehicle.

For these reasons, we conclude that the evidence presented at trial is insufficient to sustain Lawrence’s conviction. Lawrence saw no damage to Watts’ car, and Watts did not complain of any. The only proof of harm showed that any damage was superficial, at best. Based on this evidence, a rational trier of fact could not have found beyond a reasonable doubt that Lawrence was guilty of misdemeanor hit and run.

Judgment reversed.

Barnes, J, concurs. Pope, Senior Appellate Judge, concurs specially.

Pope, Senior Appellate Judge,

concurring specially.

I concur in the judgment and most of the reasoning of the majority opinion. I disagree, however, with the reasoning that the judgment must be reversed because a reasonable person would not believe that he or she caused an accident resulting in damage to another vehicle where there was only “superficial damage.”

If an accident causes superficial damage, there is an inference that there may be costs involved to repair the damage. For instance, scratched paint. Where the trier of fact draws that inference from facts showing superficial damage, we may not reverse because we must construe the evidence in a light most favorable to support the trial court’s judgment.

In this case, there is simply no evidence of damage, and more importantly, no evidence that Lawrence was aware of any damage. Accordingly, no rational finder of fact could find beyond a reasonable doubt that Lawrence had the intent to leave the scene of an accident that caused damage.

Decided September 26, 2002.

Hillman J. Toombs, for appellant.

Joseph J. Drolet, Solicitor-General, Richard R. Burris III, Assistant Solicitor-General, for appellee.

       See Williams v. State, 228 Ga. App. 698, 701 (2) (492 SE2d 708) (1997).

       (Punctuation omitted.) Id.

       Id. (citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)).

       OCGA § 40-6-270 (a) (1), (2).

       OCGA § 40-6-270 (c) (1).

       (Citations omitted.) Burden v. State, 187 Ga. App. 778, 779 (1) (371 SE2d 410) (1988) (citing OCGA §§ 16-2-2; 16-2-6). See also Dworkin v. State, 210 Ga. App. 461, 462 (436 SE2d 665) (1993).

       Id. See also 7A AmJur2d, Automobiles and Highway Traffic, § 350 (observing that, “[i]n some jurisdictions, criminal liability under a statute which imposes a duty upon a motorist involved in an accident causing damage or injury to another to stop, identify himself or herself, and the like, requires proof that the motorist knew of the damage or injury, or, at least, proof that the motorist reasonably should have known, from the nature of the accident, of the resulting damage or injury”) (footnote omitted).

        Dworkin, supra.

       See 7A AmJur2d, supra at § 349.

       See Dworkin, supra.

       See Williams, supra; Dworkin, supra.