text:
    A98A0595.
    ANTHONY v. CHAMBLESS.
    (500 SE2d 402)
   Eldridge, Judge.

This wrongful death case involves allegations of medical malpractice in the failure to diagnose and treat the decedent, Willie C. Anthony. The plaintiff, Emma Anthony, the widow of the decedent, appeals the trial court’s grant of summary judgment to the defendant, Dr. Fred Chambless. Concluding that summary judgment was proper because the plaintiff failed to present evidence showing that the defendant’s alleged negligence proximately caused the decedent’s death, we affirm.

The facts of this case are as follows: at approximately 11:46 a.m. on December 12, 1988, the decedent fell approximately 30 to 40 feet from a bridge being constructed across Interstate 75 in Monroe County. The decedent was transported to the emergency room of Monroe County Hospital, where he was examined by the defendant at approximately 12:14 p.m. The decedent was conscious and aware of his surroundings. After ordering several tests, the defendant determined that the decedent had suffered a severely fractured pelvis and required surgical treatment beyond that available at Monroe County Hospital, which had no surgical facilities. The defendant consulted with the decedent about the need to transfer him to a hospital that had the necessary medical facilities, and the decedent asked to be transferred to Upson County Hospital because it was closer to his home and he had relatives who worked there. At 1:20 p.m. the decedent was transported to Upson County Hospital, and he arrived at approximately 2:00 p.m. However, his condition deteriorated, and he died at approximately 2:50 p.m. It was later determined that the decedent had suffered a ruptured thoracic aorta, which caused him to bleed internally until his death.

The plaintiff sued the defendant on August 5, 1993 in the Superior Court of Taylor County, alleging that the defendant committed medical malpractice when he failed to properly examine or observe the decedent and, therefore, failed to diagnose the decedent’s ruptured aorta. Such failure to diagnose the condition allegedly resulted in the decision to send the decedent to Upson County Hospital, which is 40 minutes away from Monroe County Hospital, instead of either keeping the decedent for further observation or transferring him to the Medical Center of Central Georgia in Macon, which is 20 minutes away.

Attached to the complaint was an expert’s affidavit, as required by OCGA § 9-11-9.1 (a); the affidavit was based upon the expert’s review of the decedent’s medical records. However, no certified medical records were attached to the affidavit, as required by OCGA § 9-11-56 (e). See Paulin v. Okehi, 264 Ga. 604, 605, n. 2 (449 SE2d 291) (1994); Loving v. Nash, 182 Ga. App. 253, 255 (355 SE2d 448) (1987). Therefore, the medical records were not part of the trial court’s record and were unavailable for review on the defendant’s motion for summary judgment.

The defendant’s answer denied any professional negligence on his part and further asserted that his acts or alleged omissions in rendering treatment did not cause or contribute to the decedent’s demise. The defendant moved for summary judgment on February 7, 1996, asserting that the plaintiff had failed to present any evidence of proximate causation. See OCGA §§ 51-1-27; 51-12-8; Goggin v. Goldman, 209 Ga. App. 251, 252-253 (433 SE2d 85) (1993); Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (a) (304 SE2d 922) (1983).

On February 28, 1997, the trial court held a hearing on the motion, which was granted on June 25, 1997. In its order, the trial court found that there was “no competent evidence to a reasonable degree of medical probability that the death of plaintiff’s husband was caused by the defendant or could have been prevented by him.” It is from this order that the plaintiff appeals.

1. In her first enumeration of error, the plaintiff asserts that the trial court erred in granting summary judgment to the defendant after finding that there was no competent evidence that the defendant’s actions proximately caused the decedent’s death.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis supplied in part.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“Under the statutory definition of medical malpractice, a person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which recovery may be had. OCGA § 51-1-27. . . . Thus, there are three essential elements imposing liability upon which recovery is bottomed: (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.” (Citations and punctuation omitted; footnote and emphasis supplied.) Goggin v. Goldman, supra at 252-253, quoting Hawkins v. Greenberg, supra at 575; OCGA § 51-12-8; Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257) (1997); Grantham v. Amin, 221 Ga. App. 458 (471 SE2d 525) (1996); Dowling v. Lopez, 211 Ga. App. 578 (440 SE2d 205) (1993); Maddox v. Houston County Hosp. Auth., 158 Ga. App. 283, 284 (279 SE2d 732) (1981); Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269) (1978); see also Watson v. United States, 346 F2d 52 (5th Cir. 1965). Although it is not necessary for the plaintiffs 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. See Abdul-Majeed v. Emory Univ. Hosp., supra at 609. Instead, there must be “a realistic assessment of the likelihood that the álleged negligence caused the injury or death.” Id. (upholding summary judgment where the expert testified that it was “more likely that there was a possibility” that death could have been prevented through proper treatment); Grantham v. Amin, supra at 458 (holding that testimony that the defendant’s negligence was a “significant contributing cause” of death was insufficient to establish causation); cf. Lee v. Satilla Health Svcs., 220 Ga. App. 885, 888 (470 SE2d 461) (1996) (holding that “overwhelming testimony” that specific treatment would have prevented a patient from getting worse was sufficient to show causation on summary judgment, even when that testimony was based upon the extensive professional experience of the expert witness and his colleagues, since no scientific studies on the treatment had been completed).

The evidence in this case, when viewed in favor of the plaintiff as non-movant, shows that one of the plaintiff’s experts, Dr. Innes, testified that the decedent would have had an 80 percent chance at survival under certain circumstances. On its face, such prognosis clearly would have met the “reasonable degree of medical certainty” standard. There is no indication that this opinion took into consideration the decedent’s advanced age, his pre-trauma health status, or the severity of his multiple injuries, including a crushed pelvis; such factors would go to the weight and credibility given such opinion by the jury.

However, Dr. Innes’ opinion was based upon a “golden hour” scenario, i.e., where the decedent survives the fall, he arrives at the ER with normal signs of life, his aortic rupture is diagnosed promptly, he is taken to an operating room immediately, and he is operated upon within an hour of the injury. Such scenario was factually impossible in this case. Therefore, the plaintiff’s evidence places the defendant’s negligence outside causation.

The décedent fell at approximately 11:46 a.m. and arrived at the Monroe County Hospital about a half hour later. The defendant recognized that the decedent was severely injured and would require surgery, which was unavailable at that hospital. During his emergency room evaluation, the defendant ordered various diagnostic tests. He subsequently arranged to transport the decedent to a hospital with surgical capacity, and the decedent left Monroe County Hospital at approximately 1:20 p.m., an hour and a half after the fall. The decedent arrived at Upson County Hospital 40 minutes later, well outside the “golden hour.” He died at approximately 2:50 p.m.

There is no evidence in the record which indicates that the defendant negligently delayed transferring the patient or that the patient would have or even could have been transferred more quickly if he had been diagnosed with the aortic rupture. In fact, neither of the plaintiff’s experts criticized the defendant’s efforts in securing the necessary tests and arranging for the transfer. Instead, the experts took issue with the decision to send the decedent to Upson County Hospital instead of the Medical Center in Macon, which was a Level One trauma center with greater surgical capacity and was approximately 20 minutes closer.

However, even if the decedent had been transferred to the Medical Center in Macon, he still would have arrived almost two hours after the fall. In addition, triage and surgical preparation would have postponed treatment for several minutes while the surgical team was assembled and the decedent was prepared for emergency thoracic surgery, including the initiation of general anesthesia. As such, Dr. Innes’ opinion that surgical treatment within the “golden hour” after the trauma would have increased the decedent’s chance of survival to 80 percent is irrelevant in this case, when the evidence clearly shows that such treatment was unavailable or factually impossible. Thus, any chance of survival that medical evidence could support has become so attenuated as to be speculative, and any medical malpractice is too remote to be a concurrent cause of death.

Beyond speculation about the effect of surgical intervention within the “golden hour,” no evidence was presented which showed that there was any reasonable degree of medical certainty that the decedent would have survived absent the defendant’s alleged diagnostic oversight. This was conceded in the deposition of Dr. Innes and by plaintiff’s counsel at the summary judgment hearing. In fact, Dr. Innes admitted that he could testify only that appropriate treatment would have “increased the chances of survival” of the decedent. Although the plaintiff’s other expert witness, Dr. Kulkarni, opined that the decedent may have had up to a 50 percent chance of survival following surgical repair of his aorta, he admitted that such opinion was just “conjecturing” that did not take into account the decedent’s age, state of health, and the possibility of post-operative complications. Such speculation falls far short of meeting the evidentiary standard for establishing causation on summary judgment in a medical malpractice case.

Accordingly, we find that the plaintiff failed to present any evidence of proximate causation, i.e., evidence within a reasonable degree of medical certainty that the decedent would have survived but for the defendant’s alleged negligence. There was no error in the trial court’s grant of summary judgment to the defendant.

2. Plaintiff’s second enumeration of error contends that the trial court failed to consider her expert witness’ testimony regarding the effect of treatment within the “golden hour.” There is no indication that the trial court, in fact, failed to consider this evidence. Even so, the insufficiency of this evidence was addressed in Division 1, supra.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

Decided March 26, 1998.

Paul Carnes, for appellant.

Alston & Bird, Theodore E. G. Pound, Elizabeth Bertschi, for appellee.

       This issue was not raised on appeal and will not be considered herein.

       During the summary judgment hearing, the defendant recognized that a jury issue existed as to whether his treatment of the decedent constituted a breach of his duty or otherwise violated professional standards.

       Notably, both plaintiffs’ experts testified that 70 to 80 percent of patients with a ruptured aorta die at the scene of the accident.

       Compare Richmond County Hosp. Auth. &c. v. Dickerson, 182 Ga. App. 601, 602 (356 SE2d 548) (1987) (holding that the defendant hospital’s expert opinion evidence that the patient had less than a 50 percent chance of survival regardless of treatment did not automatically disprove causation and upholding the denial of its motion for summary judgment; decided prior to Lau’s Corp. v. Haskins, supra).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0601.
    HEIMLICH v. THE STATE.
    (500 SE2d 388)
   Eldridge, Judge.

The defendant, William Scott Heimlich, filed a motion to suppress evidence gathered at what he contends was an illegal roadblock by the Georgia State Patrol. After hearing evidence, the trial court entered an order denying the motion. The trial court granted a certificate of immediate review, which was denied by this Court on May 30, 1996.

After this Court denied the certificate of immediate review, the defendant and the State stipulated to the facts placed in evidence at the suppression hearing and additional facts concerning evidence found after the stop, and the case was submitted for a bench trial without benefit of a hearing. The trial judge found the defendant guilty of: (1) Count 1, driving under the influence of alcohol; (2) Count 3, violation of the open container law; and (3) Count 4, operating a motor vehicle with no insurance.

A motion for new trial was timely filed and submitted without a hearing. It is from the denial of the motion for new trial that the defendant appeals.

In his sole enumeration of error, the defendant contends that the trial court erred in denying his motion to suppress.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment.” (Citation and punctuation omitted.) Pickens v. State, 225 Ga. App. 792 (484 SE2d 731) (1997); Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993). “[T]he trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” (Citations and punctuation omitted.) Weeks v. State, 206 Ga. App. 431, 433 (425 SE2d 421) (1992); Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991), overruled on other grounds in Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994).

Viewed in this light, the evidence shows the following. Trooper T. J. Jackson of the Georgia State Patrol testified that, on March 29, 1995, he and three other uniformed officers initiated and operated a temporary roadblock in Gwinnett County at the intersection of Austin Garner Road and Suwanee Dam Road between the approximate hours of 5:30 p.m. and 7:35 p.m. The post commander, Sergeant Bill Norris, had issued a standing order which allowed the troopers to conduct temporary roadblocks at any time as long as there were two uniformed officers present and the weather was clear.

Trooper Jackson went on to testify that it was daylight when they conducted the roadblock. At the intersection of the two roadways there was a one-way stop sign for Austin Garner Road. The roadblock was marked by three Georgia State Patrol vehicles. The troopers had stationed a marked Georgia State Patrol vehicle on the side of Suwanee Dam Road to the north and south of the stop sign and a third vehicle on the side of Austin Garner Road near the stop sign. Two of the vehicles had bar lights on the top of the vehicle and the third vehicle had a dash light; all were clearly marked as Georgia State Patrol vehicles. A uniformed officer stood on the yellow center-line of each of the three sections of the roadway. Every vehicle which approached the checkpoint from all three directions was briefly stopped and the driver was asked to produce his driver’s license and proof of insurance.

The defendant approached the intersection at approximately 7:00 p.m. When Trooper Jackson requested the defendant’s driver’s license and proof of insurance, he noticed a strong odor of an alcoholic beverage on or about the defendant’s person. Trooper Jackson requested that the defendant pull to the shoulder of the roadway and step to the rear of the defendant’s vehicle. The defendant was given a field sobriety test by Trooper Jackson and was subsequently arrested. Trooper Jackson testified that he was trained in the detection of DUI drivers and had observed numerous persons driving under the influence during his experience as a trooper.

“As there is no question that state troopers are authorized to enforce laws on use, ownership, control, licensing, and registration of motor vehicles and using roadblocks for such purposes [is] reasonable and acceptable, the only issue in this appeal is whether the trial court correctly decided that the evidence established that this roadblock was authorized and that [the defendant] was not singled out to stop.” (Citation omitted.) Mims v. State, supra at 280.

“In Golden v. State, [171 Ga. App. 27 (318 SE2d 693) (1984)] and Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989), we addressed several factors in determining whether the roadblocks which were there in issue were reasonable and constitutional. However, neither Evans nor Golden establishes absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this [C]ourt looked ‘at the totality of the circumstances surrounding the roadblock’ to decide whether the factors in Golden were satisfied.” (Citations and punctuation omitted.) Weeks v. State, supra at 432; see O’Kelley v. State, 210 Ga. App. 686 (436 SE2d 760) (1993).

Decided March 26, 1998.

Donald L. Hudson, Jr., Sharon L. Hopkins, for appellant.

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellee.

Our Supreme Court, relying on Golden, has held that, “where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the ‘screening5 officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication!!,]” a roadblock is “satisfactory” and is “within the constitutional confines of a routine motorist roadblock.” LaFontaine v. State, 269 Ga. 251, 253 (497 SE2d 367) (1998). In this case, all of the criteria set forth in LaFontaine were met. The roadblock was authorized and implemented by supervisory personnel under established criteria. Even though the field troopers had some discretion as to where and when to implement a roadblock, their discretion was “clearly minimal” in light of the post commander’s order that a roadblock could only be conducted when two uniform officers were present and when the weather was clear. See LaFontaine, supra at 253.

“[T]here is no evidence of unfettered discretion by the field troopers and [Heimlich] made no showing that the roadblock was arbitrary or oppressive to motorists. [Heimlich’s] arrest was not the result of a State trooper’s whimsical decision to stop only his vehicle or an arbitrary scheme to single him out. [Cits.]” LaFontaine v. State, supra at 253.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Pope, Presiding Judge.

text:
    A97A1761.
    EPPS et al. v. GWINNETT COUNTY et al.
    (499 SE2d 657)
   Pope, Presiding Judge.

Plaintiff Tonya Epps was James Epps’ wife. On March 1, 1994, James Epps, who wás an inmate at the Gwinnett County Detention Center, died of complications resulting from bacterial endocarditis. Pursuant to his death, on September 6, 1995, plaintiff, individually and as administrator of her husband’s estate, filed a multi-count complaint against defendants Gwinnett County; Jim Carsten, individually and in his official capacity as Sheriff of Gwinnett County; Michael Barkhurst, individually and in hip official capacity as the Jail Administrator of Gwinnett County; Dr. Harvey Schecter, who was the detention center’s medical director; and Prison Health Services, Inc. (“PHS”), which by contract with. Gwinnett County provided inmate health care at the detention center. Count 1 of the complaint alleged defendants were liable to plaintiff pursuant to 42 USC § 1983 for violating her husband’s rights under the Eighth Amendment to the United States Constitution. Count 2 alleged Gwinnett County, Carsten and Barkhurst were liable for violating State statutory laws. Count 3 asserted a claim against all defendants for violating plaintiff’s husband’s State constitutional rights in negligently failing to provide him with adequate medical care.

All of the defendants answered plaintiff’s complaint and denied liability. All the defendants also specifically asserted plaintiff’s failure to file an expert affidavit pursuant to OCGA § 9-11-9.1 as an affirmative defense to Count 3. At no timé, however, did plaintiff dismiss her complaint and refile to attach such an affidavit. Instead, on January 16, 1996, plaintiff amended her complaint to include Count 4, which specifically asserted a medical malpractice claim only against Schecter. Plaintiff attached an expert affidavit to this amendment. Subsequently, on February 20, 1996, plaintiff again amended her complaint to supplement the allegations of Count 4 so as to include a claim against PHS for Schecter’s negligence based on the doctrine of respondeat superior. She also added Count 5, asserting a claim of professional negligence against PHS, and attached a supporting expert affidavit. Finally, plaintiff added Count 6, which claimed PHS was negligent in failing to ensure that its protocols and policies were followed during the treatment of plaintiff’s husband.

Following the above amendments,' the trial court granted Schecter and PHS’s motion to dismiss and for summary judgment. In doing so, it dismissed all counts of the complaint with regard to Schecter and PHS. The trial court then granted Gwinnett County, Carsten and Barkhurst’s motion for summary judgment as to all counts of the complaint. Plaintiff appeals from the trial court’s grant of the abovementioned motions. Finding no error, we affirm.

1. Plaintiff contends the trial court erred in treating Count 3 as a professional negligence claim, and in accordance therewith, granting Schecter and PHS’s motion to dismiss due to plaintiff’s failure to contemporaneously file an expert affidavit with her original complaint. We disagree. Count 3 of plaintiff’s complaint states that: “Defendants failed to provide James Epps with adequate medical care and as a result of their joint or combined negligence, James Epps suffered a loss of life in violation of Article I, Section I, Paragraphs I and XVII of the Constitution of the State of Georgia.” As the trial court determined, this count sounds in professional medical malpractice.

OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” This Code section “applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988). “An expert affidavit is required to be filed where a suit alleges professional negligence and where the issue is the ‘defendant’s compliance with or deviation from the applicable standard of professional conduct,’ which calls for ‘ “highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” (Cit.)’ Jordan, Jones &c., Inc. v. Wilson, 197 Ga. App. 354, 355-356 (398 SE2d 385) [(1990)].” Roebuck v. Smith, 204 Ga. App. 20, 21 (418 SE2d 165) (1992).

In the instant case, Count 3 clearly alleges that plaintiff’s husband did not receive adequate medical care. In order to prove that the medical care provided her husband was inadequate, plaintiff must rely on the knowledge of experts with regard to what the applicable standard of care is, and whether that standard was breached. This is so because such knowledge is beyond the ken of a layman. Consequently, based on the authority set forth above, she was required to file an expert affidavit with her complaint. We are not persuaded to the contrary by plaintiff’s reliance on Howard v. City of Columbus, 219 Ga. App. 569 (466 SE2d 51) (1995). That case is distinguishable from the case at bar in that the complaint in that case alleged State constitutional violations premised on the total denial of medical attention to an inmate, not inadequate medical attention, as was alleged here.

Accordingly, we conclude that the trial court properly granted Schecter and PHS’s motion to dismiss Count 3 of the complaint.

2. In light of the fact that Count 3 of the original compláint asserted a medical malpractice claim against Schecter and PHS, plaintiff’s failure to dismiss her original complaint and refile it contemporaneously with the required expert affidavit is fatal to the claims of medical malpractice she later attempted to assert directly against Schecter and PHS by amendment in Counts 4 and 5, which were premised on the same factual allegations set forth in the original complaint. As the trial court determined, OCGA § 9-11-9.1 (b) contains the only exception to the contemporaneous filing requirement in professional malpractice cases. Specifically, it provides that an expert affidavit may be supplied by supplemental pleading only in “case[s] in which the period of limitation will expire . . . within ten days of the date of filing [of the original complaint] and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to [file any such supplementation].”

In this case, the above exception is not applicable because the statute of limitation did not run until March 2, 1996, which was much more than ten days after the filing of the original complaint. Consequently, the trial court properly granted Schecter and PHS’s motion to dismiss Counts 4 and 5 due to the fact that they were unsupported by any appropriately filed expert affidavit. See Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507 (451 SE2d 66) (1994).

3. The trial court also properly granted summary judgment to Schecter and PHS regarding Count 1 of the complaint. In order to recover under 42 USC § 1983 for alleged Eighth Amendment violations based on inadequate medical care, plaintiff must demonstrate deliberate indifference on the part of Schecter and PHS. A culpable state of mind on their part must be shown. Wilson v. Seiter, 501 U. S. 294, 299 (111 SC 2321, 115 LE2d 271) (1991). This may be done by showing that her husband’s treatment was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness ... [or that his m]edical care [was] so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care. . . .” (Citations omitted.) Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986); see Estelle v. Gamble, 429 U. S. 97, 104-105 (97 SC 285, 50 LE2d 251) (1976); Hill v. DeKalb Regional Youth Detention Center, 40 F3d 1176,1191 (11th Cir. 1994). However, simply asserting “that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U. S. at 106.

Viewed in a light most favorable to plaintiff, her contention in Count 1 that Schecter and PHS were deliberately indifferent to the medical needs of her husband cannot be maintained as a matter of law. Plaintiff has failed to identify any injury or medical condition for which her husband was denied treatment or any incident in which her husband requested and was refused medical care. And the record shows that her husband did in fact receive medical care every time he completed a medical request form. In this case, the record is simply devoid of any evidence amounting to even an inference that Schecter or PHS intentionally and purposefully ignored or failed to respond to plaintiff’s husband’s medical needs. At best, the record evidence shows that plaintiff has a difference of opinion with Schecter and PHS concerning the propriety of medical treatment which was rendered to her husband or what was medically necessary for his treatment. As set forth in the case authority above, this does not provide a basis for recovery against Schecter or PHS pursuant to 42 USC § 1983.

4. In light of our holding in Divisions 1 and 2 that Counts 3, 4 and 5 of plaintiff’s complaint were properly dismissed with regard to Schecter and PHS, we conclude that the trial court properly granted Schecter and PHS’s summary judgment motion as to Counts 4 and 5. We further conclude that the trial court properly granted summary judgment to PHS on Counts 4 and 5 based on the determination that PHS could not be held liable pursuant to those counts for any negligence on Schecter’s part under the doctrine of respondeat superior because Schecter was an independent contractor. Contrary to plaintiff’s contention, the record shows that Schecter was an independent contractor under the facts of this case because it shows that PHS did not control the time, method or manner in which Schecter practiced medicine, as distinguished from the right to merely require certain definite results in conformity with its contract with him. See Gray v. Vaughn, 217 Ga. App. 872, 874-875 (2) (460 SE2d 86) (1995); Brown v. Coastal Emergency Sues., 181 Ga. App. 893, 894-895 (2) (354 SE2d 632) (1987). We also note that Schecter’s contract with PHS specifically states that he is an independent contractor.

5. Because Schecter was an independent contractor, from whom liability could not be imputed to PHS, we agree with the trial court’s assessment that plaintiff has failed to demonstrate the existence of a material fact concerning any causal relationship between PHS’s alleged failure to ensure that he followed its policies and procedures and the death of plaintiff’s husband. Accordingly, we conclude that the trial court properly granted summary judgment to PHS on Count 6.

6. In light of the fact that Count 2 of plaintiff’s complaint did not seek to hold Schecter or PHS liable, the trial court properly granted summary judgment to them on that count.

7. Plaintiff contends that the trial court improperly granted summary judgment to Gwinnett County, Carsten and Barkhurst (“Gwinnett County Defendants”) with regard to Count 1 of plaintiff’s complaint, which alleged that these defendants were liable under 42 USC § 1983 because their acts and omissions regarding plaintiff’s husband amounted to a deliberate indifference to his serious health needs. We disagree.

(a) In order to state a claim against Gwinnett County under 42 USC § 1983, plaintiff must allege facts showing that the Gwinnett County defendants’ acts or omissions, done under color of state law, resulted in the deprivation of a right, privilege, or immunity protected by the United States Constitution or the laws of the United States. Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 156-157 (98 SC 1729, 56 LE2d 185) (1978); Wideman v. Shallowford Community Hosp., 826 F2d 1030, 1032 (11th Cir. 1987). Only “when execution of a government’s policy or custom [is responsible for] inflicting] the injury[, and thus is] the moving force of the constitutional violation [can a governmental entity be held liable].” Monell v. Dept. of Social Svcs., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978). “What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Citation and punctuation omitted.) Kilgo v. Dept. of Corrections, 202 Ga. App. 50, 51 (413 SE2d 507) (1991). “A plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity.” Colle v. Brazos County, Texas, 981 F2d 237, 245 (5th Cir. 1993).

In the instant case, the record is barren of any evidence of implementation of an intentionally corrupt or impermissible policy by any of the Gwinnett County defendants so as to authorize a cause of action against Gwinnett County under 42 USC § 1983. As the trial court determined, the fact that Gwinnett County contracted with PHS to provide medical care at the detention center, and that it relied on PHS to provide such care, does not amount to an intentionally corrupt or impermissible policy which would violate any citizen’s Eighth Amendment rights. And there simply is no indication that any of the Gwinnett County defendants deliberately invoked a policy to interfere with PHS’s provision of medical care to inmates or to deny inmates access to medical care. As previously noted, plaintiff’s argument in this case is essentially a medical malpractice claim which is insufficient to establish liability under 42 USC § 1983 for an alleged Eighth Amendment violation. Estelle, 429 U. S. at 106.

Furthermore, the facts of this case simply fail to show any culpable conduct on the part of Carsten, as sheriff, or Barkhurst, as jail administrator, which is in any way even remotely related to any alleged inadequacy or delay in providing medical care to plaintiff’s husband. Accordingly, summary judgment was properly granted to Gwinnett County as to Count 1 of plaintiff’s complaint.

(b) Summary judgment as to Count 1 also was properly granted to Carsten and Barkhurst individually. Governmental officials performing discretionary functions are granted qualified immunity shielding them from the imposition of personal liability pursuant to 42 USC § 1983 “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Citation omitted.) Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993). Unless a government official’s act is so obviously wrong, in' light of pre-existing law, that only a plainly incompetent official or one who was knowingly violating the law would have done such a thing, the governmental official has immunity from suit. “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing5 violates federal [or constitutional] law.” (Citation omitted.) Lassiter v. Alabama A & M Univ. &c., 28 F3d 1146, 1149 (11th Cir. 1994).

In this case, contrary to plaintiff’s contention, there is no evidence supporting a finding that Carsten or Barkhurst violated any clearly established statutory or constitutional right by merely relying on PHS to provide medical care to inmates at the detention center. Nor is there any more than speculation on plaintiff’s part that Carsten and Barkhurst failed to adequately supervise PHS in the performance of its contract. Such speculation and conjecture are insufficient to create even an inference that would bar summary judgment to Carsten and Barkhurst as to Count 1 in this case. See Taylor v. N. 1. L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996).

8. Summary judgment in favor of the Gwinnett County defendants as to Count 2 of plaintiff’s complaint also was warranted. Pursuant to Count 2, plaintiff argued that these defendants were liable for violating State law. See OCGA §§ 42-4-4 and 42-5-2. While it is true that OCGA §§ 42-4-4 and 42-5-2 created an obligation on the part of the Gwinnett County defendants, that obligation was merely to provide inmates with access to medical care. What is considered proper medical care, however, is not addressed by the above Code sections. In this case, the obligation to provide access to medical care was met by contracting with PHS. And it is undisputed that every time plaintiff’s husband completed a medical request form, he actually did receive medical attention. Thus, he never was denied access to medical care. Moreover, there is no evidence that any of the Gwinnett County defendants ever interfered with PHS’s provision of medical care to plaintiff’s husband. Under such circumstances, we conclude that there is no question of fact as to whether any of the Gwinnett County defendants are liable under State law for the death of plaintiff’s husband. Clearly, they are not.

9. - Due to our holding in Division 1, the Gwinnett County defendants’ motion for summary judgment regarding Count 3 of the complaint was proper. So was summary judgment in their favor regarding Counts 4, 5 and 6 because those counts did not assert any claim for recovery against the Gwinnett County defendants.

Judgments affirmed.

Johnson and Blackburn, JJ, concur.

Decided March 6, 1998

Reconsideration denied March 27, 1998

Waddell, Emerson & Buice, E. Angela Emerson, Martin L. Fierman, for appellants.

Meadows, Ichter & Trigg, Mark G. Trigg, Rhett E. W. Marionneaux, Jr., Melinda K. Wells, Caryl Sumner, for appellees.


author: Smith, Judge.

text:
    A97A2037.
    MACKO et al. v. CITY OF LAWRENCEVILLE et al.
    (499 SE2d 707)
   Smith, Judge.

William and Patricia Macko brought this complaint for declaratory judgment, abatement of a nuisance, and damages. They appeal from the Gwinnett County Superior Court’s grant of summary judgment to the City of Lawrenceville, Appalachee Enterprises, Inc., and five adjacent property owners.

In 1986, Appalachee Enterprises, Inc. (“Appalachee”), a property developer, filed a subdivision plat in the real property records of Gwinnett County. Builder Gaines Brown constructed a home on Lot 90 of the subdivision property and sold it to the Mackos in December 1987. Unfortunately, the property flooded during heavy rains, allegedly causing significant property damage.

In August 1991, the Mackos sued Brown and the City of Lawrenceville, Georgia (“City”). The Mackos asserted that the City negligently allowed Brown to build their home in a defective manner, thereby creating a continuing nuisance, i.e., recurrent flooding. The City brought a third party claim against Appalachee. Following a jury trial, judgment was entered in favor of the Mackos for $60,000 against Brown and $90,000 against the City; the City was awarded $18,750 against Appalachee. The City appealed, and this Court reversed the judgment against the City. See City of Lawrenceville v. Macko, 211 Ga. App. 312 (439 SE2d 95) (1993) (“Macko F).

Subsequently, in September 1995, the Mackos filed this suit and named the City, Appalachee, and five adjacent property owners as defendants. The complaint, as amended, alleged that the Mackos’ property suffered recurrent flooding as a result of inadequate drainage from the neighboring properties and that such flooding constituted a continuing nuisance. The Mackos sought a declaratory judgment as to the liabilities of each defendant, abatement of the nuisance, and damages.

With one exception, all of the defendants moved separately for summary judgment. The Mackos also moved for summary judgment and declaratory relief. The trial court conducted a motions hearing on September 9, 1996, and thereafter granted the defendants’ motions. The claim against the remaining defendant, James Pritchett, subsequently was dismissed by the trial court. The Mackos appeal.

1. In three enumerations of error, the Mackos assert the trial court erred in granting summary judgment to the City on the basis of res judicata or collateral estoppel. “OCGA § 9-12-40 provides that A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-42 provides that ‘For a former judgment to be a bar to a subsequent action, the merits of the case must have been adjudicated.’ These code sections together set out the basic principles of res judicata in Georgia. For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. Further, the doctrine of res judicata will bar an action even if some new factual allegations have been made.” (Citations and punctuation omitted; emphasis supplied.) City of Macon v. Pasco Bldg. Systems, 191 Ga. App. 48, 50 (380 SE2d 718) (1989); Bradley v. Ga. Inst, of Technology, 228 Ga. App. 216 (1) (a) (491 SE2d 453) (1997); Motherly v. Kinney, 227 Ga. App. 302, 304 (2) (489 SE2d 89) (1997); see also Stone Man, Inc. v. Green, 265 Ga. 877, 878 (463 SE2d 1) (1995).

In Macko I, supra, the City was a named defendant and made a third party claim against Appalachee; Appalachee answered and participated in the trial of the case. In reversing the trial court’s verdict against the City, this Court specifically found that the City’s approval of the subdivision plat did not constitute an acceptance of responsibility for the drainage system. Macko I, supra at 317. Further, there was “no evidence that the City exercised any control over this drainage system” so as to establish a duty to maintain it. Id.; see also Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

In Hibbs, the Supreme Court of Georgia held that “the sole act of approving a construction project which leads to an increase in surface water runoff cannot impose liability for creating or maintaining a nuisance,” in the absence of evidence that the City assumed the responsibility of maintaining the drainage system. Hibbs, supra at 338. Accordingly, the issue of whether the City could be held liable for failure to maintain the drainage system was decided adversely to the Mackos in Macko I. In the present case, the Mackos’ claim for a declaratory judgment against the City regarding its responsibility for maintáining the system therefore is barred by the doctrine of res judicata.

The Mackos’ claims for abatement and damages were pled and adjudicated in Macko I as well and are also barred by res judicata. Further, any claims for damages allegedly occurring after Macko I are barred by collateral estoppel to the extent that such claims are premised upon the Mackos’ assertions that the City is responsible for maintaining the subdivision’s drainage system.

Because the Mackos’ other claims of negligence by the City should have been raised in Macko I, they are also barred by res judicata. Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 536-537 (478 SE2d 601) (1996). Although the Mackos assert that certain material facts of this case are different than those considered in Macko I, their citation to almost 200 pages of exhibits in the record and their generalized references to disparate treatment by the City are inadequate to support this contention. See Court of Appeals Rule 27 (c) (3) (i).

Even so, the Mackos insist that Macko I cannot be construed to bar the present action against the City because the “identity between the cause of action or issues raised in the present suit and those adjudicated in the prior action cannot be uncertain, indefinite, or based upon inferences.” Glen Oak v. Henderson, 258 Ga. 455, 458 (369 SE2d 736) (1988). The complaining party, however, has the burden to perfect the record on appeal. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). In this case, the Mackos have not filed the record from the prior proceedings. Accordingly, they have not carried their burden of demonstrating error with regard to the application of the res judicata and collateral estoppel doctrines. Petkas, supra at 108; Lee v. State Constr. &c. Bd., 205 Ga. App. 497, 498 (2) (423 SE2d 26) (1992); Dashiell v. Standard Mgmt. Co., 174 Ga. App. 442 (1) (330 SE2d 179) (1985). We find no error in the trial court’s grant of summary judgment to the City.

2. The Mackos are correct in their assertion that their claims against the remaining defendants are not barred by res judicata. The Mackos are not asserting that these defendants are joint tortfeasors with the City, nor are their claims against the City necessarily contradictory to or mutually exclusive of their claims against the other defendants. See Maxey v. Hosp. Auth. of Gwinnett County, 245 Ga. 480, 481 (265 SE2d 779) (1980), overruled on other grounds, Williams v. Physicians &c. Hosp., 249 Ga. 588 (292 SE2d 705) (1982); see also Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 883 (209 SE2d 676) (1974). As such, the remaining defendants were not entitled to summary judgment on the ground of res judicata.

3. The Mackos assert that the subdivision developer, Appalachee, is responsible for creating a nuisance by negligently installing inadequate drainage pipes and curbs. The Mackos’ cause of action against Appalachee for any nuisance created by Appalachee is barred by the applicable four-year statute of limitation unless it is a continuing nuisance. OCGA § 9-3-30. Id. The evidence showed that Appalachee’s installation of the drainage system was completed prior to 1989, when the Mackos’ property first flooded. As such, any nuisance created by the allegedly inadequate system was complete and apparent in 1989, more than four years prior to the filing of this suit. See Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 669 (3) (472 SE2d 499) (1996); see also Rowe v. Steve Allen & Assoc., 197 Ga. App. 452, 453 (398 SE2d 717) (1990). No evidence was presented that Appalachee took any action subsequent to 1989 that increased the flooding problem. Any nuisance created by Appalachee is therefore not a continuing nuisance, and the Mackos’ cause of action against Appalachee is barred by the applicable four-year statute of limitation, OCGA § 9-3-30.

4. The Mackos assert that prior to purchasing his property in 1989, defendant Johnson contracted with Appalachee to fill in a detention pond and negligently extended drainage pipes, thereby contributing to the Mackos’ flooding problems. But even if the Mackos’ assertions are supported by the evidence, such actions were completed more than four years prior to the initiation of this suit and any claims based upon those actions are therefore barred by the statute of limitation. OCGA § 9-3-30; see also Division 3, supra.

5. The Mackos assert they are entitled to a declaratory judgment by the trial court as to which parties are responsible for maintaining and improving the drainage system. Throughout this case, the Mackos have asserted that the City accepted dedication of the drainage system and is therefore responsible for maintaining and repairing the drainage pipes. This assertion is supported by the Mackos’ expert witness and is shared by the defendant property owners. But this issue was considered in Macko I, and this Court found that the City was not responsible for maintaining the system. See Division 1, supra. As a result, the only issue remaining for decision in this case is the Mackos’ entitlement to a declaration that the defendant property owners have a duty to maintain or improve the drainage pipes.

Georgia’s trial courts have the “power to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respects to his rights, status, and legal relations.” Calvary Indep. Baptist Church v. City of Rome, 208 Ga. 312, 314 (66 SE2d 726) (1951); see also OCGA § 9-4-2 (a), (b); Adams v. City of Ra, 221 Ga. App. 372, 373 (2) (471 SE2d 310) (1996).

No dispute exists in this case that the drainage pipes at issue run through the properties owned by defendants Reedy, Johnson, Wilson, and Pritchett. Further, evidence was presented that these pipes have not been maintained properly or that they are undersized, and that these problems have resulted in the flooding of the Mackos’ property. A clear dispute exists, however, regarding which, if any, of the defendants are responsible for maintaining the pipes. The Mackos therefore have demonstrated their entitlement to a declaratory judgment establishing the rights and responsibilities of each party. The trial court erred in granting summary judgment to defendants Reedy, Johnson, Wilson, and Pritchett on the Mackos’ claim for a declaratory judgment regarding this issue.

6. The Mackos maintain they were also entitled to have the trial court declare the proper method for alleviating the flooding. We do not agree. This matter is an engineering or construction problem and not a legal issue. It is not appropriate for a declaration of rights in a court of law. See generally Liner v. City of Rossville, 212 Ga. 664, 665 (94 SE2d 862) (1956); see also Cook v. Sikes, 210 Ga. 722 (82 SE2d 641) (1954).

7. The Mackos also assert that the trial court erred in failing to grant summary judgment in their favor on their request for a declaratory judgment as to the extent of the easements on the defendants’ properties. Because disputed factual issues exist, the Mackos were not entitled to summary judgment on this issue. See OCGA §§ 9-4-5; 9-4-6; compare Adams, supra at 372-373 (1).

8. In addition to their request for a declaratory judgment, the Mackos petitioned the trial court to issue an order requiring the defendants to abate the nuisance. The Mackos assert the trial court erred in granting summary judgment to the defendants on the ground that the Mackos allegedly failed to give proper ante-litem notice pursuant to OCGA § 41-1-5 (b). This statute requires that, “Prior to commencement of [a nuisance] action by the alienee of the property injured against the alienee of the property causing the nuisance, there must be a request to abate the nuisance.” OCGA § 41-1-5 (b). Mere passive or constructive knowledge by a defendant of the existence of a nuisance is insufficient to satisfy the requirements of this statute. See Ga. Power Co. v. Fincher, 46 Ga. App. 524, 526 (168 SE 109) (1933). But the statutory notice requirement applies only to an alienee “who merely acquires property on which there is an existing nuisance, passively permits its continuance, and adds nothing thereto, [Cits.]” Ga. Power Co. v. Moore, 47 Ga. App. 411, 412 (170 SE 520) (1933). No ante-litem notice is necessary when the defendant alienee has altered the property so as to create or increase a nuisance. Id. at 412; Savannah Elec. &c. Co. v. Horton, 44 Ga. App. 578 (162 SE 299) (1932).

(a) If the trial court finds that defendants Reedy, Johnson, Wilson, and Pritchett are responsible for the maintenance, repair, and improvement of drainage pipes on their respective properties, then it must determine whether or not the defendants received adequate notice to abate the alleged nuisance under OCGA § 41-1-5 (b). Because the Mackos have presented no evidence that these defendants created a nuisance by negligently installing or altering the allegedly undersized drainage pipes, each defendant is entitled to such notice before they can be held liable for their failure to abate the nuisance. The Mackos assert that they sent letters to defendants Reedy, Johnson, Wilson, and Pritchett on October 7, 1994. But those letters were legally insufficient to give the required notice to abate a nuisance caused by the allegedly undersized pipes. These defendants therefore were entitled to summary judgment on the Mackos’ request for abatement of the nuisance and their claim for damages resulting from flooding catised by the allegedly undersized drainage pipes.

(b) Further, although some evidence was presented that the drainage pipe on the Wilson property was broken, the Mackos’ October 7, 1994 letter gave no notice of this problem or demand to abate. Summary judgment was appropriate as to the Mackos’ request for an order of abatement of this alleged nuisance.

The Mackos have presented some evidence that the drainage pipe on defendant Reedy’s property is broken and that this break contributes to the flooding. The Mackos specifically notified Reedy of this problem in a letter dated October 7, 1994 and requested that he “immediately correct it.” We find this notice was adequate under OCGA § 41-1-5 (b), and the trial court therefore erred in granting summary judgment to Reedy on the Mackos’ request for an order of abatement and damages for failure to abate the nuisance.

Decided March 11, 1998

Reconsideration denied March 27, 1998

Mottern & Van Gelderen, Leon A. Van Gelderen, Mottern, Fisher & Rosenthal, Sheri M. Rosenthal, for appellants.

Webb, Tanner & Powell, Anthony O. L. Powell, Robert J. Wilson, for appellees.

9. Under OCGA § 41-1-5, “ ‘maintenance’ of a nuisance is the failure to abate the nuisance after notice by the injured party.” Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 731 (426 SE2d 387) (1992). Accordingly, any damages accruing prior to this notice are not recoverable. Roberts v. Ga. R. &c. Co., 151 Ga. 241, 248-249 (106 SE 258) (1921).

10. As to defendant McKinney, there is no evidence that any drainage pipes run through his property. McKinney was therefore entitled to summary judgment on the declaratory judgment action. Further, the only negligence asserted against McKinney was his alleged failure to remove lawn debris in a timely manner. Even if this negligence amounted to a nuisance, the Mackos failed to give McKinney adequate notice to abate under OCGA § 41-1-5 (b). See Division 8, supra. Accordingly, there was no error in the trial court’s grant of summary judgment to this defendant.

11. The remaining enumerations of error have been considered and addressed in the preceding divisions or have been found to be without merit.

Judgment affirmed in part, reversed in part, and case remanded for consideration pursuant to this opinion.

McMurray, P. J., and Beasley, J., concur.

       The neighbors named in the suit were Peggy C. Reedy, W. Lewis Johnson, Sr., William McKinney, James Pritchett, and Richard Wilson.

       The Mackos assert that Pritchett purchased and installed an inadequate drainage pipe on his property. But this assertion is not supported by a citation to evidence in the record and therefore will be treated as abandoned. Court of Appeals Rule 27 (c) (3) (i).

       The October 7, 1994 letters stated that the City “has placed the blame on the homeowners [for] not maintaining the drainage pipes in the subdivision.” It then notified the defendants that “[i]f further litigation is necessary, you may be named as a party based on the city’s position and the fact that compliance with applicable regulation may adversely impact your property. Naturally, we should take steps to ensure that the responsible parties assume responsibility for their mistakes and correct the drainage problems. I suggest that you contact the city in this regard.”


author: Johnson, Judge.

text:
    A97A2327.
    SMITH v. THE STATE.
    (499 SE2d 663)
   Johnson, Judge.

Cheryll Smith was charged with malice murder and felony murder in connection with the shooting death of her boyfriend, James Brown. A jury found her guilty of voluntary manslaughter. Smith appeals from the conviction entered on the verdict and the denial of her motion for new trial.

1. Smith challenges the sufficiency of the evidence to support the verdict. Viewed in the light most favorable to the verdict, the evidence shows the following: Smith and Brown had been dating for about three years. Brown’s friend, Harvey Spruill, lived in Brown’s apartment periodically. In the spring of 1995, Smith called Brown’s apartment at 2:00 a.m. and asked for Brown. Spruill answered the phone and told her Brown was not there. Smith called back twice that morning, told Spruill she was “tired of this” and said she would “blow [Brown’s] f-g head off.” The following day, Brown told Spruill that he and Smith had been arguing in Smith’s apartment the night before and Brown left. Smith followed Brown, chased him in her car, ran him off the road and fired a gun into the air.

In April 1995, Brown asked police to accompany him to Smith’s apartment to retrieve some of his belongings. Brown told the officer who responded to the call that Smith had previously threatened his life and fired a gun at him, and that he did not want any trouble. When Brown and the officer arrived at Smith’s apartment, she denied having Brown’s property. Brown told Smith to tell the officer about the time she shot at him. Smith argued with Brown and drove away. A month later, Smith moved into Brown’s apartment.

Brown’s friend of four years, Jefferson Sheets, heard Smith threaten to shoot or kill Brown on more than one occasion. In September 1995, the month of the fatal shooting, Brown’s ex-girlfriend was talking on the telephone with Brown when she heard a noise. Brown told her that Smith had pushed him or knocked the phone out of his hand.

On September 13, 1995, just hours before the shooting, Sheets went to Brown’s apartment and noticed broken glass on the living room floor and a gun on the living room table. Sheets noted that Brown normally kept a gun on the television or on the table. Brown told Sheets he was unhappy with Smith and was going to ask her to leave his apartment. Brown told Sheets he was concerned about how Smith would react, thinking she might “go off.” The two men went out for a while, and Sheets dropped Brown at the gate to his apartment complex at about 11:00 p.m. Smith came to Brown’s apartment around 1:00 a.m. At 2:30 a.m., Smith called police and reported that Brown had been shot. When police arrived two to three minutes later, they found Brown dead on the living room floor with a gunshot wound to the head.

Smith told officers at the scene that she and Brown had been arguing and that both reached for the nearby gun to prevent the other from getting it. They struggled, and the gun discharged. A short time later, at the police station, Smith gave a recorded statement saying that she and Brown “got into an argument and he was like telling me to get out again. . . . We been arguing for about really for like the last, I don’t know . . . how long.” The argument was only verbal at that point. Smith stated that as she went to turn the television on, Brown must have thought she was going to get the gun, which was on top of the television, and he moved toward her. Smith said she grabbed the gun, swung it toward Brown, they wrestled, and the gun discharged, striking Brown. Forensic testing was conducted on the 9mm pistol; it could not be made to fire accidentally or malfunction.

A person commits voluntary manslaughter when she kills another person, under circumstances which would otherwise be murder, and acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. OCGA § 16-5-2 (a). Although Smith claimed she did not intend to fire the gun, her intent and whether she acted in the heat of passion or with justification depended largely on the credibility of the witnesses, which was for the jury to assess. See Brown v. State, 225 Ga. App. 218, 219 (483 SE2d 633) (1997). The evidence was sufficient to authorize the jury to find Smith guilty of voluntary manslaughter beyond a reasonable doubt.

2. Smith contends the trial court erred in not permitting defense counsel to ask Smith’s witnesses what Smith had told them about prior difficulties between her and Brown, and in allowing the state’s witnesses to testify about statements Brown made to them about the couple’s difficulties.

(a) At issue is the following testimony of the state’s witnesses: Spruill’s testimony that Brown told him that a day earlier Smith chased him in his car and fired a gun into the air; Sheets’ testimony that Brown told him he was going to break up with Smith and that he was concerned she would “go off” on him; the ex-girlfriend’s testimony that Brown said Smith pushed him or knocked the phone out of his hand; and the officer’s testimony that Brown told him Smith had threatened his life in the past.

While hearsay may not be admitted solely because it concerns prior difficulties, the testimony at issue falls within the necessity exception to the hearsay rule. Hearsay may be admitted based on necessity if (1) there is necessity, and (2) there are particularized guarantees of trustworthiness. McKibbons v. State, 226 Ga. App. 452, 454 (2) (486 SE2d 679) (1997). Because the declarant is deceased, the necessity element of the necessity exception is satisfied in this case. The crucial question is whether the statements were made under circumstances that indicate they were trustworthy. See Holland v. State, 267 Ga. 833, 837 (3) (483 SE2d 584) (1997). “As to the second requirement, the declaration of the decedent is admissible when it is coupled with circumstances which attribute verity to it. [Cits.]” Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993). Spruill was the victim’s best friend and roommate. They worked together and were friends for three or four years. The victim told Spruill about the chase and prior shooting incident after Spruill asked the victim what happened the night before. Spruill questioned the victim after Smith kept calling the apartment upset, and said she would “blow [Brown’s] . . . head off.” Considering the circumstances, including Smith’s conversations with Spruill the night before and the close relationship between Spruill and the victim, there were sufficient indicia of trustworthiness. See McKibbons, supra.

Similarly, the statement to Sheets concerning Brown’s intent to break up with Smith and his concern about her reaction was made in confidence, as Brown sought advice from his friend. The testimony of Brown’s close friends recounting Brown’s description of Smith’s assault and threats near the time of the killing bore particularized guarantees of trustworthiness and were properly admitted under the necessity exception to the hearsay rule. See McMichen v. State, 265 Ga. 598, 604 (4) (a) (458 SE2d 833) (1995).

Brown’s statement to police explaining why he wanted them to escort him to Smith’s apartment also had sufficient indicia of reliability. Brown had no apparent reason to lie to the police about why he felt he needed a police escort to retrieve his belongings from Smith’s apartment. The fact that Brown confronted Smith with the accusation in the officer’s presence is further indication of the statement’s reliability. The totality of the circumstances surrounding the making of the statement indicates its trustworthiness. See Dix v. State, 267 Ga. 429, 431 (2) (479 SE2d 739) (1997).

Finally, the statement to the ex-girlfriend, explaining the noise while Brown was on the phone, was admissible as coming within the res gestae exception to the hearsay rule. See OCGA § 24-3-3.

(b) The trial court did not commit reversible error by refusing to allow Smith’s witnesses to testify about certain statements she made to them. Smith argues the trial court should have allowed testimony of her sister, LaCresha Brooks, regarding who Smith said inflicted scratches, bruises and a burn upon her; Michelle Mitchell, regarding which abusive relationship Smith should leave; and Sharon Kendrick, regarding who Smith said inflicted bruises on her.

Assuming this evidence was admissible, and that Smith could satisfy the requirements of the necessity exception to the hearsay rule, the testimony was merely cumulative of other evidence admitted at trial. For example, Smith’s mother testified that she saw bruises on Smith’s body and that when she confronted Brown, he admitted he had been “physical” with Smith. In addition, in her statement read at trial, Smith stated that she and Brown got into fights, that he was stronger than her, that he “always comes at [her] . . . grabbing [her] face . . . that kind of stuff,” that he bruised her by grabbing her, and that he left a scar on her shoulder.

Similarly, the trial court allowed LaCresha Brooks to testify that she noticed scratches on Smith’s neck and chest, a burn on her ankle, and bruises on her ears. Brooks testified that Smith told her who inflicted the injuries and, as a result of what Smith told her, she advised Smith to leave Brown.

Sharon Kendrick was permitted to testify that she observed marks and bruises on Smith, that she and Smith talked about the marks, and that Kendrick advised Smith to move out.

In addition, Michelle Mitchell testified that the day before the fatal shooting she observed a burn on Smith’s shoulder, discussed the matter with Smith, and advised her to “get out of that situation . . . as soon as possible.” Considering the testimony which was admitted, any error in not admitting the prior statements at issue was rendered harmless. See Ware v. State, 252 Ga. 90, 91 (4) (310 SE2d 908) (1984).

3. Smith contends that the trial court erred in not suppressing statements she made while in custody at the police station when police continued to interrogate her after she made what was at least “an ‘equivocal’ or ‘ambiguous’ request” for an attorney. She argues that officers should have “clarified what her request was and gotten a clear response that she was willing to talk to them without an attorney.” We disagree.

A Jackson v. Denno hearing was held prior to trial to determine the admissibility of Smith’s custodial statements. The evidence adduced at the hearing showed the following: Smith was taken to the police station immediately after the shooting. Detectives read her Miranda rights, including the right to have an attorney present and to not answer any questions. When asked if she wanted to talk about the case, Smith replied: “[S]o if I want an attorney right now, what do I do?” The investigator responded that if she wanted an attorney, she could request one, and that the court would appoint an attorney if she could not afford to hire one. Smith said: “O.K., yes, I don’t, I mean. . . .” Detective: ‘We’re investigating a homicide, Cheryll.” Smith: “Please, please, don’t.” Detective: “I know you don’t want to hear the word, but listen to me.” Smith: “Just — no. I just don’t know what to do.” Detective: “Right.” Smith: “I mean, I can tell you what happened.” Detective: “Right.” Smith said she “can’t deal with this.” The detective told her they were going to ask her what happened in the apartment. When Smith began telling what happened, the detective asked her if she understood her rights. Smith said: “Yes, I understand those.” The detective asked if she wanted to talk, to which Smith replied “I don’t know. I mean, I just — I don’t — .” The detective told Smith it was up to her, and that it was her decision to make. He gave her the waiver form, read it to her, and asked her to fill it out. Smith again stated she did not know what to do. The detective asked if she wanted him to give her time to think about it. Smith replied that she could not believe this was happening and began talking about how Brown fought her. The detective asked her to read and sign the form, then told her he would give her some time to think about it.

Detectives left and returned about 40 minutes later. They asked Smith if she had been advised of and understood her rights. She said ‘Yes.” Smith apparently signed the waiver form at that time and gave her oral statement. The signed “Statement of Miranda Rights” and waiver form is part of the record.

We agree with the trial court’s determination that Smith did not assert her right to counsel before making the statement to police. It is true that law enforcement officers must immediately cease questioning a suspect who has clearly asserted a right to have counsel present during custodial interrogation. Jordan v. State, 267 Ga. 442, 444 (1) (480 SE2d 18) (1997). Smith’s statements, however, did not clearly communicate a request for counsel. Therefore, officers were not required to stop questioning her.

Even were we to agree with Smith, arguendo, that she made an ambiguous request for counsel, there was no error. Contrary to Smith’s position, officers were not required to seek clarification from her before continuing any interrogation. “After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney. . . . We decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning [her]. Davis v. United States, [512 U. S. 452 (114 SC 2350, 129 LE2d 362) (1994)].” Jordan, supra at 445. Our courts have recently held that statements such as “I guess I need a lawyer,” “(m)aybe I should talk to a lawyer,” and “[I don’t] know what to do,” are not unambiguous requests for counsel and do not obligate officers either to stop questioning or to obtain clarification from a detainee before continuing. See Tucker v. State, 228 Ga. App. 321, 322-323 (1) (a) (491 SE2d 420) (1997). The trial court did not err in denying Smith’s motion to suppress the statement.

4. There is no merit to Smith’s enumeration that the trial court should have given her requested charges on involuntary manslaughter and mutual combat.

(a) An involuntary manslaughter charge was not authorized. Smith argues there was evidence she unintentionally shot Brown while committing a lawful act, specifically, trying to defend herself. However, a charge on involuntary manslaughter is not required where the defendant asserts using a gun in self-defense, even where the gun accidentally discharges. See Lamon v. State, 260 Ga. 119, 120 (2) (390 SE2d 582) (1990). We also note that the trial court charged on accident and self-defense. We find no error.

(b) Nor was a charge on mutual combat authorized, inasmuch as there was no evidence that Brown and Smith were both armed with deadly weapons and mutually intended or agreed to fight. See Holcomb v. State, 268 Ga. 100, 105 (6) (485 SE2d 192) (1997).

5. Smith argues that the trial court erred in denying her Batson motion, in which she claimed the state discriminated against African-American jurors in its use of peremptory strikes. We find no reversible error.

After the jury was selected but before it was sworn, the trial court asked counsel if they had any objections to the jury. Smith’s attorney stated that he objected to the procedure, but did not elaborate at that time. The trial court remarked that it was late in the day and that they would finish in the morning. The next morning, Smith’s attorney voiced three objections to the procedure used to select the jury, one of which was a Batson challenge. Smith’s counsel stated that the panel consisted of 27 white and 24 African-American jurors and that the state used all six of its peremptory strikes against black veniremen. The trial judge remarked that defense counsel should have raised the Batson issue the evening before, prior to the stricken panel members being excused. A challenge made at this point, the court found, was untimely. The court went on to find that Smith had not proven a Batson violation, noting that no evidence had been presented as to the racial composition of the panel or the jury as selected.

Although it would have been preferable for Smith to make the Batson objection before the panel had been excused so that any problem could be easily remedied, Smith’s Batson challenge was timely because it was made before the jury was sworn. Compare Greene v. State, 260 Ga. 472, 473 (1) (396 SE2d 901) (1990). Nonetheless, the court’s finding that the Batson objection was untimely was harmless, since the trial court did consider the motion. As the trial court stated, other than defense counsel’s verbal statement above as to the makeup of the panel and the state’s six strikes, there was no competent evidence of the racial composition of the panel or resulting jury.

“Under the initial prong of Batson, the defendant has the burden to establish a prima facie case of racial discrimination as a result of the state’s use of its strikes. To do so, [Smith] was required to show that [she] is black; that the prosecutor exercised peremptory strikes to remove blacks from the petit jury, and that these facts and other relevant circumstances, including relevant statistical data as to the racial composition of the petit jury panel, the strikes exercised by both parties, and the racial composition of the resulting jury, raise an inference that the prosecutor struck blacks from the petit jury on the basis of race. [Cits.]” Woods v. State, 208 Ga. App. 565, 566 (2) (431 SE2d 167) (1993). Smith had the burden of completing the record with information revealing the racial composition of the panel from which the jury was selected, the breakdown of the strikes of both parties, and the racial composition of the resulting jury. The colloquy between the court and counsel does not suffice. See id. at 566; Shaw v. State, 201 Ga. App. 438, 439-440 (1) (411 SE2d 534) (1991). Smith failed to carry her burden to show by the record facts necessary to prove her Batson claim. See Shaw, supra at 440 (1).

6. Smith claims the trial court erred in denying her claim of ineffective assistance of trial counsel. She argues that trial counsel failed to adequately consider, investigate and evaluate whether to present the battered woman syndrome theory as'part of her defense and to retain an expert in that field to assess Smith and testify on her behalf. At the hearing on the motion for new trial, Smith’s trial counsel stated that at the time of the trial he was familiar with the battered woman syndrome and was familiar with leading case law on the theory. Counsel conducted legal research and also discussed the syndrome with a psychologist. Defense counsel concluded that, based on the evidence, particularly Smith’s own statement in which she never claimed to be afraid of Brown and in which she said they were both going for the gun to keep the other from getting it, he would not be able to convince a jury that Smith fit within the theory. Counsel testified that he did not believe that the syndrome would be a viable strategy given the facts of this case.

The constitutional right to assistance of counsel “ensures the defendant that his counsel will sufficiently investigate the facts of the case, adequately research the law, and then present the case in a competent and reasonably effective manner. [Cit.]” Berryhill v. Ricketts, 242 Ga. 447, 450 (3) (249 SE2d 197) (1978). Smith’s trial counsel did these things and then, in his reasoned judgment, determined that assertion of the battered woman syndrome defense in this case was unrealistic. See id. The decision not to pursue a defense is one of trial strategy with which we will not generally interfere. “Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 259 (1) (c) (483 SE2d 687) (1997).

Smith also claims trial counsel failed to research suppression and Batson issues. As discussed above, the motion to suppress Smith’s statement to police was properly denied. Smith has failed to show that a new trial would have been granted based on either the Batson or the suppression issues. See Polk, supra at (1) (d). The trial court did not err in finding that trial counsel’s representation of Smith did not amount to ineffective assistance of counsel.

Decided March 6, 1998

Reconsideration denied March 27, 1998

John A. Pickens, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Elisabeth G. Macnamara, Priscilla E. N. Carroll, Assistant District Attorneys, for appellee.

7. Smith’s enumerations claiming that the trial court erred in denying her motion for new trial and that the trial was fundamentally unfair, which were based on the foregoing arguments, are similarly without merit.

Judgment affirmed.

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


text:
    A97A2549.
    ZARACH et al. v. ATLANTA CLAIMS ASSOCIATION et al. CLAXTON v. ZARACH et al.
    A97A2550.
    (500 SE2d 1)
   Smith, Judge.

Dr. Robert Zarach and Chamblee Chiropractic Center filed suit against Atlanta Claims Association, William R Claxton, and the law firm of Goodman, McGuffey, Aust & Lindsey seeking damages for: libel; slander; intentional infliction of emotional distress; disparagement of services, and unfair trade practices; injury to peace, happiness, and feelings; and false light invasion of privacy. The complaint also sought punitive damages and attorney fees under OCGA § 13-6-11.

The three defendants filed motions for summary judgment in the trial court. Atlanta Claims Association’s motion sought partial summary judgment on plaintiffs’ claims for: intentional infliction of emotional distress; injury to peace, happiness, and feelings; false light invasion of privacy; punitive damages; and attorney fees. The trial court granted Atlanta Claims Association’s motion and ruled sua sponte in the association’s favor on the remaining claim of libel.

The trial court also granted Goodman, McGuffey, Aust & Lindsey’s motion for summary judgment on all claims. The court denied Claxton’s motion for summary judgment on the claims of libel, false light invasion of privacy, punitive damages, and attorney fees, but granted summary judgment on the claims for intentional infliction of emotional distress, and injury to peace, happiness, and feelings.

In Case No. A97A2549, Zarach and Chamblee Chiropractic Center appeal from the trial court’s grant of summary judgment to Atlanta Claims Association and Goodman, McGuffey, Aust & Lindsey. In Case No. A97A2550, Claxton cross-appeals from the trial court’s denial of his motion on the claims for libel, false light invasion of privacy, punitive damages, and attorney fees.

Under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991), defendants were entitled to summary judgment if they showed, by the record, an absence of evidence to support an essential element of the plaintiffs’ case. In determining whether the trial court’s rulings were correct in this case, we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party. Denise v. Cannon, 219 Ga. App. 765, 766 (466 SE2d 885) (1995).

Claxton is an attorney and partner in the law firm of Goodman, McGuffey, Aust & Lindsey. The majority of his practice involves representing insurance companies and handling their questionable or fraudulent insurance claims. Sometime in mid-1994, Claxton was approached by a member of the Atlanta Claims Association, a local nonprofit organization, and asked to participate in an upcoming seminar on insurance fraud. Claxton, who is a member of the association, agreed to speak at the seminar and to prepare a topic entitled “Fraud Indicators” for the seminar materials. The papers he provided for the topic consisted of a table of contents with fourteen sections, one of which was entitled “Keview of Vietnamese Claims.”

Claxton included a separate section on Vietnamese claims in his seminar material because, in his opinion, the Vietnamese community seemed to be targeted by certain professionals for their insurance claim business more than any other cultural group. In this section of his seminar material, Claxton included a packet of information he obtained from an insurance company that had asked him to investigate a personal injury claim made by one of its Vietnamese insureds. The insurance claims supervisor included plaintiffs’ advertisement from a local Vietnamese newspaper in this packet because Zarach had treated the insured for injuries he allegedly received in an automobile accident. Claxton included plaintiffs’ advertisement in his seminar material to illustrate his point that chiropractors and other professionals were soliciting the Vietnamese community for its insurance claims business.

Upon completing the seminar material, Claxton submitted the original to the Atlanta Claims Association without making a copy for himself. Claxton contends that because of an oversight, he inadvertently included a copy of plaintiffs’ advertisement without redacting the names. He further contends that a copy of the advertisement with plaintiffs’ names redacted was prepared, but he mistakenly failed to include this redacted version with the original papers.*

Claxton’s article, along with articles submitted by other speakers at the seminar, was copied and bound for handout at the seminar by an Atlanta Claims Association representative. Neither this representative nor anyone else at Atlanta Claims Association supervised, oversaw, proofed, redacted, or approved any of the seminar material submitted by the five speakers at the insurance fraud seminar. Atlanta Claims Association followed this procedure for all previous seminars and never had any previous problems with its policy of not reviewing seminar materials submitted by speakers.

Atlanta Claims Association made 150 copies of the seminar booklet and made them available to seminar attendees. During the seminar, Claxton never reached the section of his materials on Vietnamese claims because he ran out of time. The advertisement, however, was noticed by a fraud investigator attending the seminar who brought it to the attention of Zarach’s current attorney.

Case No. A97A2550

1. Claxton first alleges the trial court erred in failing to grant his motion for summary judgment on plaintiffs’ libel claim on the ground that he was immune from civil liability pursuant to the provisions of OCGA § 51-1-20. The immunity granted by this Code section is limited to: “[a] person serving with or without compensation as a member, director, or trustee, or as an officer of the board without compensation, of any nonprofit . . . association or of any nonprofit, charitable . . . institution or organization . . . acting in good faith within the scope of his or her official actions and duties.” OCGA § 51-1-20 (a). Although it is undisputed that Claxton was a member of Atlanta Claims Association at the time of the seminar, no evidence was presented to support his contention that his participation in the seminar was within the scope of any official actions and duties owed to the association. Absent such a showing, Claxton is not entitled to the immunity provided for in this statute. Compare Bunkley v. Hendrix, 164 Ga. App. 401 (296 SE2d 223) (1982) (member of board of governors of nonprofit organization entitled to civil immunity under former Code Ann. § 105-114 for official actions authorizing activity at which plaintiff injured). The trial court did not err in failing to grant Claxton’s motion for summary judgment on these grounds.

2. Claxton next contends the trial court erred in denying his motion for summary judgment on plaintiffs’ libel claim because the evidence of record fails to support a claim for either libel per se or libel per quod. We agree.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1. A written defamatory statement is actionable as either libel per se or libel per quod. Macon Telegraph Pub. Co. v. Elliott, 165 Ga. App. 719, 723 (5) (302 SE2d 692) (1983).

“Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality.” (Citations and punctuation omitted.) Barber v. Perdue, 194 Ga. App. 287, 288 (390 SE2d 234) (1989). Statements that tend to injure one in his trade or business also are libelous per se. See Southern Co. v. Hamburg, 220 Ga. App. 834, 840 (3) (470 SE2d 467) (1996). When determining whether words are defamatory as a matter of law, courts may not hunt for strained constructions, see Willis v. United Family Life Ins., 226 Ga. App. 661, 662 (487 SE2d 376) (1997), and must rely upon the words themselves in considering whether a statement was defamatory per se. See Mathews v. Atlanta Newspapers, 116 Ga. App. 337, 339 (157 SE2d 300) (1967); Barber, supra. “Defamatory words which are actionable per se are those which are recognized as injurious on their face — without the aid of extrinsic proof. However, if the defamatory character of the words [does] not appear on their face but only become defamatory by the aid of extrinsic facts, they are not defamatory per se, but per quod, and are said to require innuendo. [Cit.]” Macon, supra at 723. The law is abundantly clear in Georgia — words that are libelous per se do not need innuendo. World Ins. Co. v. Peavy, 110 Ga. App. 651, 654 (139 SE2d 440) (1964).

In this case, plaintiffs have not demonstrated that the inclusion of plaintiffs’ advertisement in the seminar material was defamatory as a matter of law. A copy of plaintiffs’ advertisement appears in the appendix to Claxton’s seminar material in the section entitled “Review of Vietnamese Claims.” Although no words accompany the advertisement explaining the purpose behind its inclusion in the seminar material (i.e., to illustrate how professionals, including chiropractors, solicited the Vietnamese community for their insurance claims business), neither are words included charging plaintiffs with participating in insurance fraud or operating their chiropractic business in a criminal, dishonest, or immoral manner. Absent any such language, we cannot see how the inclusion of plaintiffs’ advertisement in the seminar material, on its face, impugned plaintiffs’ character or business as a matter of law.

We reject plaintiffs’ argument that through the use of innuendo and extrinsic evidence (i.e., the placement of the advertisement in the “Fraud Indicators” portion of the seminar material), an inference of defamation was created. As discussed previously, rumor, innuendo, and extraneous circumstances cannot be relied upon in considering whether a writing is defamatory as a matter of law. Willis, supra at 663; World Ins. Co., supra at 654. The defamatory character of written material must appear on its face, and a seminar participant’s subjective decision to impute innuendo to the inclusion of the advertisement in the material is simply not actionable as defamation per se. See Cox Enterprises v. Bakin, 206 Ga. App. 813, 818 (1) (426 SE2d 651) (1992). See also Chance v. Munford, Inc., 178 Ga. App. 252 (342 SE2d 746) (1986) (posting notice stating plaintiff was not allowed in store was not defamatory regardless of readers’ speculation on possible reason for exclusion).

We also find that the inclusion of plaintiffs’ advertisement in the seminar materials is not actionable as libel per quod. An essential element of an action for libel per quod is that the plaintiff be able to show special damages. Jamison v. First Ga. Bank, 193 Ga. App. 219, 222 (3) (387 SE2d 375) (1989). These special damages “must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value.” (Citation and punctuation omitted.) Id. Because the record establishes that plaintiffs have not sustained any financial or economic damage as a result of the inclusion of this advertisement in the seminar material, plaintiffs have no claim for libel per quod. Accordingly, the trial court erred in denying Claxton’s motion for summary judgment on plaintiffs’ libel claim. See generally Webster v. Wilkins, 217 Ga. App. 194, 196-197 (456 SE2d 699) (1995).

3. In his next enumeration of error, Claxton argues the trial court erred in denying his motion for summary judgment on plaintiffs’ claim for false light invasion of privacy.

“To constitute the tort of invasion of privacy by publicity which places one in a false light in the public eye, there must be established as one of the elements of the tort, that the publicity was false; to wit, it depicts the plaintiff as something or someone which he is not.” (Citations and punctuation omitted.) Merz v. Professional Health Control &c., 175 Ga. App. 110, 111 (332 SE2d 333) (1985). See also Cabaniss v. Hipsley, 114 Ga. App. 367, 376-377 (3) (151 SE2d 496) (1966).

This element of falsity is absent in this case because plaintiffs have admitted they were advertising in Vietnamese newspapers and actively soliciting Vietnamese patients for their insurance claims business. The depiction of plaintiffs as chiropractors soliciting Vietnamese patients therefore was not a false depiction. As discussed in Division 2, above, certain people at the seminar might speculate from the inclusion of plaintiffs’ advertisement in the “Fraud Indicators” section of the material that plaintiffs were participating in insurance fraud. But “[w]hatever innuendos people may draw” from such inclusion “is a matter of individual thought processes, not enhanced, abetted, distorted or misrepresented” by the inclusion of the advertisement in the seminar material. Brown v. Capricorn Records, 136 Ga. App. 818, 820 (222 SE2d 618) (1975). Plaintiffs were not presented in a false light; they were depicted as being what they were — professionals targeting Vietnamese patients for their insurance claims business. See Cabaniss, supra at 376-377.

Because Claxton negated one essential element of plaintiffs’ false light claim, the trial court erred in denying his motion for summary judgment.

4. In light of our decisions in Divisions 2 and 3 determining that plaintiffs have no claims against Claxton for libel or invasion of privacy, we -also find that the trial court should have granted summary judgment in favor of Claxton on plaintiffs’ claims for punitive damages and attorney fees.

Case No. A97A2549

5. In their appeal, Zarach and Chamblee Chiropractic Center first enumerate as error the trial court’s grant of summary judgment to Goodman, McGuffey, Aust & Lindsey. We need not address this issue, however, in light of our decisions in Divisions 2 through 4, above, because plaintiffs’ claims against the law firm are predicated upon respondeat superior and are therefore purely derivative in nature. See Gardner v. Boatright, 216 Ga. App. 755, 756 (455 SE2d 847) (1995).

6. Plaintiffs also enumerate as error the trial court’s grant of summary judgment to Atlanta Claims Association on all of plaintiffs’ remaining claims. As discussed above, the inclusion of plaintiffs’ newspaper advertisement in the seminar material was not defamatory and did not invade plaintiffs’ right of privacy. Accordingly, the trial court’s grant of summary judgment to the association on these grounds was not error.

Decided March 11, 1998

Reconsideration denied March 27, 1998

Jonathan P. Sexton, Aleksandra H. Bronsted, for Zarach.

Gorby & Reeves, Michael J. Gorby, Daniel E. Turner, for Claxton.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, for Atlanta Claims Association.

We also note that the trial court did not err in granting summary judgment sua sponte to Atlanta Claims Association on plaintiffs’ libel claim.

“Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. The crucial point is to ensure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” (Citations and punctuation omitted.) Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (1996).

All three defendants filed motions for summary judgment in the trial court. Although Atlanta Claims Association’s motion did not seek summary judgment on the libel claim, the motion of the other defendants did. The issue of whether the alleged defamatory statement was or was not libelous therefore was dealt with extensively in plaintiffs’ brief filed in opposition to Claxton’s and Goodman, McGuffey, Aust & Lindsey’s motion, and the trial court had an opportunity to consider all of plaintiffs’ arguments now raised on appeal prior to the entry of summary judgment. Because plaintiffs had full and fair notice and opportunity to litigate this issue in the trial court, there was no error in the trial court’s sua sponte grant of summary judgment to Atlanta Claims Association.

Judgments affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.

       Prior to the filing of the motion for summary judgment, Zarach and Chamblee Chiropractic Center voluntarily dismissed without prejudice their claims against all three defendants for slander and disparagement of services and unfair trade practices.

       Plaintiffs have not appealed the trial court’s dismissal of their claims against Claxton for intentional infliction of emotional distress and injury to peace, happiness, and feelings.

       The advertisement is primarily in Vietnamese, and no translation has been provided by either party. The names of Chamblee Chiropractic Center, Zarach, and Featherstone are written in English along with the office’s address, telephone, and hours of operation. Also in English are the words “Auto Accident” and “Workers’ Compensation.”

       The record shows that some names in Claxton’s seminar material were redacted.

       In its pleadings, Atlanta Claims Association expressly denies Claxton’s participation in the seminar was within the scope of any official acts or duties owed to the association.