text:
    A96A0885.
    POPE et al. v. GOODGAME.
    (478 SE2d 636)
   Andrews, Judge.

Shirley Pope and James Gillis, children of Nancy Gillis and administrators of her estate, appeal from the judgment entered on the jury’s verdict in favor of defendant James Goodgame, a radiation physicist. We affirm.

1. Construing the evidence so as to support the jury verdict, Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991), it was that Nancy Gillis suffered from breast cancer for which she underwent a mastectomy by Dr. Morgan in March 1987. Dr. Morgan then referred her to Dr. Smith, a radiologist, who advised her to undergo radiation therapy of the chest wall. She underwent 25 treatments from May 21 through June 24, 1987.

Goodgame began working with Dr. Smith and his partners in 1985 as a radiation physicist. Dr. Smith’s professional association and Goodgame had an agreement that the “radiation physics would be handled by [Goodgame] as a consultant radiation physicist, not as an employee.” Goodgame had a master’s degree in physics, had done a Public Health Service fellowship, received a certificate in radiation physics from Emory University, and completed all of his work for his Ph.D. in physics except for his dissertation. For Radiology Services, Dr. Smith and the other doctors’ professional association, Goodgame was responsible for calibrating the cobalt machine used in the radiation therapy, i.e., measuring how much radiation the cobalt was producing. While the strength of the cobalt could not be controlled, the time of exposure to the radiation could. Goodgame charged a basic dosimetry charge of $40 for the initial calculations performed when the patient began treatment and then a “continuing physics” charge of $35 for his bi-weekly review of the patient’s chart. The billing of insurance was done by the administrative secretary for the doctors, and Goodgame received 85 percent of amounts collected for these two charges. The remaining 15 percent was a fee for processing the charges and insurance.

Goodgame’s job was to make the calculations to ensure that the dosage prescribed by the doctor was delivered by the cobalt machine at the depth prescribed by the doctor. For this purpose, Goodgame had developed a computer program which he used to calculate treatment time. The machine used for the treatment of Gillis was an El Dorado 8 cobalt machine, in which Goodgame owned no interest.

Dr. Smith’s prescription for Gillis was 5,000 rads (radiation absorbed dose) given by anterior port, with an axillary boost (treatment of the underarm area from the back). The rads were delivered from the front to the chest in the clavicle area. Because the armpit area is thicker, in order for there to be a homogenous dose of 5,000 “you’ve got to give more entrance dose to get the lower part of the deeper part of the axilla up to the surface dose.” According to Dr. Smith, the radiation physicist would calculate how much radiation was being given from the anterior port and then determine what boost was needed for the axilla. The 5,000 rads was an accumulated dose, achieved by adding 200 rads a day.

After a few weeks of treatment, Gillis had developed a sore under her arm. Since the treatment was nearing an end, it was determined that it should continue, and the sore resolved itself over several weeks. After the treatments ended, Gillis began to have shortness of breath and eventually was hospitalized with pneumonia. In October 1987, she was diagnosed with radiation pneumonitis. She died in 1991, and the cause of death was listed as aspergillus (fungal infection), cystic degeneration and radiation pneumonitis.

It was alleged that Gillis “died as a result of the negligence of James Goodgame.” In the pretrial order the claim is that Goodgame “negligently conducted and directed radiation therapy on Nancy Gillis.”

2. The first enumeration is that the court erred in not submitting to the jury and giving requested charges on the issue of joint venture or partnership regarding the radiation treatment of Gillis.

(a) Based on the description of his job as given by Goodgame and verified by Dr. Smith, the radiologist, and pretermitting the fact that it would be illegal for him to do so, Goodgame was not practicing medicine. Gillis v. Goodgame, 262 Ga. at 117; Doctors Hosp. &c. v. Bonner, 195 Ga. App. 152, 155 (1) (392 SE2d 897) (1990). Therefore, there could be no basis for submitting to the jury the issue of joint venture or partnership with regard to the medical decisions made in the treatment of Gillis, including the recommendation to undergo radiation treatment.

(b) Gillis’ own experts, Dr. Spanos (radiation oncologist) and Dr. Ross, opined that Gillis was not an appropriate candidate for radiation therapy, a decision in which Goodgame did not participate. Neither had an opinion that, once the decision was made to administer radiation therapy, it was done in an inappropriate manner. According to Dr. Spanos, nothing that Goodgame did or did not do caused the radiation pneumonitis of Gillis.

(c) Apparently, plaintiffs contend that, because there was a business relationship between the doctors and Goodgame, the joint venture/partnership issue still should have been submitted to the jury.

“A joint venture or undertaking for profit occurs when there exist rights of mutual control as to the conduct of the various members of the enterprise. [Cits.]” Time Financial Svcs. v. Hewitt, 139 Ga. App. 270, 272 (228 SE2d 176) (1976).

There was no showing made that there was any error in the calculations made by Goodgame for the treatment of Gillis or in the calibration of the machine. In fact, the evidence was that the calculations and calibrations were correct and that Gillis did get the dose prescribed. As to the business relationship, there was no showing that Goodgame controlled in any way the conduct of the doctors or that they in any way controlled his calculations and calibrations. The mere existence of a business interdependency does not create a joint venture. Davenport v. Oglethorpe Power Corp., 196 Ga. App. 632 (396 SE2d 580) (1990); Ga. Pacific Corp. v. First Nat. Bank &c., 147 Ga. App. 292 (248 SE2d 554) (1978); Time Financial Svcs. v. Hewitt, 139 Ga. App. at 272 (2), (3).

There was no error.

3. The second enumeration is that the court erred in its charge on causation.

(a) Although plaintiffs argue here that causation was not an issue at the trial, the trial record reflects that plaintiffs’ action was grounded in negligence, a charge was requested by plaintiffs on proximate cause, and the issues designated by plaintiffs to be decided by the jury included proximate cause. They will not be heard here to contend otherwise.

(b) The objection voiced below was that, in the proximate cause charge, “the Court said that the negligence must have caused the injury, without going further and saying that it could be caused in whole or in part, and we feel that was confusing. Also,. . . there was a statement made that a slight connection would not be sufficient-for proximate cause. We feel also that would exclude the possibility of the jury finding that Mr. Goodgame is only partially liable or a contributory cause. . . . The Court, in that charge, made a statement that the issue was whether the conduct is so remote as to be unfair for the Court to hold the defendant liable. . . . Fairness is not necessarily the legal standard for proximate cause.”

Plaintiffs requested the court to give the “standard pattern charges on negligence, proximate cause. . . .” Wé have reviewed the charge as given by the court as a whole and find that, although not verbatim the standard pattern charge, it covered all the required elements as requested by plaintiffs and was not in error as alleged.

(c) Several other alleged errors in the charge are presented here for the first time.

“A party may not complain of the giving or failure to give an instruction to the jury unless he objects to the instruction before the jury returns its verdict, stating distinctly his objection and the grounds of his objection. OCGA § 5-5-24 (a). Failure to except before verdict generally results in a waiver of any defects in the charge (cit.), the exception [being] a substantial error which was blatantly apparent and prejudicial, and which resulted in a gross miscarriage of justice. [Cits.]” (Punctuation omitted.) Hayden v. Sigari, 220 Ga. App. 6, 11 (6) (467 SE2d 590) (1996). We find no such error.

4. The charge given by the court on “preponderance of the evidence” was not error as contended in the third enumeration. The charge, as a whole, adequately explained the burden of proof and did not improperly shift it as argued by plaintiffs. See Rayburn v. Dempsey, 217 Ga. App. 255, 257 (2) (457 SE2d 220) (1995).

5. Plaintiffs contend that failure to give their requested charge on alteration of medical records based on OCGA § 16-10-94.1 was error and mandates a new trial.

There was no showing made of any improper alteration of medical records which would support the giving of such a charge.

6. Plaintiffs’ fifth enumeration complains of the court’s grant of summary judgment to Goodgame with regard to their assertion of a wrongful death claim.

(a) Summary judgment was not granted to Goodgame, however. The court did, by order of January 5, 1995, grant Goodgame’s motion to dismiss the wrongful death claim because it had been asserted by non-parties beyond the statute of limitation. Regardless of nomenclature, we consider the enumeration. See Hosley v. Davidson, 211 Ga. App. 529, 533 (3) (439 SE2d 742) (1993).

(b) By order of October 13, 1992, the motion of Gillis and Pope to be substituted as plaintiffs as co-administrators of Nancy Gillis’ estate was granted. On September 22, 1994, an amended complaint was filed by them in their individual capacities, alleging wrongful death. Goodgame’s motion to dismiss based on expiration of the statute of limitation was granted.

The substitution of Gillis and Pope as personal representatives of Gillis was done pursuant to OCGA § 9-11-25 (a) and involved Gillis’ surviving negligence claim against Goodgame. See OCGA §§ 9-2-40; 9-2-41. This does not result in addition of a new party or a new cause of action to the litigation. Chaffin v. Chaffin, 207 Ga. 36, 37 (59 SE2d 911) (1950).

The wrongful death claim, on the other hand, is a claim belonging to, in this case, the surviving children of the deceased for “the full value of the life of the decedent.” OCGA § 51-4-2. It is not addressed to the injuries suffered by the decedent prior to death, but to the injury suffered by the beneficiaries resulting from the death of the decedent. Lovett v. Garvin, 232 Ga. 747, 748 (208 SE2d 838) (1974); see Miles v. Ashland Chemical Co., 261 Ga. 726 (410 SE2d 290) (1991).

Therefore, the trial court properly concluded that the attempt to add these parties and this claim to the ongoing litigation was one which required an order of the court, which had not been granted, and was attempted beyond the statute of limitation. OCGA §§ 9-3-33; 9-11-19; 9-11-20; 9-11-21.

There was no error.

Judgment affirmed.

Pope, P. J., and Smith, J, concur.

Decided November 25, 1996.

Sutton & Associates, Berrien L. Sutton, Ronald W. Hallman, for appellants.

Beckmann & Pinson, Walter W. Ballew III, for appellee.

       See Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992), reversing Gillis v. Goodgame, 199 Ga. App. 413 (404 SE2d 815) (1991) (concluding that a radiological physicist is not one of the professions covered by the affidavit requirement of OCGA § 9-11-9.1). Nancy Gillis died before trial of this case, and her son and daughter were substituted for her as plaintiffs. Prior to trial, claims against Dr. Smith, his professional association, and the manufacturer of the machine used in the treatment were settled. Only the claim against Goodgame was tried.

       Suggested Pattern Jury Instructions, Vol. I: Civil Cases, 3rd ed., p. 231 et seq.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A96A1198.
    SIPPLE et al. v. ATWOOD et al.
    (478 SE2d 473)
   Andrews, Judge.

Sipple and Gibson, plaintiffs below, appeal from the trial court’s denial of their motion to compel responses to post-judgment discovery requests. The motion was denied based on Atwood’s assertion of his Fifth Amendment right against self-incrimination.

This case previously appeared hére and the facts of the underlying dispute are set out in Atwood v. Sipple, 182 Ga. App. 831 (357 SE2d 273) (1987). After entry of judgment in their favor, plaintiffs filed 29 interrogatories and a request for production of documents containing 11 categories of documents to be produced. In response, Atwood contended that any answer or production Would incriminate him with regard to seventeen of the twenty-nine interrogatories and eight of the eleven requests for production. By order of December 27, 1994, the trial court initially granted plaintiffs’ motion to compel. After reconsideration of that order, however, the court determined that, while the discovery requests were innocent on their face, the court would conduct an in camera hearing and require Atwood to show a real danger of incrimination from each request. After that hearing, the court entered the order here appealed, finding that Atwood’s proffered evidence established that a real danger of incrimination existed and he could not be compelled to respond.'

Although not raised by either party, it is incumbent upon this Court to consider pur jurisdiction of this mátter. Heritage Ins. Co. &c. v. Evans, 205 Ga. App. 98, 100 (421 SE2d 534) (1992); Wieland v. Wieland, 202 Ga. App. 222 (414 SE2d 247) (1991).

The notice of appeal states that It is from a “judgment of the Superior Court of Chatham County . -. . entered in the Clerk’s Office on December 1, 1995, which judgment denied the Plaintiffs’ Motion to Compel. . . .” The judgment in this case, however, was entered on June 17,1986, and was affirmed in Atwood, supra. The order entered December 4, 1995 (dated December 1, 1995) denied plaintiffs’ motion to compel and is not one of those listed in OCGA § 5-6-34 (a) (1) - (8) and thereby subject to direct appeal. Nor has a certificate of immediate review been entered pursuant to OCGA § 5-6-34 (b).

Decided November 25, 1996.

Bouhan, Williams & Levy, Walter C. Hartridge, Timothy H. Edwards, for appellants.

Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, Amy L. Copeland, for appellees.

In Cornelius v. Finley, 204 Ga. App. 299 (418 SE2d 815) (1992), “[tjhis court applied to post-judgment discovery the general rule that orders regarding discovery during the pendency of litigation must be appealed under the application procedures outlined in OCGA § 5-6-34 (b). [Id.] at 300-301.” Dial v. Bent Tree Nat. Bank, 215 Ga. App. 620, 621 (451 SE2d 533) (1994).

Here, there has not been an end to the post-judgment discovery process, only a finding that answers and responses to those 29 interrogatories and requests to produce could not be compelled.

This Court is without jurisdiction to consider this appeal.

Appeal dismissed.

Pope, P. J., and Smith, J., concur.

       Atwood asserted his rights under both the Georgia Constitution, Art. I, Sec. I, Par. XVI, and the United States Constitution, Amendment V.


author: Johnson, Judge.

text:
    A96A1324.
    MOTOROLA, INC. et al. v. WARD.
    (478 SE2d 465)
   Johnson, Judge.

In this products liability action, we granted the petitions for interlocutory appeals of Motorola, Inc. and Cartunes, Inc. from orders denying their motions for summary judgment. We reverse as to both defendants.

“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Citation omitted; emphasis in original.) Sunamerica Financial v. 260 Peachtree Street, Inc., 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992). Nevertheless, a plaintiff may not survive a defendant’s motion for summary judgment under OCGA § 9-11-56 if there is no evidence in the record “sufficient to create a genuine issue as to any essential element of plaintiff’s claim.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The defendant need not affirmatively disprove the plaintiff’s case, but must only point out the absence of evidence in the record to support at least one essential element of the claim. Once the defendant has done so, the plaintiff may not rest on the pleadings, but “must point to specific evidence giving rise to a triable issue.” Id. If the plaintiff’s claim is based upon an expert affidavit, that affidavit must contain some explanation of how the affiant reached his conclusion; a “mere conclusory allegation” is insufficient. City of Cordele v. Turton’s, Inc., 163 Ga. App. 327, 329 (293 SE2d 560) (1982).

Viewed in this light, the evidence shows that Richard T. Ward used a cellular telephone manufactured by Motorola and sold by Car-tunes for an average of approximately 25 hoúrs per month from June 1989 to November 1990. The phone generates an electromagnetic field. Ward is right-handed and mostly used the phone by holding it to his right ear. Ward was diagnosed in February 1991 with a malignant brain tumor above and forward of his right ear. This lawsuit is based on Ward’s claim that the phone’s electromagnetic field caused or exacerbated the cancer.

In response to Motorola’s and Cartunes’ motions for summary judgment, Ward produced the affidavits of David Perlmutter, M.D. and Andrew A. Marino, Ph.D. Neither is Ward’s treating physician; they are both researchers who study the biological effects of electromagnetic fields. Each affiant stated that he had studied Ward’s medical records and phone úse records and" had concluded, to a “reasonable degree” of certainty,, that Ward’s phone use caused or exacerbated his cancer.

1. Neither Perlmutter’s nor Marino’s affidavit explained a mechanism by which an electromagnetic field can cause cancer, set out any statistical correlation between electromagnetic field exposure, and cancer, or otherwise explained how the affiant reached his conclusion. On evidence such as this, a jury would have to speculate about whether a causal connection exists. Such “mere conclusory allegation[s]” are insufficient to create a genuine issue of material fact regarding the cause of Ward’s injury. See City of Cordele v. Turton’s, Inc., supra. When the plaintiff’s evidence merely asserts that the defendant’s conduct caused the plaintiff’s injury, but fails to explain how, the defendant is entitled to summary judgment. Houston v. Surrett, 222 Ga. App. 207, 209-211 (2) (474 SE2d 39) (1996). “[A]ny lesser requirement would invite speculation and conjecture.” Id. at 209.

Though súmmary judgment is required for this reason alone, there is also another, independent, reason why the trial court erred in denying summary judgment to Motorola and Cartunes:

2. This Court recently considered another case in which it was alleged that electromagnetic fields caused cancer. In Jordan v. Ga. Power Co., 219 Ga. App. 690 (466 SE2d 601) (1995), we upheld the grants of summary judgment to the defendant power companies on a trespass claim and of directed verdicts on nuisance and property damage claims. Id. at 694-695 (2), (3). The rationale for these holdings was, in relevant párt, that “[tjhe' scientific evidence regárding whether [electromagnetic fields] cause harm of any kind is inconclusive. ... In reaching this conclusion, we do not close the door on the possibility that science may advance to a point at which damage from [electromagnetic fields] is legally cognizable and [an] action may lie.” Id. at 694-695 (2). The Supreme Court'initially granted certiorari in Jordan, but subsequently Vacated the writ as improvidently granted, leaving the Court of Appeals holding intact. Case No. S96G0628, by order of November 22, 1996. Motorola and Cartunes are entitled to summary judgment because the affidavits providing the only support for Ward’s claim explain no advances in scientific knowledge since Jordan.

Decided November 25, 1996

King & Spalding, Nolan C. Leake, Michael R. Powers, Gray & Gilliland, David S. Currie, for appéllánts.

Dennis, Corry, Porter & Gray, William E. Gray II, Julia J. Yoffee, for appellee. ■ -

Judgment reversed.

Ruffin, J, concurs. McMurray, P. J., concurs in judgrhent only.

       Another division of the Jordan opinion, dealing with other calises of action, reversed a defense jury verdict that found electromagnetic fields’not to be the'cause of the plaintiff’s cancer. The basis for this holding was the trial court’s improperly allowing defense experts to testify that there was no consensus in the scientific, coihinunity that electromagnetic fields can cause cancer. Id. at 692-694 (1). Apparently the power companies either did not move for summary judgment or directed verdict on the claims submitted to the jury or else did not appeal the denial of any such motions.


text:
    A96A1421.
    HEATH v THE STATE.
    (478 SE2d 462)
   Andrews, Judge.

Scott Robert Heath, convicted of DUl to the extent that he,was less safe to drive, and speeding, appeals contending that the court improperly allowed certain testimony into evidence, refused to allow his expert to remain during a witness’ testimony, and refused to excuse a juror for cause. We affirm.

1. The first enumeration deals with arresting officer Clayton’s testimony concerning field sobriety tests knd their correlation with an amount of alcohol in the blood. Clayton, a police officer for 15 years most recently assigned to DeKalb County’s Strategic Traffic Accident Reduction team, stated that he administered the horizontal gaze nystagmus test to Heath. One of the evaluations done in the HGN test is to detect the onset of the jerking movement of the eye prior to a 45-degree angle which “indicates to us [police] . . . the sooner it starts prior to the 45 degrees indicates to us the amount of alcohol above and beyond a .10.”

The objection made was that “[t]hese tests have absolutely no correlation between a numerical standard, and I object to that answer. . . . He was indicating that by the percentage of onset of nystagmus, he was able to judge alcohol levels, . . . , and I think that’s objectionable, and I object to it.”

(a) “ It is well settled that while evidence may be subject to objection yet if no objection is made in the trial court, or if the only objection made is not good, no reversible error is committed by the trial court in allowing the evidence to be submitted. (Cits.)’ Salem v. State, 228 Ga. 186, 187-188 (3) (184 SE2d 650) (1971).” (Emphasis supplied.) Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991).

Here, unlike Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992) , no basis for the objection was voiced.

(b) Additionally, the same evidence was elicited by Heath on cross-examination of the officer and later testified to without objection from Heath during redirect examination. Therefore, even assuming a valid objection, any error in the admission of this evidence was harmless. Hooten v. State, 256 Ga. 31, 33 (1) (343 SE2d 481) (1986); McKibbons v. State, 216 Ga. App. 389, 392 (3) (455 SE2d 293) (1995).

2. Heath contends that it was error for the trial court to refuse to allow Taylor, his expert witness regarding field sobriety testing methods, to remain in the courtroom during the testimony of Officer Clayton.

The rule of sequestration had been invoked by Heath for the State’s witnesses and was then imposed by the court on all witnesses, as was his prerogative. OCGA § 24-9-61; O’Kelley v. State, 175 Ga. App. 503, 504-505 (1) (333 SE2d 838) (1985).

Heath’s argument has been determined adversely to him in Gray v. State, 222 Ga. App. 626, 631 (476 SE2d 12) (1996), where we held that “[i]n the broad discretion of the trial court, the court has the power, notwithstanding the statute, to permit or deny a witness to remain in the courtroom to assist counsel; a party may request but cannot demand that the court exercise its discretionary powers in regard to allowing a witness to remain in the courtroom. [Cits.] Even when an expert witness would be assisted by hearing the testimony of preceding witnesses . . . and could assist counsel in conducting the cross-examination, the grant or denial of such exemption lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. [Cits.]”

We find no such abuse of discretion here.

3. Finally, Heath contends the court erred in refusing to excuse juror Hodges for cause based on bias against Heath.

Juror Hodges responded affirmatively to the statutorily mandated question, OCGA § 15-12-164 (a) (2), whether she had a bias against the accused. The following colloquy then occurred:

“THE COURT: You have a bias? MS. HODGES: Yes. THE COURT: And what is that bias? MS. HODGES: I don’t think you should drink and drive. THE COURT: That’s not what I’m asking. You have a bias about drinking and driving. MS. HODGES: Right. THE COURT: But that’s not what I’m asking. . . . I’m asking do you have a bias or a prejudice for or against the accused, not the subject matter of drinking or driving. MS. HODGES: Well, since he’s been accused of drinking and driving, and I have a bias against drinking and driving, then I automatically have to —. THE COURT: Well, how do you feel about the presumption of innocence . . .? MS. HODGES: Well, I feel that you . . . are innocent until proven guilty. . . . THE COURT: Do you have any problem with the presumption of innocence that rests with Mr. Heath? MS. HODGES: No. THE COURT: Okay. Now, I’m going to ask you again. ... Do you have a bias or a prejudice for or against Mr. Heath? MS. HODGES: Yes. THE COURT: Are you perfectly impartial between the State and the accused? MS. HODGES: As far as my personal biases? THE COURT: No, not —. MS. HODGES: No. THE COURT: I think what I’m asking — are you a juror that believes that if the State has charged somebody with a crime that you could not listen fairly and impartially to the evidence and render a verdict that’s against the State? MS. HODGES: I am impartial as far as the presentation of evidence. Yes, I’m impartial. . . . THE COURT: Okay. What I’m trying to make clear — it’s not the offense that’s on trial. It’s Mr. Heath that’s on trial. MS. HODGES: Right. THE COURT: And you may have a bias about drinking. That’s fine. That’s a personal experience. But can you set aside your biases and prejudices and give the State and the defendant a fair trial? MS. HODGES: I can try my very best to do that.”

“ In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. The fact that a potential juror may have some doubt as to [her] impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause.’ (Citations and punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 483 (6) (455 SE2d 595) (1995). ‘The Supreme Court of the United States has held that “(v)oir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ (Cits.) This is so because the ‘determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.’ ” (Cit.)’ Arnold v. State, 236 Ga. 534, 538-539 (6) (224 SE2d 386) (1976). Accordingly, absent a manifest abuse of this discretion, we cannot require a new trial. Diaz v. State, 262 Ga. 750, 752 (2) (425 SE2d 869) (1993).” Wilson v. State, 220 Ga. App. 487, 488-489 (1) (469 SE2d 516) (1996).

Decided November 25, 1996

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael A. Penn, W. Cliff Howard, Assistant Solicitors, for appellee.

Although, certainly, Hodges expressed her disapproval of drinking and driving and some initial bias based on that being the charge lodged against Heath, she affirmed her belief in the presumption of innocence, her impartiality with regard to the presentation of evidence, and her sincere intent to do her very best to set aside her biases. There was no manifest abuse of discretion in the trial court’s actions. Chancey v. State, 256 Ga. 415, 425 (3) (B) (a) (349 SE2d 717) (1986); Lattany v. State, 193 Ga. App. 438 (388 SE2d 23) (1989).

Judgment affirmed.

Pope, P. J., and Smith, J., concur. -

       See generally Sieveking v. State, 220 Ga. App. 218 (1) (469 SE2d 235) (1996).


author: Blackburn, Judge.

text:
    A96A1528.
    TYSON v. McPHAIL PROPERTIES, INC.
    (478 SE2d 467)
   Blackburn, Judge.

This appeal concerns the enforceability of an option to purchase real property. The grantor of the option appeals the trial court’s grant of partial summary judgment to the grantee.

In April 1992, McPhai] Properties, Inc. (McPhail), acting through its representative Ray McPhail, entered into an option agreement, executed under seal, with Billy V. Tyson. Tyson granted McPhail an option to purchase approximately 2.58 acres of real property at a purchase price of approximately $73,000 per acre, plus interest, which option. McPhail could exercise between March 1, 1995, and June 1, 1995. Pursuant to the option agreement, McPhail was permitted to go upon the property for the purpose of performing any inspections or tests that it deemed necessary prior to exercising its option. Also, the option agreement provided that Tyson could sell the property to a third party provided that McPhail approved in writing the sales contract and all closing documents in connection with such sale. In the event of such a sale, Tyson and McPhail were to equally split the net proceeds.

Tyson refused to permit McPhail to perform tests on the property, and McPhail filed the underlying complaint seeking to enforce its option rights. Tyson contested the validity of the option agreement in his answer. In March 1995, after a hearing, the trial court held the option to be enforceable and entered an interlocutory order prohibiting Tyson from interfering with McPhail’s inspections or tests.

By letter, dated May 5, 1995, Tyson sought McPhail’s approval for the sale of the property to a third party with McPhail to receive one-half of the difference between the price contained within the option agreement and the contract sales price. This letter stated: “[t]he tender of this contract for approval is done as an offer of settlement and resolution of the issues pending between these parties [with regard to this litigation] and not as an admission or agreement of any kind of the validity of this [o]ption, which . . . Tyson specifically denies.” McPhail did not immediately respond. While the option agreement required McPhail’s written approval of the sales contract and all closing documents, which Tyson had not obtained, he closed the sale on the morning of May 31, 1995, without any input from McPhail. McPhail, however, notified Tyson of its intent to exercise its option by letter which Tyson acknowledges receiving on May 31, 1995, after the closing.

McPhail then filed an “amendment” to its complaint seeking specific performance of the option agreement and/or damages. The “amendment” outlined events which had occurred subsequent to the filing of the initial complaint, specifically Tyson’s breach of the option agreement. McPhail also filed a motion for summary judgment. Tyson then filed his own motion for judgment on the pleadings, asserting that McPhail’s “amendment” was improper. In November 1995, the trial court held a hearing on both motions. The trial court denied Tyson’s motion and granted McPhail partial summary judgment, holding that the option agreement was enforceable. This appeal ensued.

1. Tyson contends that the trial court erred in considering issues presented in McPhail’s “amended complaint.” His argument illustrates the difference between amended pleadings under OCGA § 9-11-15 (a) and supplemental pleadings under OCGA § 9-11-15 (d). “The distinction between supplemental pleadings and amended pleadings must be carefully observed. The former concerns matters which occurred since the date of the original pleading while the latter deals with matters ip existence at the time of the original pleading or which ought to be considered to relate back to that ti^ie.” Gregory, Ga. Civil Practice, § 3-9 (D), citing St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 154, n. 1 (377 SE2d 847)"(1989). Unlike an amended pleading that a party may unilaterally file at any time prior to the entry of a pre-trial order, a party does not have the right to unilaterally file supplemental pleadings. OCGA § 9-11-15 (d) provides that “[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading.”

All of the additional paragraphs included in McPhaiFs subsequent pleading address events that occurred after the original complaint was filed. Consequently, the rule of subsection (d) controls such that Tyson should have been given notice and an opportunity to contest the supplemental pleading prior to its filing.

Tyson was not harmed however by McPhaiFs failure to comply with OCGA § 9-11-15 (d). See Harrison v. Martin, 213 Ga. App. 337, 346 (444 SE2d 618) (1994) (“[a] party must show harm as well as error to prevail on appeal”). In Dept. of Agriculture v. Country Lad Foods, 226 Ga. 631, 634 (177 SE2d 38) (1970), the Supreme Court found that no handful error occurred under OCGA § 9-11-15 (d) when a supplemental pleading was filed without prior permission because the adverse party was later given an opportunity to appear before the trial court and argue against the supplement. “Under these circumstances . . . the filing and service of the pleading without prior notice to the defendant was not error harmful to the defendant.” Id. at 634 (1). Similarly, in the present matter, Tyson was allowed to appear before the trial court and contest the supplemental pleading. Like the defendant in Country Lad Poods, Tyson suffered no harm as a result of this error, and, accprdingly, this enumeration is without merit.

. 2. Tyson contends that the trial court improperly denied his request for additional time to conduct discovery necessary to respond to McPhaiFs motion for summary judgment. Under OCGA § 9-11-56 (f), a trial court has discretion to grant the party opposing summary judgment , a continuance, "and the trial court’s' decision will not be overturned unless that discretion was abused. Patterson v. Lanham, 182 Ga. App. 343, 344 (355 SE2d 738) (1987). No such evidence of abuse is present here. The record reflects that no formal discovery — interrogatories, requests to produce, deposition, notices — was pursued by Tyson in the three-mónth interval between his request and the hearing on the motion for s.unitmary judgment. Shmunes v. Gen. Motors Corp., 146 Ga.. App. 486 (1) (246 SE2d 486) (1978) (trial court properly entertained motion for summary judgment when the record did not evidence that the party requesting the continuance under OCGA § 9-11-56 (f) had conducted any discovery in the two-month interval between their request and the summary judgment hearing). Moreover, discovery in this case would have lapsed on September 16, 1995. Uniform Superior Court Rule 5.1. Thus, Tyson had two months remaining in the discovery period at the time McPhail moved for summary judgment. In light of the above, Tyson has failed to demonstrate that the trial court abused its discretion in denying his request.

3. Tyson contends that the trial court erred in its determination that the option agreement was supported by sufficient consideration. The option agreement provides: “For and in consideration of Ten Dollars ($10.00) in hand paid by McPhail to Tyson, the sufficiency of which is hereby acknowledged, and in further consideration of the covenants and agreements contained within this [Option] Agreement.” Particularly, Tyson argues that certain of the “covenants and agreements” serving as consideration are unenforceable due to vagueness or lack of mutuality. See Division 6. However, in light of Tyson’s acknowledgment that the monetary consideration was adequate, there is no need to evaluate the sufficiency of the other consideration. “A contract under seal raises a prima facie presumption of consideration, which is rebuttable. . . . However, any nominal consideration recited in sealed instruments is sufficient as a matter of law.” (Citations omitted.) Jolles v. Wittenberg, 148 Ga. App. 805, 807 (2) (253 SE2d 203) (1979).

4. Tyson argues that the trial court erred in determining that the acreage price contained within the option agreement is not unconscionably low. In its review of the record, the trial court found the evidence sufficient to establish that McPhail had not taken unconscionable advantage of Tyson, thereby shifting to Tyson the burden of establishing that a disputed question of fact remained as to the unconscionability of the option agreement. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The trial court entered summary judgment on this issue because Tyson offered no such evidence. Particularly, the trial court noted “[t]he terms of the contract standing alone [over $73,000 per acre] with no comparable figures or evidence of land values is not shocking or even seemingly unfair.”

Tyson does not dispute his failure to put evidence of the comparable land values into the record. However, he argues that Ray McPhail unwittingly furnished such evidence by testimony he offered at the hearing on the temporary restraining order. McPhail testified about an earlier transaction whereby he purchased a tract from Tyson for a much larger sum than that contained in the option agreement even though the parcels were in close proximity. This evidence fails to raise a question of fact on the issue of unconscionability because no evidence was offered as to the similarities of the two parcels, and also because Tyson was a party to the earlier transaction and was clearly aware that the nearby property sold for a much larger sum at the time he entered into the option agreement.

5. As outlined above, the option agreement contained a provision whereby Tyson could sell the property to a third party during the term of the option provided that McPhail had given written approval of the sales contract and closing documents. Tyson asserts that, with this provision, McPhail fraudulently induced him to sign the option agreement as McPhail never intended to approve such a sale. The trial court correctly entered summary judgment for McPhail on Tyson’s fraud claim.

Even if Tyson could demonstrate that McPhail never intended to approve any such sale at the time it agreed to this provision, Tyson could not prove all the other elements necessary to demonstrate fraud. Particularly, Tyson offered no evidence of how he was damaged by McPhail’s alleged misrepresentation. See Gary v. E. Frank Miller Constr. Co., 208 Ga. App. 73, 75 (430 SE2d 182) (1993) (damage is an element necessary to establish fraud). The only time Tyson sought McPhail’s approval for sale of the property to a third party was in May 1995 as part of an express “offer of settlement.” McPhail’s refusal of Tyson’s settlement offer is not proper evidence of how Tyson suffered damage as a result of McPhail’s fraud. “[P]ropositions made with a view to a compromise are not proper evidence.” OCGA § 24-3-37; see also Citadel Corp. v. Sun Chem. Corp., 212 Ga. App. 875 (443 SE2d 489) (1994) (settlement negotiations are not admissible evidence).

Moreover, even if this attempt to obtain McPhail’s approval were admissible, it would prove nothing. While the record reflects that McPhail was forwarded a copy of the sales contract, it does not reflect that McPhail received copies of any closing documents as required by the option agreement. As McPhail never received vital documentation required under the option agreement, it was unable to approve the sale, and its failure to do. so is not evidence of fraud.

6. In his final enumeration of error, Tyson points to four different provisions in the contract which he contends render it so vague or lacking in mutuality ás to be unenforceable. Because the option agreement purports to be the entire agreement of the parties, Tyson claims the unenforceability of any one of these provisions would render the entire contract void.

First, Tyson argues that the option agreement provides McPhail with such absolute discretion so as to render the contract unenforceable. See U. S. Fidelity &c. Co. v. Campbell Decorating Co., 102 Ga. App. 694 (117 SE2d 556) (1960) (clause permitting general contractor uncontrolled discretion to assess penalty on a subcontractor would be void). As discussed above, the option agreement provides McPhail with the power to veto Tyson’s sale of the property to a third party during the course of the option. This provision also states that if McPhail approves such a sale, it and Tyson “shall equally divide the net proceeds therefrom,” and the option agreement sets forth a complicated formula for calculating those “net proceeds.”

This situation is similar to that discussed in Newport Timber Corp. v. Floyd, 247 Ga. 535 (277 SE2d 646) (1981), which concerned a two-year timber cutting contract. Pursuant to that contract, extensions to the contract were permitted in the event weather conditions prevented timber from being cut. Under that contract, the timber harvester had the “uncontrolled and absolute right to determine when, as and. if weather conditions are such as to prevent practical timber harvesting operations.’’’ (Punctuation omitted; emphasis supplied.) Id. at 536. The lessor contended that the discretion provided the harvester regarding extensions was unfettered, thus rendering the contract unenforceable. On appeal, the Georgia Supreme Court held that it may be “fairly implied from [the provision] as a whole that the discretion given [the timber harvester] was to be exercised in a sound and honest manner and in good faith, as otherwise the references to weather conditions and practical timber harvesting would be rendered meaningless.” Id. ¿t 541. Similarly, in the present case, a review of the entire provision reflects that McPhail would not exercise its discretion in an arbitrary manner as it stood to share in the profits from a sale to a third party. Otherwise, as in Newport, the complicated profit-sharing formula outlined in the option agreement would be rendered meaningless.

Second, Tyson argues that, when read together, paragraphs 9 and 10 of the option agreement create obligations so uncertain as to be unenforceable. The property under option formerly served as a gas station and still contained underground storage tanks. Paragraphs 9 and 10 allot the risks and costs of inspecting and/or removing the storage tanks as well as any hazardous materials from the property. Under paragraph 9 titled “Substances,” McPhail may deduct a maximum amount of $25,000 from the purchase price for the costs it might incur in removing from the property “any hazardous or toxic material or substance . . . which may be prohibited, limited or regulated by any Federal, State, County, regional or local authority.” (Emphasis supplied.) Paragraph 10, titled “Storage Tanks,” provides that upon McPhail’s request, Tyson, acting at his own expense, will “remove . . . the underground storage tanks on the property, including any contaminated soils or materials.” (Emphasis supplied.) The term “contaminated soils and materials” used in paragraph 10 is undefined. Tyson asserts that his liability under these two provisions is ambiguous as it is unclear whether the cost of removing the tanks may be included in the $25,000 cap.

In interpreting a contract, an ambiguity will bar summary judgment only if the rules of contract construction fail to resolve it. One such rule provides that “[wjords generally bear their usual and common signification.” OCGA § 13-2-2 (2). Implicit in Tyson’s argument is the conclusion that the term “hazardous or toxic material or substance” used in paragraph 9 and the term “contaminated soils or materials” used in paragraph 10 refer to the same thing. However, using the word’s common meaning, a material that is “contaminated” is not necessarily hazardous or toxic as those two terms are defined within the option agreement. Another rule of construction requires contracts to be construed in a way that “gives meaning and effect to all the terms of the contract over that which nullifies and renders meaningless a part of the document.” Schafer Properties v. Tara State Bank, 220 Ga. App. 378, 381 (469 SE2d 743) (1996); see also Olympic Constr. v. Drywall Interiors, 180 Ga. App. 142, 143-144 (348 SE2d 688) (1986) (“all terms of a contract are to be given full effect insofar as is practicable”). Employing this rule, any ambiguity created by paragraphs 9 and 10 is resolved. The option agreement would not have used two different terms in two sequential paragraphs to describe the same thing. Further, to interpret the two terms to mean the same thing would render the financial terms of paragraph 10 meaningless. In performing the cleanup obligation addressed in paragraph 9, Tyson’s liability is limited to a $25,000 setoff in the purchase price. However, Tyson is to perform the removal required in paragraph 10 at his “sole expense.” The financial responsibility for performing the obligations of each paragraph would not have been differentiated in this manner if the two paragraphs addressed the same thing.

As his final argument, Tyson contends that paragraph 13 of the option agreement is too vague to be enforced. It provides “Tyson shall, prior to closing, remove without any damages or injuries to the Property or disturbing the Property all improvements, including all tires, automobiles, automobile parts [and] trailers from the property. All such items shall become the property of McPhail after closing.” Tyson argues that a strict reading of this paragraph would require him to remove everything from the lot including all buildings and fixtures and to then deliver them to McPhail after closing.

Decided November 25, 1996.

Donald J. Snell, for appellant.

Bray & Johnson, H. Michael Bray, for appellee.

In explaining this provision, Ray McPhail offered undisputed testimony that it was put in the option agreement at Tyson’s request. “Mr. Tyson had wanted the things that were on the property, and I had no objection to his having them, but I wanted him to either take them, or if he did not take them, then they . . . would be mine and I would get rid of them. . . . [T]he intent was to give him whatever he wanted in the way of improvements, provided he took them.”

When one party is aware of what the other party intended by a certain provision, he is estopped from later arguing a contrary interpretation. “[T]he meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning. OCGA § 13-2-4.” (Punctuation omitted.) Campos v. Williams, 217 Ga. App. 296, 299 (457 SE2d 243) (1995). Consequently, Tyson is estopped from complaining that this provision, which was included at his request, is ambiguous.

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J, concur.

       Undisputed evidence in the record reflects that Tyson can read and write; that he was represented by a real estate broker during this transaction; that it was Tyson’s broker who first contacted McPhail about purchasing the property not vice versa; that Tyson had the option agreement reviewed by an attorney prior to executing it; and .that McPhail made several changes and revisions to the option agreement at the request of Tyson’s attorney.

       Fraud sufficient to void a contract must be based on an intent to deceive that existed at the time the contract was executed. Mabry v. Pelton, 208 Ga. App. 891, 893 (432 SE2d 588) (1993). In this case, the property had previously served as a gas station and contained underground storage tanks. Much of the negotiation leading to the option agreement focused on how potential environmental problems associated with the tanks would be investigated and, if necessary, remedied. Due to McPhail’s uncertainty about the condition of the property, which is clearly reflected in the option agreement, it would be difficult for Tyson to demonstrate that McPhail had no intent to permit another party to purchase the property at the time the option agreement was executed.


text:
    A96A2044.
    CANN-HANSON v. THE STATE.
    (478 SE2d 460)
   Andrews, Judge.

Robert Cann-Hanson was tried before a jury and found guilty of speeding and driving a moving vehicle with an alcohol concentration in his blood in excess of .10 grams in violation of OCGA § 40-6-391 (a) (4). On appeal from the judgment entered on the guilty verdicts, he enumerates as error that: (1) the trial court erroneously denied his motion to suppress the results of the breath test showing an alcohol concentration in his blood of .16 grams, and (2) the evidence was insufficient to support the verdicts. We find no error and affirm both convictions.

1. Cann-Hanson moved to suppress the breath test results on the basis that the test was administered pursuant to an arrest made without probable cause to believe that he was driving under the influence of alcohol. Based on the evidence presented at the pre-trial suppression hearing and at trial, we find no error in the trial court’s denial of the motion to suppress.

The arresting officer testified that he followed the car CannHanson was driving on Interstate 85, matched its speed with his patrol car, and observed that Cann-Hanson was traveling 74 mph in a 55-mph zone. After stopping Cann-Hanson for speeding, the officer noticed his eyes were bloodshot and watery, and he had a faint odor of alcoholic beverage on his breath. After Cann-Hanson was unable to successfully complete three field sobriety tests, he was arrested and charged with driving under the influence of alcohol. The officer read Cann-Hanson his implied consent rights, he consented to a State-administered breath test, and the test results admitted at trial showed that he had a blood-alcohol concentration of .16 grams.

Contrary to Cann-Hanson’s contention, the results of the field sobriety tests constituted admissible evidence of probable cause to support the arrest, despite evidence that the arresting officer did not fully comply with every National Highway Traffic Safety Administration (NHTSA) guideline for administration of the tests. As to the nonscientific “walk and turn” and “leg lift” tests administered by the officer, evidence that the officer did not fully comply with NHTSA guidelines did not destroy the probative value of the tests and render them inadmissible for purposes of determining if there was probable cause for the DUI arrest, but affected only the weight and credibility of the behavioral observations made by the officer. State v. Pastorini, 222 Ga. App. 316, 319 (474 SE2d 122) (1996). As to the horizontal gaze nystagmus (HGN) test administered by the officer, which is considered a scientific procedure, despite conflicting testimony as to whether the test was administered in an acceptable manner under the NHTSA guidelines, there was evidence to support a conclusion that the test was validly administered so as to produce reliable results and was admissible in determining whether there was probable cause for the arrest. Id.; Hawkins v. State, 223 Ga. App. 34 (476 SE2d 803) (1996). The trial court properly considered evidence of the field sobriety tests in denying the motion to suppress.

Even in the absence of the field sobriety tests, the officer’s observation that Cann-Hanson had bloodshot, watery eyes and exuded an odor of alcohol was sufficient to show probable cause to arrest him for driving under the influence. Whitener v. State, 201 Ga. App. 309, 310 (410 SE2d 796) (1991); State v. Smith, 196 Ga. App. 876 (397 SE2d 304) (1990). Accordingly, the trial court did not err by denying the motion to suppress.

2. Cann-Hanson’s only argument as to the sufficiency of the evidence supporting the DUI conviction is that the evidence is insufficient without the breath test results, which he claims should have been suppressed. Since we determined the trial court properly denied the motion to suppress the breath test, there is no merit to this claim, and the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to support the conviction for driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (4).

Decided November 25, 1996.

Ulysses T. Ware, for appellant.

Ralph T. Bowden, Jr., Solicitor, Ashley M. Ferrell, W. Cliff Howard, Assistant Solicitors, for appellee.

The evidence was also sufficient under Jackson v. Virginia, supra, to support the speeding conviction. There is no merit to the contention that the arresting officer’s testimony as to the speed of the car was irreconcilable with the physical laws of nature and must be disregarded. To the contrary, the officer gave clear, credible testimony that he established Cann-Hanson’s speed at 74 mph by following him at that speed for about a quarter of a mile.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A96A1771.
    VITNER v. MILLER.
    (479 SE2d 1)
   Ruffin, Judge.

Annie Miller sued Saul Vitner, M.D. for professional malpractice in connection with two failed abortions performed on her by Vitner. Vitner appeals the denial of his motion to dismiss based on (1) the applicable statute of limitation and (2) the alleged insufficiency of the expert affidavit submitted with Miller’s complaint. For reasons which follow, we affirm in part and reverse in part.

1. Prior to a voluntary dismissal without prejudice and refiling, this case originally appeared before us in Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993). The facts are fully set forth in the prior opinion. In that case, Vitner appealed the denial of his motion for summary judgment based on the applicable statute of limitation. A full court majority opinion held that the complaint, filed on March 18, 1991, was untimely as to the first abortion performed on March 11, 1989 because “any injury which resulted from the first abortion occurred and physically manifested itself to [Miller] by March 14[, 1989].” Id. at 307. However, we further held that the complaint was timely as to the second abortion performed on March 15, 1989 because Miller’s injury from the second abortion “manifested itself on March 20, 1989, when [Miller] began to bleed and experience pain after the second abortion.” Id.

While Vitner contends that our original opinion is in error because subsequently discovered evidence shows Miller was aware of any injury from the second abortion prior to March 18, 1989, he has cited no evidence in the record supporting this assertion. “It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. [Cits.]” Saffar v. Chrysler First Bus. Credit Corp., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994). Furthermore, Vitner’s reliance on portions of Miller’s deposition, which was neither filed with the trial court in the present case nor included in the record on appeal, is mistaken. “In reviewing the trial court’s decision, we cannot consider the deposition, [portions of which are cited in Miller’s appellate brief], for we must take our evidence from the record. [Cits.]” Ostuni Bros. v. Fulton County Dept. of Public Works, 184 Ga. App. 406, 408 (2) (361 SE2d 668) (1987). Although Vitner filed a motion in the trial court to incorporate the file of the previously dismissed case, the record on appeal shows that this motion was not ruled upon by the trial court, qp.d the file from the previously dismissed case was not included in Vitner’s notice of appeal or otherwise forwarded to this Court.

Based on the record before us, we see no reason to deviate from our original opinion in Miller, supra. 'í'hus, we affirm the trial court’s denial of Vitner’s motion to dismiss as to the March 15, 1989 abortion, but reverse as to the March 11, 1989 abortion.

2. Vitner further contends the trial court erred in denying his motion to dismiss on the basis that the expert affidavit submjtted with Miller’s complaint was insufficient. According to Vitner, the affidavit contained only conclusions and did not state any negligent acts as a basis for the conclusions. We disagree.

OCGA § 9-11-9.1 merely imposes an initial pleading requirement on a plaintiff in a malpractice action. “Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1. [Git.]” Bowen v. Adams, 20.3 Ga. App. 123 (416 SE2d 102) (1992). Moreover, the Supreme Court has noted that “a Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. . . .” (Citation and punctuation omitted.) Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994).

In the present case, the expert affidavit states that Vitner performed two suction abortions on Miller, that he failed to follow generally accepted medical practices, that he failed to exercise the degree of care generally employed by medical professionals in his field, and that his failure to complete the two suction abortions constituted negligence. We find this affidavit sufficient to satisfy the pleading requirement of OCGA § 9-11-9.1. See Fidelity Enterprises v. Beltran, 214 Ga. App. 205 (2) (447 SE2d 150) (1994).

Decided November 12, 1996

Reconsideration denied November 26, 1996

Sullivan, Hall, Booth & Smith, Brynda S. Rodriguez, Edwin A. Capitan, for appellant.

Donald W. Johnson, for appellee.

Furthermore, there is little doubt that the statute’s purpose in avoiding frivolous lawsuits is not at issue in this case. See Gadd v. Wilson & Co., 262 Ga. 234 (416 SE2d 285) (1992). Not only has this case been pending for five years (including the previously filed action), but Miller’s case withstood prior motions for summary judgment, an interlocutory appeal, and a motion for rehearing prior to the refiling. “The purpose of the Code requirement is to ensure a substantial basis for actions against professionals. Clearly, such a basis existed in the present case. . . .” Hosp. Auth. of Fulton County v. McDaniel, 192 Ga. App. 398 (385 SE2d 8) (1989). Accordingly, we hold that the trial court did not err in denying Vitner’s motion to dismiss the complaint on this ground.

Judgment affirmed in part and reversed in part.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A2256.
    PARKS v. THE STATE.
    (479 SE2d 3)
   Johnson, Judge.

Ralph Devon Parks, Jr. pled guilty to DUI, then moved to withdraw the plea three days later. He appeals from the trial court’s denial of the motion. We reverse.

After Parks was charged with DUI in the City Court of Atlanta, he signed a power of attorney giving his lawyer the right to act for him in pleading not guilty, guilty, or nolo contendere; in signing waivers or plea agreements; in setting court appearance dates; in filing motions; and in handling other procedural matters. On June 19, 1995, in Parks’ absence, his lawyer entered a written guilty plea. The plea form contained an “Affidavit of Defendant” in which the defendant was to swear that he had been advised of the nature of the charge against him, and of his rights to confront witnesses against him, to a jury trial, and against self-incrimination. The form also stated that the plea was made freely and voluntarily. Though the form provided spaces for the signatures of both the defendant and his attorney, only Parks’ counsel signed. The court entered an adjudication of guilt and sentence that same day.

On June 22, the same lawyer moved to withdraw Parks’ plea. The trial court denied the motion, but failed to include any findings of fact or conclusions of law in its order. Through new appellate counsel, Parks contends the ruling was erroneous because there is no transcript or other evidence to show that the guilty plea was knowing, voluntary, and intelligent.

The state has the burden of proving that a guilty plea was entered freely and voluntarily, with an understanding of the nature of the charges and the consequences of the plea. Warner v. State, 214 Ga. App. 343, 344 (447 SE2d 692) (1994). A valid waiver of the federal rights against self-incrimination, to a jury trial, and to confront one’s accuser may not be presumed from a silent record. Boykin v. Alabama, 395 U. S. 238, 242-243 (89 SC 1709, 23 LE2d 274, 279-280) (1969). When there is no transcript of the plea hearing, however, the state may use extrinsic evidence to carry its burden. Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985). While a defendant has the right to withdraw a guilty plea until judgment is pronounced, afterward the grant or denial of a motion to withdraw a guilty plea is within the trial court’s discretion. OCGA § 17-7-93 (b); Beck v. State, 222 Ga. App. 168 (473 SE2d 263) (1996).

In this case, we have no transcript of.a hearing on the guilty plea or on the motion to withdraw it. The state contends the following evidence, extrinsic to the plea or motion hearings, shows that Parks’ plea was knowing, intelligent, and voluntary: (a) Parks signed the power of attorney; (b) Parks was represented by counsel; (c) The plea form signed by Parks’ counsel contained an explanation of the rights being waived, and an acknowledgment that the charges and possible punishments had been explained; (d) Parks had “numerous conversations” with his lawyer (this allegation is not substantiated by the record); (e) Parks has not enumerated as error that his counsel was ineffective; (f) Parks is a dentist, which implies that he is well-educated.

While this evidence may show that Parks authorized his attorney to enter a plea on his behalf, it does not show that Parks knew that by pleading guilty he was waiving the three specific federal rights enumerated in Boykin, supra, or that he understood the nature of the charges against him or the consequences of his plea. There is no evidence that Parks saw the plea form and áffidavit or was otherwise advised of the rights his attorney purported to waive. We must therefore hold that the trial court abused its discretion in denying Parks’ motion to withdraw his plea. ‘We do not hold as a matter of law that appellant’s guilty tplea was] involuntary, but rather that the trial court could not make that determination on this record.” Warner, supra at 344.

Decided November 26, 1996.

Thomas L. Burton, William C. Head, for appellant.

Louise T. Hornsby, Solicitor, Steven E. Rosenberg, Assistant Solicitor, for appellee.

Judgment reversed.

McMurray, P. J, concurs. Ruffin, J., concurs in judgment only.


author: Johnson, Judge. McMurray, Presiding Judge,

text:
    A96A0997.
    THE STATE v. BARTEL.
    (479 SE2d 4)
   Johnson, Judge.

Bartel was indicted for perjury pursuant to OCGA § 16-10-70 (a). The indictment stemmed from Bartel’s testimony before a Floyd County Grand Jury investigating alleged irregularities in the operations of the Floyd County Hospital Authority. Bartel made a motion to dismiss the indictment on the basis that the oath he gave prior to testifying before the grand jury was deficient. The trial court granted this motion to dismiss, holding that Bartel could not be prosecuted for perjury because the oath given him was not the oath prescribed by OCGA § 15-12-68. In essence, the trial court ruled that Bartel was not a sworn witness, subject' to penalties for perjury. The state appeals. For the reasons set out below, we reverse.

In its sole enumeration of error, the státe contends the trial court erred in holding that “a witness is not capable of being prosecuted for perjury for knowingly and willfully making a false statement before a grand jury in a noncriminal proceeding.” We agree. In order to facilitate discussion of this case’s legal issues, we note that the oath administered to Bartel was ás follows: “Do you swear that the testimony you will give to this Floyd County Special Purpose Grand Jury in its civil investigation of the Hospital Authority of Floyd County and its affiliate organizations will be the truth, the whole truth, and nothing but the truth, so help you God?” This oath informed him what was being investigated, and who was doing the investigation.

The law of Georgia does authorize a perjury prosecution against witnesses who swear falsely in testimony before local grand juries conducting civil investigations, so long as the grand jury is lawfully conducting an investigation authorized by state law To hold otherwise would be to fail to appreciate and give effect to the 1994 enactments of the legislature broadening the civil investigatory powers of grand juries, and to fail to limit the applicability of OCGA § 15-12-68 to witnesses testifying before grand juries during their consideration of criminal cases.

Grand juries are authorized by the 1994 amendments to the grand jury statutes to investigate any public authority of the county. See OCGA § 15-12-71 (b) (2). In connection with any such investigations, the grand jury is empowered, inter alia, “to compel the attendance of witnesses and to hear evidence.” (Emphasis supplied.) OCGA § 15-12-71 (c). The sanction of an oath or an affirmation equivalent thereto is necessary to the reception of any oral evidence. OCGA § 24-9-60. Except in specified cases from necessity, unsworn statements are not evidence in either criminal or civil cases. See Hilson v. State, 204 Ga. App. 200, 202 (1) (418 SE2d 784) (1992); see also Huiet v. Schwob Mfg. Co., 196 Ga. 855, 859 (2) (27 SE2d 743) (1943).

No set form for the oath to be taken by witnesses before grand juries conducting civil investigations is established in the Code. On its face, the oath prescribed by OCGA § 15-12-68 is only applicable to witnesses who testify before grand juries in criminal cases. Therefore, the strict compliance requirement announced in the decisions cited by Bartel and the trial court is limited to cases in which a witness testifying before a grand jury in a criminal case is not administered the oath prescribed by OCGA § 15-12-68.

Though the record in this case is not entirely clear regarding the authority under which the grand jury in the underlying matter was proceeding, it appears that there is no dispute that the civil investigation of the Floyd County Hospital Authority by the special purpose grand jury was authorized by law, and that the grand jury was authorized to compel Bartel to appear before it and present evidence relevant to the investigation. There is a dispute between the parties to this appeal as to whether this particular grand jury was operating under OCGA § 15-12-100 et seq., or § 15-12-71, or both, but our analysis applies whichever is the case. The record shows that in his response to Bartel’s motion to dismiss the indictment in the trial court, the District Attorney specifically asserted that the grand jury was empaneled under the provisions of OCGA § 15-12-100 et seq., and was proceeding under the authority of OCGA § 15-12-71 (b), (c), and (d). Bartel has not challenged that assertion either in the trial court or on appeal.

Because State v. Williams, 181 Ga. App. 204 (351 SE2d 727) (1986), and Inman v. State, 187 Ga. App. 652 (371 SE2d 230) (1988), cited by Bartel, as well as Vaughn v. State, 259 Ga. 325 (381 SE2d 30) (1989), appear to require a different result, further discussion is required. Bartel argues that the grand jury in this case was a special grand jury drawing its powers from OCGA § 15-12-100 (c) rather than from OCGA § 15-12-71 et seq. He then argues that because the language of OCGA § 15-12-100 (c), which grants civil special purpose grand juries the power to “compel evidence and subpoena witnesses . . .” dates to 1974, Inman precludes OCGA § 15-12-100 (c) from being considered as authorizing grand juries to swear witnesses in civil proceedings. The trial court agreed with this analysis, citing Williams and Vaughn, two post-1974 cases, in addition to Inman. One flaw in this analysis is that neither Inman, nor Williams, nor Vaughn addresses OCGA § 15-12-100 (c). Both Williams and Vaughn concern regular grand juries acting in criminal cases. Bartel has not cited, and we have not found, any authorities interpreting OCGA § 15-12-100 (c) or its predecessor, Ga. Code Ann. § 59-602 (a), or holding that this statute does not empower a grand jury to swear a witness in a civil investigation. As far as we can tell from the opinion in Inman, the grand jury with which it was concerned was a regular grand jury apparently drawing'its authority from OCGA § 15-12-75, since repealed, which contained no language regarding evidence and witnesses similar to that in OCGA § 15-12-100 (c). Furthermore, Inman, which concerned a grand jury purporting to be involved in a civil investigation, may well have missed the mark in that it relied upon Williams, which involved the oath of a witness before the grand jury in a criminal case, and Williams in turn relied upon Switzer v. State, 7 Ga. App. 7 (65 SE 1079) (1909), which also involved the oath administered to a witness before the grand jury in a criminal case. We have not discovered any case other than Inman which applied the Williams principle in a civil case, and even Inman concedes that the statutory oath need not be given verbatim so long as it is “at least substantially the one . . . prescribed by the statute.” Inman at 653.

Likewise, the trial court’s reliance upon Ashburn v. State, 15 Ga. 246 (1854), is misplaced. Ashburn was not only a criminal case, but the oath administered to grand jury witnesses in that case did not even require them to tell the truth. Rather, it required them merely to “testify concerning such matters as should be inquired of by the Grand Jury.” Id. at 247. But for punctuation and capitalization, the statutorily prescribed oath for witnesses before grand juries at the time Ashburn was decided is identical to that prescribed by OCGA § 15-12-68.

Inasmuch as it appears that the grand jury in the underlying matter was authorized by law to conduct this civil investigation, and to do so in part through the vehicle of taking oral testimony from live witnesses, it defies logic to suggest that the witnesses called by the grand jury to provide that oral evidence can lie with impunity. It further defies logic to say that the oath administered in connection with the taking of testimony in civil cases has to be identical to that set out in OCGA § 15-12-68 when there obviously is not and cannot be any “indictment or special presentment” or any individual charged with a particular criminal offense. If you follow the analysis urged by Bartel and accepted by the trial court, you are led to the conclusion that no one could ever be charged with perjury for lying to a grand jury in a civil investigation because no oath could ever be constructed in a civil matter so as to comply with OCGA § 15-12-68. Therefore, we conclude that OCGA § 15-12-68 simply is irrelevant to civil investigations conducted pursuant to OCGA § 15-12-71 (b) and/or OCGA § 15-12-100 et seq. We further conclude that no particular oath is prescribed for witnesses testifying before grand juries conducting civil investigations and, such being the case, the oath administered to Bartel here is sufficient, because it names the grand jury, specifies the type of investigation, names the subject entities being investigated and contains the almost universally accepted language regarding the promise and obligation to testify truthfully. The trial court’s dismissal of the indictment is reversed, and the case is remanded for further proceedings.

Decided November 27, 1996

Stephen F. Lanier, District Attorney, for appellant.

Wade C. Hoyt III, for appellee.

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. I believe the case sub judice is controlled by Inman v. State, 187 Ga. App. 652 (371 SE2d 230). I therefore would affirm the trial court’s order granting Bartel’s motion to dismiss the indictment.


text:
    A96A1153.
    McMILLIAN et al. v. ROGERS et al.
    (479 SE2d 7)
   Ruffin, Judge.

In November 1991, Laburn McMillian was injured in a fire while working at Hooten & Rogers Auto Body & Paint Shop, Inc. According to McMillian, the fire started when he tried to light a coal-burning stove after pouring paint into it. McMillian and his wife brought suit against “Warren Rogers, Sr. and Warren Rogers, Jr., d/b/a Hooten and Rogers” for damages. The McMillians subsequently amended their complaint to name as defendants only Warren Rogers, Sr. and Warren Rogers, Jr., individually (“the Rogers”).

The basis for suit arises out of a claimed employer/employee relationship between Laburn McMillian and the Rogers. According to the McMillians, the Rogers breached their duty of ordinary care to employee Laburn McMillian by not providing safe appliances in the workplace and by failing to warn McMillian of known dangers and defects incident to his employment. Among other defenses, the Rogers denied that they had any employer/employee relationship with McMillian.

The case proceeded to trial, and at the close of the McMillians’ evidence, the trial judge directed a verdict for the Rogers and entered judgment in their favor. The trial court denied the McMillians’ motion for new trial, and they now appeal. We affirm.

1. The McMillians first argue that a prior declaratory judgment action collaterally estopped the trial court from determining on their motion in limine, their motion for new trial, and the Rogers’ motion for directed verdict that no employer/employee relationship existed between Laburn McMillian and the Rogers. This argument fails on several grounds.

(a) First, although the McMillians claim that the trial court ruled against them on the employer/employee issue before, during and after the trial, nothing in the record supports that assertion.

The record does not reflect any motion in limine on the employer/ employee issue. At a hearing on the motion for new trial, the McMillians’ attorney asserted that the motion was submitted orally and denied. Statements of counsel, however, do not constitute evidence. Anthony v. State, 213 Ga. App. 303, 305 (2) (444 SE2d 393) (1994). There is nothing which shows that the trial court made any pretrial ruling on this issue. Furthermore, even assuming that a motion in limine was presented and denied, the sparse record does not show error. Absent any record of the pretrial proceedings, we must assume that the trial court’s ruling was supported by the evidence presented. Studard v. Dept. of Transp., 219 Ga. App. 643, 644 (1) (466 SE2d 236) (1995); Grisson v. State, 208 Ga. App. 679, 680 (431 SE2d 468) (1993).

The McMillians also assert that the trial court’s ruling on the employer/employee relationship was the “linchpin” for its decision to direct a verdict against them. The record, however, contains no transcript or briefs showing what arguments were raised in support of or in response to the Rogers’ motion. Although the parties’ appellate briefs indicate that several arguments may have been presented regarding the motion, we cannot determine whether the trial court based its ruling on any or all of these grounds. The only record that a directed verdict was entered in this case is the trial court’s written order, which simply states that a directed verdict was granted to the Rogers after the McMillians presented their evidence.

To claim error “during the course of the proceedings at trial, [q] litigant must include, at the barest minimum, a transcript of that portion of the proceedings in which the alleged error occurred; or, in the alternative, a sufficiently detailed stipulation approved by an appropriate judge of the court in which the proceedings were conducted.” (Emphasis in original.) Tadlock v. Duncan,, 215 Ga. App. 441, 443 (1) (451 SE2d 80) (1994). Otherwise, we cannot determine what occurred in the proceedings below. Absent a record of the arguments made, the facts presented in support, and the basis for the trial court’s ruling, we must assume that the evidence supported the ruling. Studard, supra at 644; see also City of Atlanta v. Starke, 192 Ga. App. 267, 268 (1) (c) (384 SE2d 419) (1989).

The record similarly does not reflect that the employer/employee issue resulted in an adverse ruling on the motion for new trial. Neither the transcript from the motion for new trial hearing nor the written order denying the motion reveals the basis for the trial court’s ruling. Nothing indicates that an adverse decision on the employer/employee issue precluded a new trial in this case.

(b) Second, the McMillians state in their brief that they preserved the collateral estoppel argument for appeal through their pretrial motion in limine and their motion for new trial. As discussed above, the record reveals no motion in limine or corresponding ruling by the trial court. Therefore, we cannot determine that the McMil-' lians raised the collateral estoppel issue in such a motion.

Furthermore, an issue for appeal may not be raised for the first time through a new trial motion. “ ‘Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.’ ” Cohen v. Lowe Aviation Co., 221 Ga. App. 259, 261 (2) (470 SE2d 813) (1996) (quoting Minton v. State, 205 Ga. App. 430, 432 (3) (422 SE2d 300) (1992)). The record does not show that the McMillians raised this issue for appeal in a timely manner.

(c) Finally, to claim estoppel by prior judgment, a litigant must “introduce those portions of the prior proceeding, duly certified, which are necessary to prove the [claim]. [Cit.]” Roberts v. Porter, Davis &c., 193 Ga. App. 898, 901 (2) (389 SE2d 361) (1989). The McMillians did not submit copies of the declaratory judgment to the court until after the directed verdict, when they moved for new trial. In essence, the McMillians sought, through their motion for new trial, to add new evidence into the record in support of their collateral estoppel claim.

Although Georgia law permits motions for new trial based upon evidence not admitted in the first trial, that evidence must be newly discovered. OCGA § 5-5-23; see also Collins v. Kiah, 218 Ga. App. 484, 485 (2) (462 SE2d 158) (1995). Evidence relating to the prior declaratory judgment action was not “newly discovered” after the directed verdict. On the contrary, the McMillians were parties in the declaratory judgment proceedings, which concluded before the trial in this case began. The McMillians simply failed to introduce evidence of the declaratory judgment action at trial. Accordingly, collateral estoppel did not bar a ruling on the alleged employer/employee relationship between Laburn McMillian and the Rogers.

2. In their second enumeration, the McMillians claim (on grounds other than collateral estoppel) that the trial court improperly rejected their motion in limine to preclude the Rogers from denying any employer/employee relationship with Laburn McMillian. Once again, however, they failed to preserve this enumeration.

Nothing in the record reflects that this motion in limine was filed, argued, or ruled upon by the trial court. Becaúse we do not know what transpired below, we must assume that any ruling by the trial court was supported by the evidence presented. Studard, supra at 644; Grisson, supra at 680. As discussed in Division 1 (b), an error may not be raised for the first time in a motion for new trial. Cohen, supra at 261. This enumeration presents nothing for review.

3. In their final enumeration, the McMillians argue that the trial court improperly directed a verdict for the Rogers on the ground that assumption of the risk barred their claim.

The McMillians did not properly presérve this enumeration. In their brief, the McMillians assert that they preserved the claim through their motion for new trial. Raising an argument at the new trial stage, however, does not preserve the error. Cohen, supra at 261. In addition, as discussed in Division 1, the record provides no transcript of the directed verdict proceedings or the arguments made. The McMillians have presented no record on which we can review the directed verdict ruling. Tadlock, supra at 443. Accordingly, we must assume the evidence was sufficient to support the trial court’s ruling. Starke, supra at 268.

Furthermore, even if the McMillians had properly preserved this enumeration, it must fail. The McMillians argue in their brief only that Laburn McMillian did not assume the risk of injury under OCGA § 34-7-23, which relates to assumption of the risk by employees. The McMillians, however, have pointed to no record evidence establishing an employer/employee relationship between the Rogers and Mr. McMillian. In short, they have cited no evidence or authority to support this claim of error.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided December 2, 1996.

Ballard & Ballard, Scott L. Ballard, for appellants.

Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, for appellees.


text:
    A96A1275.
    BUTLER et al. v. GWINNETT COUNTY.
    (479 SE2d 11)
   Ruffin, Judge.

In 1993, Gwinnett County (“the County”) condemned portions of appellants’ property for use in constructing an access lane to the Ronald Reagan Parkway. During the condemnation proceedings, appellants entered into consent decrees with the County regarding the amount they should be compensated for the taking. Pursuant to these decrees, the County paid each appellant a certain sum over and above the value of his or her condemned property, as appraised by the County.

In 1995, appellants filed this suit for damages, claiming primarily that negligent construction of the access lane has damaged their remaining property. Their complaint presents seven theories of recovery: negligent construction, nuisance, inverse condemnation, trespass, negligent misrepresentation, fraudulent inducement, and breach of contract. The County subsequently moved for summary judgment on each claim, arguing that appellants were compensated fully in the condemnation proceedings for damages flowing from the access lane construction. The trial court granted the County’s motion and dismissed appellants’ complaint. This appeal followed, and for reasons set forth below, we affirm.

In their sole enumeration of error, appellants argue that the trial court erred in granting summary judgment to the County. Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id. Applying this standard, we conclude that summary judgment was proper on each of appellants’ claims.

1. Appellants allege that negligent construction of the access lane damaged their remaining property by causing noise, pollution, erosion and other problems. Appellants further claim that this damage constitutes an “inverse condemnation,” or a taking for which they have not been compensated.

When part of a tract of land is condemned, consequential damages to the remaining property must be recovered in the condemnation proceeding, which presents the “exclusive avenue for litigating the issues of just and adequate compensation. [Cits.]” Dept. of Transp. v. Samuels, 185 Ga. App. 871, 872 (1) (366 SE2d 181) (1988); see also Wright v. MARTA, 248 Ga. 372, 374-375 (283 SE2d 466) (1981). Consequential damages are those that “naturally and proximately arise to the remainder of the owner’s property from the taking of the [condémned tract] and the devoting of it to the purposes for which it is condemned, including its proper maintenance and operation.” McArthur v. State Hwy. Dept., 85 Ga. App. 500 (69 SE2d 781) (1952).

Seeking to avoid preclusion due to the prior condemnation proceedings, appellants couch their damage claims in terms of “negligent or improper construction.” As noted above, a condemnation proceeding “is conclusive as to all damages whether foreseen or not resulting from proper construction [of the improvement].” (Emphasis supplied.) Fulton County v. Woodside, 223 Ga. 316, 319 (1) (a) (155 SE2d 404) (1967). Damages caused by negligent or improper construction on condemned property, however, are recoverable in a suit separate from the condemnation proceeding. Ga. Power Co. v. Jones, 122 Ga. App. 614, 616 (2) (178 SE2d 265) (1970); McArthur, supra.

Reviewing the evidence in the record, we conclude that the damages sought by appellants in this suit were not caused by “negligent construction.” Discussing the claimed negligence, appellants’ expert testified as follows: “I’m not complaining or I’m not really talking about negligence in construction because as far as I know the construction was done exactly as it was planned and designed, so I’m not talking about the construction by the contractor, but the design for construction by whoméver did that design. . . . Whoever designed this was in my opinion grossly negligent.” As defined by their own expert, therefore, appellants’ claimed damages have resulted not from improper construction on the condemned property, but from the overall manner in which the County chose to design and use the improvement.

Appellants argue that because the record presents evidence that the access road was negligently designed, a jury could find negligent or improper construction in this case. Yet, they point to no authority equating such design complaints with the type of negligent construction authorizing an additional award of damages after a condemnation proceeding. From a policy perspective, allowing this claim to proceed will permit unending inverse condemnation and damage claims from property owners who decide, after construction, that the improvement’s design impacts them in a way they did not anticipate. As noted by the trial court, “if we follow this logic . . . every time we get a higher traffic count, everybody is going to come in here with a new inverse condemnation action . . . and the condemnation actions will never be brought to an end because somebody can say ‘Wait a minute. They put 25,000 cars a day instead of [18,000], I’m going to have an expert to say that’s beyond the magnitude and design of the road. It’s caused me consequential damage.’ And we’re going to be constantly renewing cases where people have already taken settlements and gone home.”

Appellants’ claimed damages flow naturally and proximately from the County’s decision to condemn this property and devote it to building and operating a highway access lane. Regardless of whether appellants anticipated these consequential damages, they were recoverable in the condemnation proceedings. See Woodside, supra. In fact, as evidenced by the amount of the condemnation award, which was greater than the County’s appraised value for the condemned tracts, appellants did recover for such additional, consequential damages to their remaining property. No “negligent construction” or taking without compensation has been established here. The trial court properly granted the County summary judgment on appellants’ negligent construction and inverse condemnation claims.

2. Appellants also contend that the pollution, noise, erosion and other results of the purported “negligent construction” act as a continuing nuisance and trespass on their remaining property. A county generally “is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. A county may be liable for damages, however, if it creates a condition on private property, such as a nuisance, that amounts to inverse condemnation or a taking without compensation. Duffield v. DeKalb County, 242 Ga. 432, 433 (249 SE2d 235) (1978).

As we concluded in Division 1, the alleged “negligent construction” and resulting conditions on appellants’ remaining property do not constitute an inverse condemnation. Rather, appellants were compensated in the initial condemnation proceedings for such consequential damages, which flow from Gwinnett County’s use of the condemned tracts. Appellants may not now seek additional - recovery based upon nuisance or trespass.

3. Appellants further claim that the County negligently misrepresented facts about the condemnation and fraudulently induced them to settle the original condemnation actions. Yet, they have cited no authority permitting suit against a county for negligent misrepresentation or fraudulent inducement. Accordingly, the trial court properly granted summary judgment on these claims. OCGA § 36-1-4.

Decided December 2, 1996

5. Robert Hahn, Jr., for appellants.

Michael V. Stephens II, Caryl Sumner, Karen G. Thomas, for appellee.

4. Appellants’ final cause of action rests in breach of contract. Although their enumeration of error asserts that the trial court misapplied relevant breach of contract principles, appellants’ briefs present no argument or citation of authority relating to this theory. Consequently, this claim of error is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       The lower court’s written order on summary judgment does not specifically discuss the breach of contract allegation. The order, however, disposes of all of appellants’ claims, including the breach of contract argument.