author: Andrews, Judge. Beasley, Chief Judge,

text:
    A94A2490.
    ST. MARY’S HOSPITAL OF ATHENS, INC. v. COHEN.
    (456 SE2d 79)
   Andrews, Judge.

St. Mary’s Hospital of Athens, Inc. (Hospital) appeals from the judgment entered on the jury’s verdict after the trial necessitated by this court’s interlocutory review of the denial of the hospital’s motion for summary judgment. St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121 (421 SE2d 731) (1992). There, this court determined that the Hospital was entitled to summary judgment on all the counterclaims of Dr. Cohen and his corporation, Radiology Professional Corporation (RPC), except for Dr. Cohen’s “cause of action in tort against St. Mary’s for failure to follow existing [medical staff] bylaws with regard to termination of his staff privileges [based on OCGA § 51-1-6].” Id. at 127 (3c).

The basic facts of the relationship between the Hospital, RPC, and Dr. Cohen are set forth in that opinion, as well as the procedural history of the litigation, and will be supplemented only as needed. The jury returned a verdict for Dr. Cohen for $11,700,000 in compensatory damages and $1,000,000 in punitive damages.

1. “ ‘(O)n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment’ [cit.]; likewise, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. [Cit.] The standard for review of a directed verdict and a judgment n.o.v. are the same: ‘Where there is no conflict in the evidence as to any . material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ [Cit.]” Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991); Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983).

As held in St. Mary’s, supra, “[s]ince the issue is existence of a legal duty to follow procedures established pursuant to state law, not the presence of state action, we see no reason to distinguish between public and private hospitals in this context. Both are required to establish staff bylaws; therefore, both should be required to follow those bylaws. Just as a physician who receives privileges at a hospital ‘(does) so with the understanding that his appointment (is) subject to its bylaws,’ [cit.], a hospital, whether public or private, also should be subject to the bylaws it enacts. Accordingly, we hold that Cohen may assert a cause of action in tort against St. Mary’s for failure to follow existing bylaws with regard to termination of his staff privileges. . . . We agree with St. Mary’s that it has the authority to establish exclusive relationships with physicians in a given specialty or area of practice and that such authority may include the concomitant right to termínate staff privileges as necessary to maintain this exclusivity. Nonetheless, this termination right may not be exercised in a manner inconsistent with the [medical] staff bylaws. Consequently, to ensure its right to terminate staff privileges to maintain exclusive relationships, hospitals must so provide either in the bylaws or in a contract with the individual physician (and not just in the contracts with the physician’s professional corporation). In this case neither of these steps was followed. However, there is a fact question whether Cohen acquiesced in the limitations St. Mary’s placed upon the renewal of his privileges so as to waive his right to insist on compliance with the procedural requirements in the bylaws.” (Latter emphasis supplied.) St. Mary’s, supra at 127-128.

As to the issue of acquiescence and waiver the material facts are not in dispute.

By letter dated December 31,1981, Dr. Cohen was reappointed to the medical staff. That reappointment letter was virtually identical to the reappointment letters he had received since 1969, with one exception. Added to the 1981 letter was the following: “In the event your agreement with Radiology Professional Corporation or the agreement between Radiology Professional Corporation and the hospital terminates, your appointment will terminate at the same date; otherwise, your appointment expires on December 31, 1983.” Dr. Cohen’s reappointment letters of 1983, 1985, and 1987 contained the same limitation. Dr. Cohen also received a letter of April 5, 1989 granting additional privileges, but also containing the same limitation.

In Dr. Cohen’s applications for reappointment in 1983, 1985, and 1987 no modifications of prior privileges were sought. Finally, by letter dated April 12, 1989, after the present lawsuit was initiated, Dr. Cohen notified the Hospital as follows: “The purpose of this letter is to respond to the second paragraph of your letter [of April 5, 1989] which purports to condition my clinical privileges on the continuing existence of an ‘agreement’ between Radiology Professional Corporation (RPC) and the Hospital. This is not the first time in recent years that you have referred to such a conditional grant of privileges. Until the Hospital filed suit recently to remove the RPC physicians from the Hospital, it was not necessary to respond to this attempt to limit our clinical privileges. Now, however, I believe I must respond formally to your suggestion that my clinical privileges are somehow tied to the old contract dated April 1, 1971.” After arguing that there had been no contract since 1973, Dr. Cohen closed his letter as follows: “I simply did not want to continue to be silent on this matter now that the Hospital is attempting to remove the RPC physicians from the Hospital.” (Emphasis supplied.)

“Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” OCGA § 24-3-36. And more specifically, “[i]n the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them.” (Emphasis supplied.) OCGA § 24-4-23. “[M]ere silence is not sufficient to establish a waiver unless there is an obligation to speak. [Cit.]” Jordan v. Flynt, 240 Ga. 359, 364 (3) (b), 366 (240 SE2d 858) (1977). “In cases of silence there must be not only the right but the duty to speak before failure to do so [becomes] an estoppel. [Cit.]” Tybrisa Co. v. Tybeeland, 220 Ga. 442, 445 (139 SE2d 302) (1964). The above cited statutes impose such a duty and obligation.

“While normally the question of waiver is a matter for the jury, where, as here, the facts and circumstances essential to the waiver issue are clearly established waiver becomes a question of law. [Cits.]” Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370) (1991).

If he chose not to accept same, Dr. Cohen had an obligation and duty to respond to the imposition of the limitations on his privileges. Instead, he silently exercised those staff privileges for almost eight years. Accordingly, as a matter of law, he waived his right to insist on compliance with the procedural requirements of the bylaws and the trial court erred in failing to direct a verdict for the hospital.

2. This conclusion makes consideration of the remaining 21 enumerations of error unnecessary.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Johnson and Smith, JJ., concur. Beasley, C. J., Pope, P. J., Blackburn and Ruffin, JJ., dissent.

Beasley, Chief Judge,

dissenting.

I respectfully dissent because the record does not establish, as a matter of law, that Dr. Cohen waived his right to insist on compliance with the procedural requirements in the bylaws before termination of staff privileges. That was the question of fact which was returned to the trial court for jury resolution because it was not resolved by the summary judgment record. St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121, 127-128 (3) (c) (421 SE2d 731) (1992).

His right arose from the hospital’s legal duty to follow existing bylaws, and his cause of action to obtain relief from a violation of that duty was founded on OCGA § 51-1-6. It provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” As stated in the previous opinion of this Court, “hospitals cannot arbitrarily or capriciously deprive physicians of their privileges . . . [nor] abridge or refuse to follow [their] existing bylaws concerning staff privileges.” Id. at 127.

The jury had before it the letters referenced in the majority opinion as well as all of the facts and circumstances surrounding the long staff privilege relationship of the hospital with the physician, which began in 1968, and with his professional corporation, after it was incorporated in 1971 and he became its employee. The written contract with the corporation was never revised in writing as provided therein and was abandoned by the parties in 1973. The radiological services which were provided through the exercise of Dr. Cohen’s staff privileges were terminated in the summer of 1990.

The hospital has appealed the trial court’s denial of its motion for directed verdict and its subsequent motion for new trial, both of which are bottomed on the argument that Dr. Cohen waived the bylaws’ procedural requirements. On appeal, the question is whether there is “any evidence” to support the jury verdict. Professional Consulting v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). Specifically in this instance, we must decide whether there is any evidence to support the finding that Dr. Cohen did not waive the protection of the procedure established by the bylaws for the termination of staff privileges. “ ‘The grant or denial of a motion for new trial... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is “any evidence” to authorize it.’ ” Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 859 (3) (360 SE2d 418) (1987). The question is not whether there is evidence to support an opposite finding but rather whether it was demanded. Waiver was a defense; the absence of waiver was not an element of the tort, incumbent on plaintiff Cohen to prove.

The letters which Dr. Cohen received did not necessarily require a contemporary objection which, if not registered, worked an acquiescence or a forfeiture of the right to insist on the very specific and orderly step-by-step procedure set up for termination. As summarized by appellee, there was evidence that the letters adding a condition (1) were ultra vires because the board’s credentialing authority was limited under the bylaws to acting upon the recommendation of the medical staff credentialing committees; (2) did not constitute the “decision and notice” required by the medical staff bylaws, as recognized at the time of receipt by Dr. Cohen; (3) were inconsistent with the absence of “special conditions” in the official biannual reapplication, committees’ recommendations, and board action forms related to Dr. Cohen’s staff privileges.

Dr. Cohen explained to the jury why he did not respond in writing to the letters: (1) he had received unconditional decision and notice letters for 12 years; (2) he never received the “special notice” of “adverse recommendation” or “adverse action” required by the staff bylaws; (3) he knew Mr. Fechtel, the administrator, lacked authority to condition his staff privileges, under the bylaws; (4) no written acknowledgment was ever required, despite such requests of other physicians who were asked to waive their staff bylaws rights; (5) the conditioning of staff privileges to an “agreement” was meaningless since there was no “agreement”; and (6) hospital agents never suggested any right to administratively terminate his medical staff privileges despite numerous formal contract negotiation sessions. There was no mention during the sessions that staff privileges were tied to contractual relations, until 1988. Thus, he did not regard the administrator’s letters as affecting his staff privileges. With all of this, and considering the entire history of the dealings between the hospital and Dr. Cohen and his professional corporation, the jury found that a waiver had not been shown; the preponderance of the evidence was otherwise.

Decided March 17, 1995

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, J. Ralph Beaird, Wayne R. Allen, for appellant.

J. Hue Henry, John F. Lyndon, for appellee.

I cannot conclude from the voluminous trial transcript that the trial court erred in refusing to direct the jury’s verdict on this issue or to depart from the jury’s verdict after it was returned.

I am authorized to state that Presiding Judge Pope, Judge Blackburn and Judge Ruffin join in this dissent.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2533.
    WALKER v. CRANE.
    (455 SE2d 855)
   Pope, Presiding Judge.

Defendant Hazel Walker appeals from the Superior Court of Forsyth County’s grant of plaintiff Ruby Crane’s motion for an immediate writ of possession, and from the denial of Walker’s motion for summary judgment regarding the dispossessory action Crane had filed against her.

In 1988 Walker moved onto some property that was across the road from her daughter and son-in-law (Kathy and Ricky Crane). The property was owned by Ricky. Walker purchased a modular home and placed it on the property. Additionally, she spent approximately $15,000 on improvements to the property. In 1991, Walker became involved in a dispute with Kathy and Ricky, and on September 21, 1991, Kathy commenced a dispossessory action against her mother in the magistrate court. That action was dismissed for lack of jurisdiction.

On September 23, 1991, Ricky and Kathy separated in anticipation of divorce. Ricky subsequently conveyed title to the property to his mother, Crane. On March 1, 1993, Crane filed a dispossessory action against Walker. Walker answered, and on March 30, 1993, filed a separate equitable action in the Forsyth County Superior Court against Crane, Kathy and Ricky, seeking to establish a purported life estate in the property. On May 3, 1993, the magistrate court granted possession of the property to Crane, and, pursuant to OCGA § 44-7-56, ordered Walker to pay $200 per month into the registry of the court if she wished to appeal the decision. Walker filed her appeal with the superior court on June 1, 1993, and approximately one month later moved for summary judgment, contending that no dispossessory action could lie because no landlord/tenant relationship ever existed; no demand for possession was ever made; and the matter was res judicata because of the dismissal of the previous dispossessory action filed by Kathy. A hearing on Walker’s motion for summary judgment was set for September 2, 1993. Approximately ten days before the hearing Crane filed several motions, including a motion for a supersedeas bond and a motion for an immediate writ of possession. After the hearing, the superior court, by order dated September 14, 1993, denied Walker’s motion for summary judgment. The court also granted Crane’s motions for supersedeas bond, pursuant to OCGA § 5-3-22 (b), in the amount of $200 per month.

On March 25, 1994, Crane moved for an immediate writ of possession (writ) on the ground that Walker had failed to comply with the terms of the court ordered supersedeas bond. On March 31, 1994, Walker filed a pauper’s affidavit. The superior court heard oral argument on the writ. On the morning of the hearing Crane served Walker with a traverse to the pauper’s affidavit. Although the traverse was not in the form of an affidavit, see OCGA § 9-15-2 (a) (2), the court heard argument regarding the traverse pursuant to OCGA § 9-15-2 (b). By order dated April 19, 1994, the superior court found that the pauper’s affidavit was filed untimely and that Walker had failed to carry her burden of proving poverty. The court then granted the writ and ordered Walker to vacate the property by April 29, 1994.

1. In her first and second enumerations of error, Walker contends that the superior court lacked the authority to require her to pay any amount into the court as a supersedeas bond. Specifically, Walker argues that OCGA § 5-3-22 (b) is not applicable to appeals relating to dispossessory actions. We find no support for this argument. OCGA § 5-3-22 (b) is broad in scope. It clearly states “that the superior court upon motion may at any time require that supersedeas bond with good security be given in such amount as the court may deem necessary unless the appellant files with the court an affidavit stating that because of his indigence he is unable to give bond.” (Emphasis supplied.) In this case it is undisputed that Crane filed a motion requesting a supersedeas bond. It also is undisputed that at the time the court granted said motion, Walker had not yet filed any affidavit of indigence with the court. Therefore, the superior court clearly had the authority to require Walker to provide such a bond. Additionally, under OCGA § 5-3-22 (b) the superior court clearly had the authority to set the amount of the bond as it deemed necessary.

2. Walker’s third, fourth, fifth and sixth enumerations of error all relate to the pauper’s affidavit she filed on March 31,1994, and to the superior court’s inquiry into the timeliness, truth and validity of said affidavit. As to the timeliness of the affidavit, we find no authority which mandates that such an affidavit must be filed prior to the filing of a motion for immediate writ of possession in order to be considered timely. In the absence of such authority, we conclude that Walker’s pauper’s affidavit should have been considered by the superior court even though it was filed after the writ. Having reached this conclusion, we note that in this case the superior court did in fact consider the pauper’s affidavit before granting the writ.

Under OCGA § 9-15-2 (b) the superior court clearly had the authority to inquire into the validity and truthfulness of Walker’s pauper’s affidavit on its own even though no traverse affidavit was filed by Crane. However, under the above Code section any inquiry on the court’s part in the absence of a traverse affidavit should have taken place during a separate hearing on the matter. After such a hearing, if the court determined that the supersedeas bond could have been paid by Walker, it should have entered an order directing that said bond be paid within a specified time before granting the writ. Even if we conclude that the hearing on the writ also constituted a separate hearing as to the validity of the pauper’s affidavit, after said hearing the superior court did not enter any order requiring payment of the bond within a specified period of time. Moreover, it is evident from the record that Walker was not given sufficient notice of any hearing in which the validity of her pauper’s affidavit would be questioned. See OCGA § 9-11-6 (d). Consequently, we reverse the superior court’s grant of the writ. Furthermore, we remand this case back to the superior court with the instruction that a separate hearing on the validity of Walker’s pauper’s affidavit be held. At the conclusion of this hearing, if the court determines that Walker is not a pauper, the court should issue an order specifically directing Walker to pay the amounts owed under the supersedeas bond within a specified time or else the writ will be granted.

Decided March 17, 1995.

Gary C. Harris, for appellant.

J. Steven Astin, Glen A. Garrett, Joseph E. Cheeley, Jr., for appellee.

3. We reject Walker’s contention that the superior court erred in failing to grant summary judgment to her in Crane’s dispossessory action. There are genuine issues of material fact regarding the existence of any landlord/tenant relationship and as to whether demand for possession was made by Crane prior to bringing suit. Furthermore, Walker’s contention that Crane’s dispossessory action was res judicata as the result of the dismissal of Kathy’s prior dispossessory action is untenable. Kathy’s action was dismissed on jurisdictional grounds, and not on the merits of the case. See Buie v. Waters, 209 Ga. 608, 610 (74 SE2d 883) (1953); Vogel v. State, 196 Ga. App. 514, 515 (396 SE2d 262) (1990).

4. The remainder of Walker’s enumerations are meritless.

Judgment affirmed in part and reversed and remanded in part with instruction.

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


author: Andrews, Judge.

text:
    A94A2573.
    LAWTON v. GEORGIA TELEVISION COMPANY et al.
    (456 SE2d 274)
   Andrews, Judge.

This case arose from Georgia Television Company’s (d/b/a WSB-TV) broadcast of a news series called “Dirty Little Secrets.” That series centered around allegations that National Guard Lieutenant Colonel Julius Lawton, the Recruiting and Retention officer, sexually harassed female personnel.

The focus of the series, which was prepared and presented by Richard Belcher, a reporter and anchor for WSB, was the findings of an official National Guard investigation into the allegations of sexual harassment. That investigation consisted of a report, begun in May 1991 by Lieutenant Colonel Clyde Fulton, who was appointed by Brigadier General William Bland to investigate the allegations of harassment. The report contained over thirty witness statements gathered during a two-month investigation. The report concluded that Lawton engaged in sexual misconduct, including harassment. It found that Lawton had “sexually harassed, intimidated and caused subordinates mental stress through his misconduct. There is also evidence of sexual misconduct, that Ltc. Lawton has over the past four years indecently exposed himself on two occasions to two different subordinate employees and had a sexual encounter with SPC Sharon Thomas, a subordinate employee.” It also stated that “[t]he effects of Ltc. Lawton’s misconduct is a tragedy to the victims, to the black soldiers that saw him as a senior role model, and to the Georgia Army National Guard.” The report recommended that Lawton “should be immediately reassigned from his supervisory position and other appropriate disciplinary action should be taken.” It stated that “his discharge from the Army National Guard should not be honorable.”

Although the report’s conclusions were critical of Lawton, the thirteen-page report contained a lengthy discussion of one of the accuser’s, Jackie James, psychiatric problems. The report states that James’ psychiatric evaluation indicates that “[t]here was no evidence of delusions or hallucinations though perhaps her idea of a Major’s sexual advances may be of a projection/delusional quality.” The report notes that James’ counseling sessions were “with a belief by others that the sexual harassment Sgt. James reported was not reality.” Following the close of the investigation, in October 1991, Lawton was reprimanded for the alleged acts of misconduct.

WSB and its reporter, Belcher, subsequently acquired a copy of the report. On February 16, 1992, approximately six months after the Guard report was submitted, WSB aired “Dirty Little Secrets.” The series examined the allegations of sexual harassment cited in the report and the Guard’s failure to take appropriate action against Law-ton despite the report’s findings that the allegations had merit. Law-ton declined Belcher’s repeated attempts to obtain a statement from him.

Prompted by the series, the Guard ordered a “second look” into the allegations on February 25, 1992. On July 2, 1992, defendants reported that the Board of Officers charged with considering the charges had concluded that the allegations of sexual harassment against Lawton were baseless and had cleared him of the charges. A Guard spokesman stated that “the unanimous conclusion of the Board was that the allegations of harassment were really baseless.” Belcher stated “I suppose the Board simply didn’t believe the witnesses.”

Lawton filed suit on February 9, 1993 against WSB, Belcher and Cox Enterprises for defamation and invasion of privacy. The complaint alleged that the broadcasts included the publication of false, malicious and defamatory statements about him, including accusations that he sexually harassed female members of the National Guard. Twice the court granted the defendants’ motion for a more definite statement, ordering that Lawton specifically identify the statements and images upon which his complaint was based. In response, in amended complaints, Lawton referred the court to the videotapes and transcript of the broadcast.

WSB and Belcher filed a motion for summary judgment on the grounds that the broadcasts were privileged as fair and accurate reports of an official government record and the privacy claims were not actionable because they concerned a matter of legitimate public interest. The superior court granted the motion, determining that the fair report privilege rendered WSB and Belcher immune from liability for both defamation and privacy. The court compared the National Guard report with the transcript and videotapes of the broadcast and concluded the broadcast was privileged. This finding was based on the fact that the “gist and/or the sting” of the broadcast did not alter the report so as to convey an erroneous impression of Lawton. The superior court also concluded that the broadcast was privileged as to claims for invasion of privacy since the report concerned a matter of legitimate public interest.

1. In his first enumeration of error, Lawton claims that the superior court erred in determining as a matter of law that the defendants’ broadcast constituted a fair and accurate report of the National Guard report, so as to fall within the “fair report privilege.” Lawton claims that the broadcast aired only the portions of interviews which supported the claims of harassment and that it did not present the complete story. Lawton argues that through insinuation, fragmented reporting, omissions, selective airing of interviews, juxtapositions, and a pervasive “air of sarcasm,” the overall impression created by the broadcast was unfair. He contends that Belcher showed material which enhanced the integrity of the victims, decreased his own credibility, and created an erroneous impression of the report.

One example of the misrepresentations which Lawton cites is that the broadcast minimalized the extent of accuser James’ psychiatric problems. Lawton argues that the broadcast implied that James’ problems and her subsequent honorable discharge were caused by his actions and that these implications were not supported by the report. Lawton also argues that exculpatory information from the alleged victims contained in the report was not shown on the broadcast.

“For reasons of public policy the law recognizes that certain communications and publications should be accorded a privileged status. [Cit.] The privilege exists because it is more important that the public be informed about the privileged proceeding than it is for the defamed person to have legal recourse for the publication of the defamatory material. [Cit.] The public interest in being informed about public proceedings, public controversies, public officials, public figures, demands freedom of the press to report such events without assuming responsibility for what was said by the speaker.” McCracken v. Gainesville Tribune, 146 Ga. App. 274, 275 (1) (246 SE2d 360) (1978); see generally OCGA § 51-5-7.

“It is usually conceded that there is a general rule that a qualified privilege attaches to proceedings of, and fair, impartial, and accurate news accounts of, administrative agencies of the government. Administrative proceedings by governmental agencies to discipline, remove from office, or revoke a license, are quasi-judicial in nature and are entitled, a[t] a minimum, to a qualified privilege.” (Citations and punctuation omitted.) Morton v. Stewart, 153 Ga. App. 636, 639 (266 SE2d 230) (1980); see generally Meyer v. Ledford, 170 Ga. App. 245 (316 SE2d 804) (1984). Lawton does not argue that the National Guard report falls outside of this privilege, and thus concedes that, if otherwise fair and honest, the report is entitled to the conditional privileges afforded in OCGA § 51-5-7. See Morton, supra.

There is no allegation of actual malice in this matter, and the issue before us is simply whether the broadcast was a fair and honest representation of the National Guard report. “ ‘As long as the facts are not misstated, distorted or arranged so as to convey a false and defamatory meaning, there is no liability for a somewhat less than complete report of the truth.’ ” Morton, supra at 641; see also Mathews v. Atlanta Newspapers, 116 Ga. App. 337, 340 (4) (157 SE2d 300) (1967); Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (2), (3) (60 SE2d 802) (1950). The requirement is that the report be both impartial and accurate, that it be “ ‘neutral reportage.’ ” “We find no indication that the republisher has any burden except fairness, honesty, and accuracy.” McCracken, supra at 276. “ ‘The report must present fully, fairly, and accurately an impartial account of the proceedings. Although it must be accurate, at least with regard to all material matters, a substantially accurate report may be privileged, as mere inaccuracies not affecting materially the purport of the article are immaterial. It is not necessary that the report be verbatim, and it may consist of an abridged or condensed statement, provided such statement is a fair one.’ ” Shiver v. Valdosta Press, 82 Ga. App. 406, 412 (61 SE2d 221) (1950).

The parties cite numerous federal cases involving the issue of “defamatory editing,” including Dorsey v. Nat. Enquirer, 973 F2d 1431, 1438 (9th Cir. 1992); Schiavone Constr. Co. v. Time, Inc., 619 FSupp. 684 (D.C.N.J. 1985); and Dameron v. Washington Magazine, 779 F2d 736, 739 (D.C. Cir. 1985), cert. denied, 476 U. S. 1141 (1986). Comment f to section 611 of Restatement of Torts (Second), frequently cited in cases involving this issue, provides: “The rule stated in this Section requires the report to be accurate. It is not necessary that it be exact in every immaterial detail or that it conform to that precision demanded in technical or scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceedings. Not only must the report be accurate, but it must [also] be fair. Even a report that is accurate so far as it goes may be so edited and deleted as to misrepresent the proceeding and thus be misleading. Thus, although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it, as for example a report of the discreditable testimony in a judicial proceeding and a failure to publish the exculpatory evidence, or the use of a defamatory headline in a newspaper report, qualification of which is found only in the text of the article. The reporter is not privileged under this Section to make additions of his own that would convey a defamatory impression, nor to impute corrupt motives to any one, nor to indict expressly or by innuendo the veracity or integrity of any of the parties.” (Indentation omitted.) See Schiavone, supra at 699.

The “substantial accuracy” required for a “fair report” means that the fair report must have the same “gist” as the proceedings reported. See Lavin v. New York News, 757 F2d 1416 (3rd Cir. 1985).

In this matter, we have reviewed the broadcast, the transcript of the series and have compared it with the National Guard report. While the court recognizes that in certain situations the sensationalist “news” reporting of which Lawton complains may be actionable, we nonetheless conclude that the superior court’s grant of summary judgment in this case was proper.

As a matter of law, the broadcast was a “fair and honest” report of the National Guard report. The report on Lawton’s behavior condemned, not exculpated him. The tone of the broadcast accurately depicted the tone of that report. The fact that exculpatory evidence was omitted from the broadcast is not dispositive since it was not required to devote equal time to Lawton’s contentions. See Mathews, supra at 340. The requirement is that the presentation be “substantially accurate.” McCracken, supra.

Though James’ psychiatric history was not detailed in the broadcast, references were made to her psychiatric treatment. Further, although some of the report which was favorable to Lawton was omitted, there was also negative information about Lawton that was also omitted from the series.

The overall “gist” of the broadcast was that despite the negative report on Lawton’s behavior, the Guard had failed to punish Lawton. The broadcast took the report’s conclusions and focused on the delay in the Guard’s actions against Lawton. The Guard report admonished Lawton; the broadcast accurately depicted the tone of the report and followed it one step further.

Decided March 17, 1995.

Freeman & Hawkins, Robert U. Wright, Christine L. Mast, Crawford, Hinesley & Jennings, William F. Hinesley III, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, Jeffrey C. Levy, Thomas M. Clyde, for appellees.

In fact, as the series developed, the focus shifted away from Law-ton. Belcher reported that the Guard had also failed to act with regard to alleged safety problems with Guard aircraft. Governor Miller expressed his concern over the Guard’s failure to act on these matters. The actions under scrutiny were those of Lawton’s superiors in the Guard, not the original allegations of harassment against Lawton.

2. Secondly, Lawton argues that the court erred in dismissing his claims for invasion of privacy on the basis that the Guard report was privileged as a matter of legitimate public interest. Lawton’s argument is without merit.

Since the broadcast was privileged as to the defamation claims, it cannot be the subject of a claim for invasion of privacy. See Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 115 (2) (b) (351 SE2d 513) (1986).

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       Because of the manner in which the issues are presented here, it is not necessary to address the issue of whether Lawton is a “public official.” See generally Stange v. Cox Enterprises, 211 Ga. App. 731 (2) (440 SE2d 503) (1994); Terrell v. Ga. Television Co., 215 Ga. App. 150 (449 SE2d 897) (1994).

       See generally Brewer v. Rogers, 211 Ga. App. 343 (2) (a) (439 SE2d 77) (1993).


author: Smith, Judge. Pope, Presiding Judge, McMurray, Presiding Judge,

text:
    A94A2601.
    A94A2751.
    REESE v. THE STATE. CURTIS v. THE STATE.
    (456 SE2d 271)
   Smith, Judge.

Jeannette Reese was convicted of obstruction of law enforcement officers, OCGA § 16-10-24. Demario Curtis was convicted of kidnapping, OCGA § 16-5-40, armed robbery, OCGA § 16-8-41, and aggravated assault, OCGA § 16-5-21. Because similar issues are raised, these two cases are consolidated on appeal.

Reese’s appeal was docketed in this court on August 15,1994. An extension of time in which to file enumerations of error and brief was denied on October 19, 1994. On October 27, 1994, Reese was directed by order of this court to file enumerations of error and brief no later than November 1, 1994. Curtis’s appeal was docketed in this court on September 6, 1994. On October 18, 1994, Curtis was directed by order of this court to file enumerations of error and brief no later than October 24, 1994. As of this date, appellants have failed either to file enumerations of error and brief or to communicate to this court in writing good and sufficient cause for failure to do so. Both appellants are represented by counsel on appeal.

Appellants have failed to file enumerations of error or a brief after having been ordered to do so, and their appeals are accordingly dismissed. In doing so, we are aware of Mitchell v. State, 214 Ga. App. 69 (447 SE2d 140) (1994). However, that decision inconsistently applies the law and rules of this court, places additional burdens on the trial court, and provides a superfluous procedure where remedies are already available. We believe Mitchell was wrongly decided and should be overruled, returning to an evenhanded application of Rule 26 and adopting the procedure outlined by the Georgia Supreme Court in Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995).

The remand for a hearing in Mitchell is provided only when an appellant is represented by counsel and fails to file any brief or enumeration of errors. As noted in Rowland, this practice creates significant inconsistencies in the enforcement of the rules of this court. Some appellants, but not others similarly situated, are excepted from the application of Rule 26 (a). Some appellants, but not others, receive an additional hearing. Appellants with an attorney who does nothing whatsoever are given greater latitude than those with an attorney who files an inadequate brief or fails to fulfill other requirements of the rules. Finally, Mitchell forces this court of review “to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland, supra at 874 (1).

If this dismissal were a final termination of appellants’ cases and no remedies were available to pursue their appeals, due process requirements would be implicated, and a procedure such as that outlined in Mitchell might be necessary. However, if counsel has abandoned these appeals without appellants’ knowledge, they have several avenues remaining for relief, including application for an out-of-time appeal. See Rowland, supra at (2); see also Mitchell, supra at 71-72 (Beasley, P. J., dissenting). Therefore, the appeals will be dismissed.

While an out-of-time appeal may afford a remedy, it can be a meaningful remedy only if the defendant is aware of his right to an out-of-time appeal and how to exercise it. Because Rowland directs that the dismissal order notify the defendant of his rights, the language of that order will be crucial. It is vital that it be written in language readily understandable to a nonlawyer.

Therefore, in accordance with the procedure outlined in Rowland, copies of these dismissals informing appellants of their right to an out-of-time appeal should be sent to appellants, as well as to counsel with the direction that counsel forward an additional copy to appellants. The orders of dismissal shall contain the following language: “Your appeal has been DISMISSED because your attorney failed to file a brief and enumeration of errors. If you have decided you do not want to appeal, you need not do anything more. However, if you do still want to appeal, you may have the right to an OUT-OF-TIME APPEAL — but YOU MUST TAKE ACTION to exercise that right by moving for an out-of-time appeal in the trial court. If your motion for an out-of-time appeal is granted, the trial court should appoint another attorney for you if you want one and cannot pay for one. If your motion for an out-of-time appeal is denied, you may appeal that denial to this court within thirty (30) days of the trial court’s decision.”

Appeals dismissed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson and Ruffin, JJ., concur. Pope, P. J., and Blackburn, J., concur specially. McMurray, P. J., concurs in part and dissents in part.

Pope, Presiding Judge,

concurring specially.

I agree that these appeals should be dismissed pursuant to the procedure set forth in Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995) and that the language set forth at the end of the majority opinion should be incorporated in the form dismissal order. I write separately because I do not agree with the majority’s criticisms of Mitchell v. State, 214 Ga. App. 69 (447 SE2d 140) (1994).

I concurred in the majority opinion in Mitchell because the procedure it set forth ensured the defendant’s awareness of his right to an out-of-time appeal and how to exercise it, while the procedure set forth in the dissent did not. And I still do not see the problems with Mitchell that the majority sees. I now believe, however, that perhaps the procedure established in Rowland is the optimal compromise. On the one hand, it removes from the trial court the burden of ensuring the defendant knows his rights; but on the other, it does not simply assume, as the dissent in Mitchell did, that the defendant will be aware of his right to an out-of-time appeal or that the same attorney who failed to file a brief in his case will inform him of that right. In any case, it is the procedure we must now use.

I am authorized to state that Judge Blackburn joins in this special concurrence.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I agree that pursuant to the procedure set forth in Rowland v. State, 264 Ga. 872 (452 SE2d 756) the appeals in the cases sub judice should be dismissed. However, additionally, I must dissent as I do not agree that a compelling necessity exists for the overruling of the whole court case of Mitchell v. State, 214 Ga. App. 69 (447 SE2d 140), as the mandate of the Supreme Court of Georgia in Rowland v. State, supra, supersedes all other means, employed by the Court of Appeals of Georgia, of dealing with “represented” defendants in criminal cases where there has been a failure to file enumerations of error and brief after having been ordered to do so by this court. Moreover, I feel that the majority’s criticism of Mitchell v. State, supra, is unwarranted in view of this court’s good faith efforts to remedy a disturbing problem as discussed hereinafter in this dissent.

For the greater part of two decades this court has had to face the vexatious dilemma of which course to be taken to expeditiously handle the appeal of a represented defendant in a criminal case, after docketing in this court, whose counsel appears to abandon the defendant before the filing of an enumeration of errors and brief and after being ordered to do so by this court. In the early stages of an appeal, in a criminal case, this court has no means of knowing why counsel, either through act of God or otherwise, has failed to file an enumeration of errors and brief.

This court has no authority to appoint counsel for a defendant in a criminal case, that authority is reposed in the trial court upon a proper showing.

The genesis of Mitchell v. State, supra, was not brought about in a desire to overload the trial courts or to show preferential consideration to some appellants over others, but to do justice where the trusting defendant, represented by counsel, was left beached, high and dry. Alas, left to flounder in disorientation and in disbelief.

A careful scrutiny of Mitchell v. State, supra, will disclose that it actually authorized a procedure to be followed in ascertaining whether appellate counsel in a criminal case should be held in contempt of this court for failure to obey this court’s order as well as fulfill the professional responsibility of representing the client. Moreover, the facilitation and expeditious determination of the merits of an appeal in a criminal case is the ultimate purpose and this cannot be accomplished in the absence of an enumeration of errors and brief on behalf of the appealing defendant.

The form order to be utilized by this court, as directed in Mitchell v. State, supra, emanated from this court’s desire to adopt, in a published opinion, the similar direction given to the trial courts, under similar circumstances, by the Supreme Court of Georgia, in its orders issued in Favors v. State, S94A1234 (July 22, 1994); Wright v. State, S92A1504 (November 6, 1992); and Mobley v. State, S92A1116 (September 11, 1992).

I am concerned that the holding in the cases sub judice and the holding in Whittle v. State, 210 Ga. App. 841 (437 SE2d 842) may leave an unlevel playing field. So what about Whittle? In Whittle v. State, supra at 842, this court in a (5 to 4) whole court decision held “that when an appellant elects to pursue his own appeal, and fails to file enumerations of error or a brief after having been ordered to do so by this Court, the appeal will be dismissed.” Beyond the appeal being dismissed no further direction is given by this court under the authority of Whittle. All the “unrepresented” criminal defendant is told is “Appeal dismissed.”

Decided March 17, 1995.

Wallace D. Washington, for Reese.

Keith C. Martin, Solicitor, for State.

Armed robbery, etc. Fulton Superior Court. Before Judge Gude (case no. A94A2751).

Neville T. Francis, for Curtis.

Lewis R. Slaton, District Attorney, for Fulton County.

Why cannot the procedure outlined by the majority in the cases sub judice (represented criminal defendants) be utilized in those appeals involving the “unrepresented” criminal defendant who perhaps for one or more of a myriad of reasons either chose to represent himself or herself or did not understand that under certain conditions appellate counsel could be appointed?


author: Pope, Presiding Judge. McMurray, Presiding Judge,

text:
    A94A2629.
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. ALDERMAN et al.
    (455 SE2d 852)
   Pope, Presiding Judge.

Plaintiff, St. Paul Fire & Marine Insurance Company, appeals from the trial court’s grant of summary judgment to defendants, Margaret and Tim Alderman, in this declaratory judgment action.

Margaret Alderman was a patient of Julian Sellek, M.D. In January 1989, she saw Sellek for a urinary tract infection and for examination of a marble-sized cyst, which was under the skin between her vagina and right leg. According to Mrs. Alderman, the cyst was easy to feel on the outside of her leg, and she told Sellek that the cyst was on the surface. Despite having been told the above, during the examination, Sellek inserted his finger into Mrs. Alderman’s vagina and began rubbing up and down as if he were trying to excite Mrs. Aider-man. In response to Sellek’s actions, Mrs. Alderman told Sellek that the cyst was not in her vagina. According to Mrs. Alderman, Sellek then asked her to step down onto the floor, at which point Sellek began massaging her clitoris. During this time, Sellek was breathing heavily, as if he was having a sexual experience. Sellek repeatedly ignored Mrs. Alderman’s comments that the cyst was on the surface of her leg and not in her vagina. Sellek continued to massage Mrs. Alderman until she finally pulled away from him and told him she must not have a cyst. Sellek subsequently called Mrs. Alderman back into the examining room purportedly to check her kidneys. He asked her to remove her shirt, and while looking and feeling in the area of her kidneys, reached up and removed her bra from her right breast.

The Aldermans filed a complaint for money damages against Sellek. Thereafter, plaintiff St. Paul, who provided professional liability insurance to Sellek, filed a declaratory judgment action seeking a determination as to its obligation, if any, to defend and indemnify Sellek. Sellek, the Aldermans and several other patients who allegedly were victimized by Sellek’s sexual misconduct were named as defendants in the declaratory judgment action. Sellek defaulted in that action. Following this default, the Aldermans filed a motion for summary judgment. No motion for summary judgment was brought on behalf of the other defendant/patients. On June 22, 1994, the trial court granted the Aldermans’ motion for summary judgment, concluding that St. Paul had a duty to defend and indemnify Sellek because Sellek’s conduct was inalterably linked to his providing of professional medical services to Mrs. Alderman. St. Paul appeals from the trial court’s grant of summary judgment to the Aldermans.

St. Paul contends that the trial court committed reversible error in determining that the injuries suffered by Mrs. Alderman due to Sellek’s sexual misconduct were covered under the terms of the professional liability policy (the Policy) St. Paul provided to Sellek. We agree and reverse.

Under the terms of the Policy, St. Paul provided Sellek with protection against “professional liability claims” which might be brought against him in his practice as a physician or surgeon. The Policy also specifically states that Sellek’s professional liability protection covered him for damages resulting from his providing or withholding of “professional services.” Consequently, our analysis in this case must focus on the meaning of the term “professional services.”

To begin, we note that this court has never addressed the meaning of “professional services” in a factual context like the one presented here. However, we do find guidance for our analysis in the case decisions of numerous other courts. In determining whether an insured’s actions constitute the providing of “professional services,” the majority of courts looks to the nature of the act the insured performed, rather than the title or status of the insured or the place where the act occurred. See Prior v. S. C. Med. Malpractice Liability Ins. Joint Underwriting Assn., 407 SE2d 655, 657 (2) (S.C. App. 1991); Niedzielski v. St. Paul Fire &c. Ins. Co., 589 A2d 130, 131-132 (1) (N.H. 1991); Standard Fire Ins. Co. v. Blakeslee, 771 P2d 1172, 1176 (3) (Wash. App. 1989). “The scope of ‘professional services’ does not include all forms of a doctor’s conduct simply because he is a doctor.” Hirst v. St. Paul Fire &c. Ins. Co., 683 P2d 440, 444 (1) (Idaho App. 1984). “Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind.” Marx v. Hartford Accident &c. Co., 157 NW2d 870, 871 (3), (4) (Neb. 1968); see Roe v. Fed. Ins. Co., 587 NE2d 214, 217 (Mass. 1992).

Applying the above principles, the vast majority of courts has concluded that no coverage exists under a professional liability insurance policy for claims involving sexual assault, abuse or harassment. See New Mexico Physicians Mut. Liability Co. v. LaMure, 860 P2d 734, 738 (N.M. 1993) (providing a summary of cases in which sexual misconduct was not covered); Hirst, supra, 683 P2d at 443-444. We agree with the majority viewpoint. “Damages resulting from [the] providing of professional services contemplates improper or incorrect medical treatment of a physical ailment by the insured doctor.” (Punctuation omitted.) Smith v. St. Paul Fire &c. Ins. Co., 353 NW2d 130, 132 (Minn. 1984). Sellek’s actions in this case clearly do not constitute such medical treatment. Moreover, his actions in no way involved the application of any specialized learning or skills. Here, Sellek’s actions were “ ‘solely for the satisfaction of (his) own prurient interests.’ ” Id.

We reject the Aldermans’ contention that this case is governed by our holding in St. Paul Fire &c. Ins. Co. v. Mitchell, 164 Ga. App. 215 (296 SE2d 126) (1982). Mitchell specifically dealt with a psychiatrist’s improper manipulation of the transference phenomenon. Id. at 216. By its very nature, the transference phenomenon involves the exchange of emotions between the therapist and patient. Due to the “intense and intimate nature of [such] mental health treatment, sexual contact between therapist and patient is foreseeable when the health care professional does not properly handle transference and counter-transference.” LaMure, supra, 860 P2d at 739. Mitchell and the other cases relied upon by the Aldermans, which involve improper manipulation of the transference phenomenon, are clearly distinguishable on their facts from the case at bar, and we decline to adopt their reasoning here.

We also find the minority viewpoint as expressed in St. Paul Fire &c. Ins. Co. v. Asbury, 720 P2d 540 (Ariz. App. 1986) unpersuasive based on the facts of this case. In Asbury, a gynecologist who intentionally and improperly manipulated a patient’s genitals during a routine gynecological exam was found to be covered by his professional liability policy because his tortious acts were “intertwined with and inseparable from the services provided.” Id. at 542. In this case, Sellek’s alleged sexual probing and manipulation of Mrs. Alderman’s vagina and clitoris clearly was not inextricably intertwined with his examination of the cyst that Mrs. Alderman repeatedly told him was on the surface near her right leg. Nor can it be said that the act of pulling down Mrs. Alderman’s bra was inextricably intertwined with the purported examination of her kidneys.

Decided March 17, 1995

In light of the foregoing analysis, we hold that the Policy does not cover Sellek’s acts of sexual misconduct in this case, and therefore, St. Paul has no duty to defend or indemnify Sellek. Consequently, the trial court erred in granting the Aldermans’ motion for summary judgment.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal, as it is my view that sexual battery committed on the unsuspecting female patient by the physician during a medical examination is covered under the medical professional liability insurance policy issued by St. Paul in this case.

The policy informed the insured that it “provides protection against professional liability claims which might be brought against you in your practice as a physician or surgeon.” Specifically, St. Paul promised individual coverage for “damages resulting from . . . [yjour providing or withholding of professional services.” My examination of the policy reveals no exclusions for intentional acts or for sexual misconduct. Since the sexual batteries alleged in the underlying tort action took place during a medical examination, it is my view that, they fall within the coverage provided by the broad but nevertheless unambiguous language “providing or withholding professional services.” See, e.g., St. Paul Fire &c. Ins. Co. v. Mitchell, 164 Ga. App. 215, 216 (1) (296 SE2d 126), where the whole court determined that the insurer had a duty to defend. See also Ga. Baptist Children's Homes &c. Ministries v. Essex Ins. Co., 207 Ga. App. 346 (1) (427 SE2d 798), where an express exclusion for sexual behavior was nonetheless held to be ambiguous. Whether sexual battery ultimately is (or is not) medical malpractice does not control over the express terms of St. Paul’s promise to provide liability coverage “for damages resulting from . . . [the insured’s] providing or withholding of professional services.” I respectfully dissent.

Alexander & Vann, George R. Lilly II, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Mark E. Robinson, for appellant.

Evans & Evans, Larry K. Evans, 0. Wayne Ellerbee, Dodd & Turner, Roger J. Dodd, Langdale, Vallotton & Linahan, Samuel F. Greneker, for appellees.


text:
    A94A2665.
    DARBY v. THE STATE.
    (455 SE2d 850)
   Pope, Presiding Judge.

Following a bench trial, Dermain Darby was convicted of one count of armed robbery. On appeal, defendant contends that the trial court erred in denying his motion to suppress in that there was no probable cause to search his residence, there were no exigent circumstances to justify an exception to the warrant requirement, and he did not consent to the search.

A man brandishing a handgun entered the Greyhound bus station, ordered a Greyhound employee to give him money and left. Police Officer Brasher received notice of the armed robbery from radio dispatch and was told to be on the lookout for a white Camaro driven by a black male. Brasher soon observed a white Camaro driven by a black man. Brasher turned his vehicle around and, according to his testimony on cross-examination, decided to follow the vehicle “to investigate further.” The car turned into an apartment complex and Brasher lost sight of it for ten to fifteen seconds. Thereafter, he observed an unoccupied white Camaro parked in the complex. Two unidentified black males approached Brasher and told him that the men in the car exited the vehicle and ran behind the building. Brasher proceeded to the rear of the building, where he saw two black males exit an apartment and move toward him. Both men were forced to the ground and frisked by the officer. Brasher found a set of keys in the pocket of one man, who claimed he was the owner of the Camaro. Another officer, Captain Ball, arrived and found three more people, including defendant, in an apartment. He requested defendant’s permission to search the residence. He informed defendant he would secure a search warrant if consent was refused. Defendant disputes the officer’s contention he granted permission to search. Weapons, contraband, and other incriminating evidence were found during the search.

“[T]he trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994).

1. In his first two enumerations of error defendant contends there was no probable cause to search his residence and no exigent circumstances which would justify the warrantless search of his residence. When Brasher frisked the men leaving the apartment he had only the following information: a black male driving a white Camaro committed an armed robbery of a Greyhound station; one of the men who exited the apartment was the owner of a white Camaro that may have been the vehicle he was following; an unidentified person told him the occupants of the car ran around the back of the apartments. These facts are similar to those in Vansant, in which the officer was notified by radio dispatch to be on the lookout for a white van driven by a white male. As in Vansant, the officer in this case did not have a particularized description of the vehicle, such as a tag number, he did not know the direction in which the vehicle was traveling when it left the scene of the robbery, he did not observe any criminal activity by the men in the Camaro and he had no knowledge or suspicion that the vehicle or its occupants had been involved in other criminal behavior, and he did not have any knowledge that the occupants of the apartment, including the defendant, were involved in criminal activity. Under similar facts, the Supreme Court in Vansant held the officer did not have articulable suspicion to conduct a Terry stop. Clearly, if a Terry stop is not authorized under these circumstances, the officers could not establish probable cause to search the apartment.

Defendant also asserts that even conceding probable cause to search the residence, the warrantless search of the residence and its occupants was illegal absent exigent circumstances. Bogan v. State, 165 Ga. App. 851, 852 (303 SE2d 48) (1983). The State argues the “hot pursuit” exception, which is a particular type of exigency that is an exception to the warrant requirement, applies in this case. Warden, Maryland Penitentiary v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967); Hamrick v. State, 198 Ga. App. 124 (401 SE2d 25) (1990). The critical elements that need to be satisfied in order to establish this exception are (1) continuity of pursuit, and (2) immediacy of pursuit. Hamrick, 198 Ga. App. at 126. As to this issue the record shows that Brasher was two car lengths behind the suspect’s vehicle and was not involved in a chase, but just wanted to investigate further. He never turned on his emergency equipment in an attempt to stop the vehicle. When he entered the apartment complex he lost sight of the vehicle. Upon finding it and determining that the suspects were running away from him, he walked to the back of the complex and waited for backup before even knocking on the apartment door. Clearly these facts do not suggest hot pursuit, but rather an officer following a hunch. The claim of exigent circumstances is without merit.

Decided March 17, 1995

Alan J. Baverman, for appellant.

Thomas J. Charron, District Attorney, Thomas A. Cole, Beth T. Golub, William R. Pardue, Assistant District Attorneys, for appellee.

2. Defendant also contends he did not consent to the search of his apartment. Defendant argues he was not free to leave the apartment, and Ball advised him a search warrant would be obtained if permission to search was not granted. Ball testified on cross-examination that he advised the defendant he would obtain a search warrant if defendant did not give his consent. When an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused’s consent is invalid. Code v. State, 234 Ga. 90, 95 (214 SE2d 873) (1975). When Ball entered the apartment he was only privy to information Brasher had, and the information was insufficient to obtain a search warrant. We cannot find defendant’s consent was freely given. The trial court erred in denying the defendant’s motion to suppress.

Judgment reversed.

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


text:
    A94A2683.
    TAMPA PIPELINE CORPORATION v. CITY MILLS COMPANY.
    (456 SE2d 270)
   Pope, Presiding Judge.

In this dispossessory action brought pursuant to OCGA § 44-7-50 et seq., tenant appeals the entry of a default judgment for landlord. As we agree with tenant that the trial court should not have entered a default judgment against it, we reverse the judgment and remand the case for further proceedings. Landlord’s motion to dismiss the appeal is denied.

Landlord initiated this dispossessory action on June 23, 1994. It served the affidavit and summons on tenant, a foreign corporation without a registered agent in this state, in three ways: (1) on June 27, 1994, by mailing a copy to defendant’s president by certified mail, return receipt requested, and also serving the Secretary of State (see OCGA §§ 14-2-1510 (b), (c) and 9-11-4 (d) (1)); (2) on June 30, 1994, by posting a copy of the summons and affidavit on the premises (see OCGA § 44-7-51 (a)); and (3) on July 7, 1994, by personal service on defendant’s president (see OCGA § 9-11-4 (e) (2)). A tenant in a dispossessory proceeding generally has seven days to answer the landlord’s affidavit, and the summons must explicitly notify the tenant of the last possible date to answer. See OCGA § 44-7-51 (b). However, the summons attached to landlord’s affidavit in this case explicitly stated that tenant had 30 days to answer. Landlord noticed this error in the summons and on June 29, 1994, attempted to amend the summons. But instead of serving the amended summons with the same formalities required for original service, landlord simply mailed it to an attorney who had represented tenant in the past but had not yet appeared in this case. See OCGA § 9-11-5. Nonetheless, the trial court granted default judgment for landlord more than seven days but less than thirty days after tenant was served.

Decided March 17, 1995.

McGee & Oxford, James B. Crew, Jr., for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Teri D. Yancey, for appellee.

In the absence of material prejudice to the defendant, a trial court may allow a summons to be amended. OCGA § 9-11-4 (h). The amendment in this case was not allowed by the court, however, except to the extent its grant of default judgment can be construed as “allowing” the amendment retroactively. Indeed, the amended summons was not even issued by the clerk of the court, as provided by OCGA § 9-11-4 (a); although the deputy clerk notarized the document, it issued from landlord’s counsel.

Yet even if we assume the amended summons is otherwise valid, the real problem is with service of the document. A summons must be served in accordance with statutory formalities not simply for form, but to notify the defendant that he is being sued and that he must answer by a specified time. Jones v. Jones, 209 Ga. 861, 862 (76 SE2d 801) (1953). Thus, to ensure notification of the defendant, an amendment to a summons which changes the time within which a defendant must answer should be served with the same formalities required for the original summons. Cf. Young v. Cowles, 128 Ga. App. 770 (2) (197 SE2d 864) (1973) (statutory procedures for dispossessing tenant must be strictly construed and observed).

It follows that the default judgment is reversed and the case remanded. On remand, the trial court may allow the summons to be amended and properly served, so that the case may be decided on its merits.

Judgment reversed and case remanded.

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


author: Ruffin, Judge.

text:
    A94A2702.
    FAULKNER v. FRAMPTON.
    (456 SE2d 88)
    Decided March 17, 1995.

      Baskin & Baskin, Harris P. Baskin, Jr., for appellant.

      Kupferman & Ransopher, Lawrence D. Kupferman, Nancy S. Rogers, for appellee.
   Ruffin, Judge.

We granted Paul Faulkner’s application for discretionary appeal from the trial court’s upward modification of a child support award based on Faulkner’s substantial increase in income.

Faulkner contends the trial court erred in awarding child support outside the range enumerated in the Georgia Child Support Guidelines (OCGA § 19-6-15) without a written finding of special circumstances.

OCGA § 19-6-15 (c) provides: “The trier of fact may vary the final award of child support, up or down, outside the range enumerated in . . . this Code section upon a written finding of special circumstances. The special circumstances may be any factor which the trier of fact deems to be required by the ends of justice. . . .” The statute was recently amended to permit a specific finding on the record in lieu of a written finding. OCGA § 19-6-15 (b); Ga. L. 1994, p. 1728, § 1. “The finding ‘must state the amount of support that would have been required under the guidelines and include justification of why the order varies from the guidelines.’ ” Ehlers v. Ehlers, 264 Ga. 668, 669 (1) (449 SE2d 840) (1994).

The trial court’s order modifying Faulkner’s child support obligation sets forth ample justification supporting an increased award, but “the amount of support that would have been required under the guidelines” is not set forth by the court in its order or elsewhere in the record, as required by Ehlers, supra. Nor is there a finding as to Faulkner’s gross income to enable one to compute his current child support obligation. Thus, this case must be remanded for written findings in accordance with OCGA § 19-6-15 (b) and Ehlers, after which either party may apply for appellate review.

Since consideration of the remaining enumerations of error is dependent upon a correct award, we decline to do so at this time.

Case remanded with direction.

Birdsong, P. J., and Blackburn, J., concur.


author: Smith, Judge. Pope, Presiding Judge,

text:
    A94A2714.
    FULTON-DeKALB HOSPITAL AUTHORITY v. WALKER et al.
    (456 SE2d 97)
   Smith, Judge.

This is the second appearance of this case in this court. In Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga. App. 750 (409 SE2d 529) (1991), we affirmed the trial court’s grant of summary judgment in favor of the Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital (“Grady”). The Supreme Court denied the Walkers’ application for certiorari. 202 Ga. App. 907.

Over two years later, Sharon and David Walker filed a motion to set aside the judgment on the ground that Grady had fraudulently obtained summary judgment by concealing from them (and from the court) that its contingency reserve fund plan had been amended and that it purportedly waived the charitable immunity defense. Grady denied any fraudulent concealment, and it moved to dismiss the Walkers’ motion to set aside or, alternatively, for summary judgment. The trial court denied Grady’s motion. Grady’s claim of attorney-client privilege with respect to certain information sought to be discovered by the Walkers was also rejected. The trial court certified both orders for immediate review, and we granted Grady’s application for interlocutory appeal.

It is undisputed that Grady has had some sort of self-insurance or contingency reserve program to protect its assets against malpractice claims since 1975 and that it has no commercial insurance coverage for such claims. Deposits from Grady’s operating budget to the fund are made under a trust agreement with a bank. The plan adopted in 1975 was designated a self-insurance plan.

In 1987, the Supreme Court decided in Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (353 SE2d 515) (1987), that because payments from the fund would deplete Grady’s charitable assets, Grady’s self-insurance plan did not amount to “liability insurance” and Grady had not waived its charitable immunity when it adopted the plan. Id. at 835. In 1987, after the decision in Ponder, Grady adopted a new plan, the “Fulton-DeKalb Hospital Authority Contingency Reserve Fund.” It continued to have many of the same provisions, but it also contained a new, limited waiver of charitable immunity. That waiver provided that it was applicable “only to claims and suits as to which the claimant or plaintiff specifically acknowledges applicability of this limited waiver provision and alleges or asserts that the suit or claim is brought pursuant to the provisions of this section.” The plan expressly reserved all other immunities and provided that it “is not, and shall not be construed as, a general waiver of the charitable immunity doctrine. . . .” In Walker I (decided after the adoption of the contingency reserve fund plan), this court affirmed the trial court’s grant of summary judgment to Grady on three grounds: sovereign immunity, charitable immunity, and statutory immunity.

Even if the trial court’s grant of summary judgment to Grady was based only upon charitable immunity, this court had the power to affirm the judgment below on either of the two alternative grounds under the principle that a trial court’s judgment right for any reason will be affirmed. See Langford v. Royal Indent. Co., 208 Ga. App. 128, 134 (3) (e) (430 SE2d 98) (1993); Scott v. Hamilton Dorsey Alston Co., 206 Ga. App. 504, 505 (2) (426 SE2d 55) (1992). Therefore, even accepting appellee’s contention and assuming Grady’s charitable immunity was waived under the 1987 contingency reserve plan, if summary judgment in favor of Grady was proper either on sovereign immunity or statutory immunity grounds, it served no purpose to set aside the judgment based on the ground that charitable immunity had been waived because of the fraud alleged by the Walkers. In this case, therefore, the Walkers had the burden of showing that Grady was not entitled to summary judgment on any of the bases upon which the decision in Walker I rests. If the Walkers did not carry this burden, their motion was unavailing, even if correct as to the charitable immunity ground, and the trial court should have granted Grady’s motion to dismiss it. We therefore first address the two alternative grounds.

1. OCGA § 9-11-60 (h) provides that “[t]he law of the case rule is abolished; . . . provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” If the decision of an appellate court thereafter becomes “incorrect” because the law changes — either because of subsequent case law or because of later-enacted statutes — it may not be binding precedent for other situations. However, between the parties to the original decision it remains binding. See Braner v. Southern Trust Ins. Co., 255 Ga. 117, 122 (335 SE2d 547) (1985); Gober v. Hosp. Auth. &c., 191 Ga. App. 498, 499 (2) (382 SE2d 106) (1989). Any other practice would result in constant relitigation of issues as the law continually evolves.

Although the Supreme Court’s recent decision in Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994), holding that hospital authorities are not entitled to sovereign immunity, is now “the law” as to this issue for all other litigants, it can have no effect on these parties because of the earlier contrary affirmance of summary judgment on this issue in Walker I. It is binding on this court as well as the trial court. The Walkers therefore may not successfully contend that Grady was not entitled to assert the defense of sovereign immunity in 1990. The Walkers may contend this defense has been waived, but they have the burden of establishing such a waiver. “ ‘Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege . . . and the waiver must be established by the party seeking to benefit from the waiver.’ . . . [Cit.]” City of Lawrenceville v. Macko, 211 Ga. App. 312, 314 (1) (439 SE2d 95) (1993).

We find they have not carried this burden. The language of the 1987 plan makes clear that Grady expressly reserved all immunities to which it was entitled, except for a limited waiver of charitable immunity. It specifically and expressly provided that the plan was “not, and shall not be construed as, a general waiver of the charitable immunity doctrine [or] a waiver of . . . any other immunity as to any claim or suit against a covered person. . . .” Contrary to the Walkers’ argument, the waiver of sovereign immunity in another plan adopted by Grady after the trial court granted summary judgment in Walker I does not apply to them. A subsequent waiver is inapplicable to this action because a “waiver of sovereign immunity occurs at the time that the action arises.” Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992).

The entire premise of the dissent is also based upon the applicability to this case of the later, second revision of the plan, which was adopted in 1990, after the Supreme Court overruled Med. Center Hosp. Auth. v. Andrews, 250 Ga. 424 (297 SE2d 28) (1982). Although the dissent refers to this plan as the “post-Ponder plan,” the plan adopted in reaction to the Ponder decision was adopted in 1987. That is the plan applicable here, and not the 1990 plan. By the time the 1990 plan was adopted, summary judgment had been granted by the trial court and a notice of appeal had been filed.

The Walkers’ reliance upon Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992), in support of their contention that a self-insurance plan is sufficient to waive sovereign immunity, is similarly misplaced. First, Litterilla had not yet been decided when this court affirmed the trial court’s grant of summary judgment to Grady. Second, Litterilla is distinguished on its facts. The hospital in that case had purchased an “umbrella” liability policy to supplement its self-insurance plan, and the Supreme Court held that “the Umbrella Liability Policy together with the trust fund created by the Hospital . . . constitutes ‘liability insurance protection’ within the meaning of the constitutional provision [regarding waiver in effect at the time] and therefore acts as a waiver of sovereign immunity.” Id. at 36. Moreover, in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990), the Georgia Supreme Court held that counties are not authorized to waive sovereign immunity by creating such self-insurance plans because “under the statutes dealing with liability insurance for government employees and officials, only state self-insurance plans will waive sovereign immunity.” Id. at 209. Therefore, under the authority of Logue, Grady’s plan cannot operate to waive sovereign immunity.

Because the Walkers had the burden of establishing waiver of the defense of statutory immunity and failed to do so, the prior grant of summary judgment on the statutory immunity ground, affirmed by this court in Walker I, may safely stand. It is therefore unnecessary to consider the other two grounds. The trial court erred in denying Grady’s motion to dismiss or for summary judgment.

2. It follows that we need not address Grady’s contention that the trial court erred in ruling that the documents sought to be discovered by the Walkers were privileged.

Judgment reversed.

Birdsong, P. J., McMurray, P. J., Andrews, Johnson and Ruffin, JJ., concur. Beasley, C. J., Pope, P. J., and Blackburn, J., dissent.

Pope, Presiding Judge,

dissenting.

After Ponder was decided in 1987, the Authority established a new trust fund in which millions of dollars were set aside for the purpose of paying negligence claims. Nonetheless, representatives of the Authority stated under oath in the years 1988 through 1990 that the Authority had no assets set aside from their operating funds, that nothing had changed since Ponder, and that it had no documents relating to any type of self-insurance plan.

Unlike the majority, I believe the existence of a new, post-Ponder trust fund established for the purpose of defending and paying negligence claims (and the Authority’s alleged fraud in failing to disclose it) is relevant to the Authority’s defenses based on sovereign and statutory immunity as well as charitable immunity. Accordingly, I believe the Authority’s motions for dismissal and summary judgment were properly denied.

The new, post -Ponder plan waived sovereign immunity in addition to charitable immunity. The chairman of the Authority’s board at the time the new plan was adopted testified that the Authority intended to waive both charitable and sovereign immunity to allow patients to bring claims up to a certain limit. (Indeed, what purpose would it serve to waive charitable immunity without waiving sovereign immunity?) It is true that the initial version of the plan expressly waived only charitable immunity. But at that time, the Authority was not entitled to rely on sovereign immunity under Med. Center Hosp. Auth. v. Andrews, 250 Ga. 424 (297 SE2d 28) (1982). When the Georgia Supreme Court overruled Andrews and held that hospital authorities were entitled to rely on a sovereign immunity defense (see Self v. City of Atlanta, 259 Ga. 78 (377 SE2d 674) (1989)), the Authority actually revised the plan to clarify the scope of its waiver: “One of the purposes and intent of the Authority in establishing this Fund is to provide a limited waiver of its charitable and sovereign immunity defenses.” Moreover, the revised plan explicitly stated that January 1, 1988 would be the effective date of the waiver, and that it would be applicable to claims and suits “arising out of occurrences which take place on, or subsequent to, January 1, 1988.”

Because the plan waives sovereign as well as charitable immunity, the alleged fraud goes to prior rulings with respect to both defenses.

The Authority’s allegedly fraudulent withholding of the plan is also relevant to the statutory immunity defense, as the statutory immunity referred to in Walker I is simply a form of charitable immunity which is waived by a general waiver of charitable immunity. See OCGA § 51-1-29.1.

In short, it appears that the trial court’s initial grant of summary judgment and our holdings in Walker I were all based on an incorrect set of facts provided by the Authority — that the Ponder plan was still the only plan in effect. Thus, the holdings resulting from the alleged fraud should not preclude consideration of whether the Authority’s conduct does in fact constitute fraud sufficient to warrant setting aside the earlier judgment under OCGA § 9-11-60 (d) (2).

Decided March 17, 1995

Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., Bernard Taylor, Rogers & Hardin, C. B. Rogers, for appellant.

Bird, Ballard & Still, William Q. Bird, Robert K. Finnell, for appellees.

I am authorized to state that Chief Judge Beasley and Judge Blackburn join in this dissent.

       The new plan also changed the payment limits for any single occurrence and for the overall annual total payable for all occurrences. Those changes are not material to this appeal.

       Contrary to the Walkers’ argument that this court’s holdings as to sovereign immunity and statutory immunity are dicta, “ ‘where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other.’ [Cits.]” Dooly v. Gates, 194 Ga. 787, 793 (22 SE2d 730) (1942).

       We note also that, having decided that “the plan” waived all immunities, the dissent nevertheless fails also to address the issue then created by Grady’s disclosure to the Walkers that a plan was in effect, and the Walkers’ subsequent failure to conduct further discovery that would have revealed its exact terms.

       This court so held in Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 348 (1) (b) (411 SE2d 75) (1991). But see Thomas v. Hosp. Auth. of Clarke County, supra, 264 Ga. 40, 41 (“hospital authorities, because they are neither the state nor a department or agency of the state, are not entitled to the defense of sovereign immunity”). We have held, infra, that Thomas does not apply here.

       In Bagley v. Fulton-DeKalb Hosp. Auth., 216 Ga. App. 537 (455 SE2d 325) (1995) we recently held that, based on the evidence presented to us, it did not appear that the post-Ponder plan was intended to be retroactively applied to incidents happening in 1984 or 1986. (Ponder was decided in 1987.) Contrary to the Authority’s suggestion, however, this does not mean that a 1990 revision to the post-Ponder plan — a revision which the plan drafters explicitly made applicable to any occurrence after January 1, 1988 — cannot be applied by its terms to an occurrence, such as this one, which happened after January 1, 1988.