author: Johnson, Chief Judge.

text:
    A99A1011.
    BEAN v. THE STATE.
    (521 SE2d 19)
   Johnson, Chief Judge.

This appeal from convictions of child molestation and furnishing alcohol to a minor challenges the sufficiency of the state’s notice of its intent to introduce similar transaction evidence, the court’s rulings on the scope of cross-examination of state witnesses, and the jury charges on similar transactions and child molestation. We find no reversible error by the trial court and therefore affirm the convictions.

Charles Bean was indicted for child molestation by masturbating in the presence of the victim, sodomy by placing his mouth on the victim’s penis, aggravated child molestation also for placing his mouth on the victim’s penis, interference with child custody and furnishing alcohol to a minor. Bean denied the charges, and the case was set for a jury trial. Before trial, the court dismissed the charge of interfering with child custody.

The case proceeded to trial on the remaining charges. The victim testified that when he was 11, Bean touched his “private parts.” He further testified that when he was 15, Bean gave him beer, played games of “strip pool” with him during which the loser of each game had to remove his clothes, sat naked with him in a hot tub, showed him a pornographic movie, fondled the victim’s penis, performed oral sex on him and masturbated in front of him.

The state presented two similar transaction witnesses. The first witness testified that when he was 21, Bean played a game of “strip pool” with him, sat nude with him in Bean’s hot tub, showed him his penis, and asked if the witness wanted to watch a pornographic movie and masturbate. The other witness testified that when he was 13, Bean asked him to play “strip pool” and twice touched his penis.

Bean presented witnesses who testified about his good character and reputation for honesty. Bean then testified, denying the allegations of the victim and the similar transaction witnesses regarding his sexual conduct with them. He further claimed that he did not provide alcohol to the victim.

The state then introduced a rebuttal witness who testified that when he was 16, he spent the night at Bean’s house. Bean insisted that the teenager sleep in the same bed with Bean. During the night Bean touched the teenager’s penis and placed the teenager’s hand on Bean’s penis.

The jury returned its verdict, finding Bean guilty of child molestation and of furnishing alcohol to the victim, but not guilty of the remaining charges. The court sentenced Bean to serve ten years in prison followed by ten years on probation for child molestation, with a concurrent sentence of twelve months imprisonment for furnishing alcohol to a minor. Bean appeals from his convictions.

1. Bean argues the court erred in allowing the victim to testify that Bean touched his penis when he was 11 because the state had not given Bean notice, as required by Uniform Superior Court Rules 31.1 and 31.3, of its intention to introduce this similar transaction evidence. The Supreme Court has ruled that USCR 31.1 and 31.3 do not apply to instances of prior difficulties between a defendant and a victim. Wall v. State, 269 Ga. 506, 507-509 (2) (500 SE2d 904) (1998). Bean’s argument is therefore without merit. See Smith v. State, 270 Ga. 123, 124 (2) (508 SE2d 173) (1998).

Moreover, it is apparent from the record that Bean was not surprised by the victim’s testimony because Bean filed a motion in limine to exclude testimony by the victim that Bean had molested him several years before the molestation charged in this case. Absent harm, Bean has shown no reversible error in the admission of the testimony. See Martin v. State, 219 Ga. App. 277, 280 (2) (b) (464 SE2d 872) (1995).

2. Bean complains that the court should not have allowed the two similar transaction witnesses to testify because the state failed to give him proper notice of its intention to introduce such testimony. The complaint is without merit.

The purpose of requiring the state to give notice of its intention to introduce evidence of similar transactions is to provide the defendant an opportunity to raise questions of the admissibility of such evidence before trial. Davidson v. State, 232 Ga. App. 250, 251 (1) (501 SE2d 510) (1998); Tenant v. State, 229 Ga. App. 20, 22 (a) (492 SE2d 909) (1997) (physical precedent). In the instant case, the purpose of the notice requirement was fulfilled because Bean had sufficient notice and opportunity to raise his questions regarding the admissibility of the similar transaction evidence before trial.

The state gave Bean written notice more than ten days before trial of its intention to present evidence from the first similar transaction witness regarding Bean’s solicitation of mutual masturbation in September 1996 and from the second witness regarding incidents of child molestation by Bean from 1979 through 1982. Bean then filed a motion in limine regarding the similar transaction testimony. In his motion, Bean expressly referred to a law enforcement investigator’s written summaries of interviews he had conducted with both witnesses. Bean stated in his motion in limine that the first witness told the investigator that Bean had suggested that they watch pornographic tapes and masturbate, and that Bean had shown him his penis. Bean further stated in his motion in limine that the second witness claimed that when he was thirteen, Bean, amongst other things, had touched his penis two or three times. Thereafter, at the similar transaction hearing, the prosecutor made proffers of the witnesses’ expected testimony that were almost identical to Bean’s motion in limine summaries of the statements of the witnesses.

As evidenced by his motion in limine, Bean was fully aware of the details of the similar transaction witnesses’ allegations, he had an opportunity to challenge the admissibility of their testimony before trial, and he was not surprised or unfairly prejudiced by the testimony at trial. See Parrish v. State, 237 Ga. App. 274, 279-280 (4) (514 SE2d 458) (1999); Tenant, supra. The trial court therefore did not err in allowing the similar transaction evidence.

3. Bean asserts that, even though the court charged the jury on the limited purpose of the similar transaction testimony as part of its general charge at the end of the trial, the court erred in not giving such a charge contemporaneous with the admission of the similar transaction testimony. Bean claims he requested such a contemporaneous charge and cites his motion in limine in support of that claim. While Bean’s motion in limine does request a similar transaction jury charge, it does not ask that the court give the charge contemporaneously with the admission of the evidence. Moreover, our review of the trial transcript of the two similar transaction witnesses’ testimony reveals that Bean did not request a contemporaneous charge before, during or after their testimony. Thus, contrary to Bean’s assertion, it does not appear he ever requested that the court give a similar transaction charge contemporaneous with the admission of such evidence.

The Supreme Court has expressly ruled that absent a request for a contemporaneous charge, the trial court’s failure to give such a charge is not error. See State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998); State v. Belt, 269 Ga. 763, 765 (505 SE2d 1) (1998). The trial court in this case therefore did not err in failing to charge the jury on the limited purpose of the similar transaction testimony at the time the testimony was admitted. See Stone v. State, 236 Ga. App. 365, 366-367 (2) (511 SE2d 915) (1999); Rehberger v. State, 235 Ga. App. 827, 830 (3) (510 SE2d 594) (1998).

4. Bean contends the court improperly ruled that he could not cross-examine the victim about a pending juvenile court proceeding which could have revealed the victim’s motive in testifying against Bean. We disagree.

The court ruled that Bean should not refer to the victim’s juvenile delinquency record, but that he could ask the victim if the state had promised him anything in exchange for his testimony. Thereafter, the court allowed Bean to elicit testimony from the victim that he had gone to Bean’s house to avoid going to a juvenile court probation revocation hearing. Bean also was permitted to ask the victim if the police, while questioning him in a youth detention facility, promised him leniency, immunity or any other help in exchange for his testimony against Bean.

Contrary to Bean’s contentions, the court correctly ruled that the victim’s juvenile delinquency record could not be used to impeach him. See Smith v. State, 270 Ga. 240, 244 (5) (510 SE2d 1) (1998); McBee v. State, 210 Ga. App. 182 (1) (435 SE2d 469) (1993). Moreover, the court did not impede Bean’s ability to question the victim about his possible bias or motive for his testimony, but plainly allowed such questioning. We therefore find no error.

5. Bean contends the court erred in not allowing him to cross-examine the first similar transaction witness about a theft charge pending against him. When Bean attempted to question the witness about the pending charge, the court sustained the state’s objection to the question and rejected Bean’s assertion that he wanted to explore the witness’ motive to testify on behalf of the state. This ruling was error.

A criminal defendant’s right of confrontation includes the right to cross-examine a key State witness concerning pending criminal charges against the witness. In addition to the general right to impeach the witness by proof of prior criminal convictions, the defendant is entitled to make a more particular attack on the witness’ credibility by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness.

(Citations and punctuation omitted.) Hurston v. State, 206 Ga. App. 570, 573 (3) (426 SE2d 196) (1992) (physical precedent).

However, given the testimony of the victim, the other similar transaction witness, and the state’s rebuttal witness, we find that there is overwhelming evidence of Bean’s guilt and that the court’s error was therefore harmless. See Garcia v. State, 267 Ga. 257, 259 (7) (477 SE2d 112) (1996); Byrd v. State, 262 Ga. 426, 428 (2) (420 SE2d 748) (1992).

6. Bean also argues the court improperly refused to allow him to question the other similar transaction witness about his motive for testifying in light of criminal charges pending against him. Although Bean claims that the court made this ruling when passing on the state’s motion in limine, it is not apparent to us that such a ruling as to this witness was ever made.

At the start of the trial the court heard the parties’ arguments on the state’s motion asking that any attempts by Bean to impeach the state’s witnesses be done through the introduction of certified copies of prior convictions and not by reference to arrest records. The parties’ arguments focused on the juvenile victim and his juvenile record. At no time during the arguments did Bean claim that the second similar transaction witness had criminal charges pending against him about which Bean wanted to cross-examine him in order to show bias or motive in favor of the state. Rather, Bean argued only about the proper use of the juvenile victim’s record. After the parties’ arguments, the court issued its ruling as to the juvenile’s record, as discussed above in Division 4, and further stated, “on the grown folks, you’d clearly have to show an adjudication there.”

Based on the arguments made to the judge, we find that this statement was simply a correct ruling that in order to impeach a witness by showing general bad character a party must introduce evidence of the witness’ conviction and may not rely on evidence of an arrest or pending charge. See King v. State, 194 Ga. App. 770 (1) (391 SE2d 769) (1990). Because Bean had not argued to the judge that he wanted to explore the witness’ motives for testifying due to some pending criminal charge, we cannot construe the judge’s statement as somehow precluding Bean from questioning the witness about his motives.

Decided June 30, 1999

Reconsideration denied July 14, 1999.

William A. Adams, Jr., for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Moreover, we note that when this witness testified, Bean made no effort to cross-examine him about any pending criminal charges. Consequently, Bean waived any argument on this issue not only by failing to suggest to the court that it was important to cross-examine the witness about pending charges to determine if he thought he had a reason to please the prosecution, but also by not attempting to question the witness about the charges. See Isaac v. State, 269 Ga. 875, 876 (2) (505 SE2d 480) (1998).

7. Bean complains that the court’s jury charge on the statutory, definition of child molestation was misleading because it failed to limit the jury’s consideration only to the method of the crime alleged in the indictment. This complaint is without merit.

In addition to charging the jury on the definition of child molestation set forth in OCGA § 16-6-4 (a), the court read to the jurors the indictment charging Bean with child molestation by masturbating in the victim’s presence, instructed the jurors that the state bears the burden of proving every allegation in the indictment, and instructed the jurors that they were authorized to find Bean guilty of child molestation only if the evidence showed beyond a reasonable doubt that he committed the offense as set out in the indictment.

Thus, contrary to Bean’s complaint, the jury charge as a whole was correct, not misleading and limited the jury’s consideration of the child molestation charge only to the manner alleged in the indictment. Fuller v. State, 211 Ga. App. 104, 105 (4) (438 SE2d 183) (1993); Potts v. State, 207 Ga. App. 863, 865 (1) (429 SE2d 526) (1993).

Judgment affirmed.

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

       Bean’s enumeration of error violates OCGA § 5-6-40 by asserting other errors in addition to the allegedly deficient notice. We exercise our discretion by declining to review these multiple claims of error argued in a single enumeration. See White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996).

       In his enumerations of error regarding the sufficiency of the state’s similar transaction notice, Bean again argues additional errors, which we shall not review. See White, supra.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A0547.
    KLINGSHIRN et al. v. McNEAL.
    (520 SE2d 761)
   Pope, Presiding Judge.

Carol McNeal brought an action against Mike and Sherri Kling-shirn and the Klingshirns’ contractor, David McClure, for damages resulting from the removal by McClure of trees from McNeal’s land. Following a bench trial, the court in a thorough order awarded damages in favor of McNeal and against the Klingshirns who now appeal.

The court found that McNeal and the Klingshirns owned adjacent property and that the portion of McNeal’s property immediately adjacent to the Klingshirns’ was outside a fence that McNeal had constructed on her property at some time in the past. Mike Kling-shirn hired McClure to cut and remove certain trees on his property, and the court found that Klingshirn erroneously told McClure to cut all the trees up to the fence. McClure removed the trees as instructed, including eight loblolly pine trees located on McNeal’s property. The court found that Klingshirn’s error was his good faith misunderstanding concerning the exact location of the property line when he instructed McClure what trees to cut.

At the close of McNeal’s case, the court granted McClure’s motion for involuntary dismissal on the ground that McNeal failed to show any right to relief against him. McClure remained a third-party defendant of the Klingshirns’ claim for indemnification. Two weeks after trial, the court issued its final order finding the Klingshirns liable for trespass resulting in damage to realty in the amount of $9,800 plus court costs.

1. The Klingshirns first contend the court erred in denying their request for involuntary dismissal on liability. In granting McClure’s motion the court held, “The evidence produced by the plaintiff, with all reasonable deductions therefrom, failed to show a claim against the defendant David McClure.” The Klingshirns assert that because the court granted McClure’s motion, they could not be liable as a matter of law because the trespass claim against them was dependent on a trespass claim against McClure, i.e., the person who directed the cutting cannot be held liable without a finding of the actual perpetrator’s liability. The Klingshirns rely on Pickron v. Garrett, 73 Ga. App. 61 (35 SE2d 540) (1945).

But McClure was a contractor who performed his work according to the instructions he was given.

[W]here a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner or the one who contracted for the work on the owner’s behalf, the contractor is not liable for injuries resulting from the defective design of the work.

David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990). See also Groves v. City of Atlanta, 213 Ga. App. 455, 457 (1) (444 SE2d 809) (1994) (public works project); Jasper Constr. Co. v. Echols, 198 Ga. App. 127, 128 (400 SE2d 660) (1990) (same). Instead, the contractor’s employer is liable. Id.; OCGA § 51-2-5. Further, “an unintentional and nonnegligent entry onto another’s land does not automatically subject an individual to liability even though the entry causes harm to the possessor. Brand v. Montega Corp., 233 Ga. 32 (209 SE2d 581).” C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457, 458 (1) (249 SE2d 281) (1978).

The court’s dismissal of the claims against McClure was consistent with a finding that McClure performed the contract without negligence at Khngshirn’s direction, and that as a result he entered McNeal’s land in an unintentional and nonnegligent manner. This finding does not mean that the trespass did not occur or that the Khngshirns are not liable for having directed McClure to cut the trees. Pickron v. Garrett is distinguishable in that it did not involve an employer/contractor relationship.

2. The Khngshirns contend the court’s judgment was contrary to its ruling at the close of McNeal’s case dismissing any claim for damages under a theory of trespass. However, after the court’s ruling, counsel for the Khngshirns urged the court to consider additional case law before deciding what types of damages were recoverable, and the court agreed to look at the matter more closely and stated that its rulings were subject to further research. The written order on the motions made at the end of McNeal’s case indicated that the court was reserving ruling on the Khngshirns’ motions. We see no error.

3. The Khngshirns assert there was no competent evidence to support the damage award.

If the owner sues upon the theory of a trespass to the realty, the measure of damage is the diminution in the market value of the real estate, unless the value of the trees at the time and place of their being felled, plus any incidental damage to the land itself, exceeds the diminution in the market value of the realty [,] in which event the higher measure is allowable.

Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 345 (2) (a) (63 SE 270) (1908). Accord Western &c. R. Co. v. Tate, 129 Ga. 526, 531 (5) (59 SE 266) (1907); Southern R. Co. v. Crowe, 186 Ga. App. 244, 245-246 (1) (366 SE2d 846) (1988).

The court heard evidence from McNeal on the diminution in the value of her land, expert testimony concerning the value of the lost trees, and evidence of incidental damages including the cost to remove the stumps and related work. The court chose to award the value of the lost trees plus incidental costs after determining that those damages exceeded the diminution in value of the property.

The Klingshirns argue that the damage calculation cannot be performed without evidence of the diminution in value and that McNeal’s evidence on this point was so inconsistent that it cannot be considered. “The testimony of a witness that he is familiar with the value of the item in question is sufficient foundation to allow evidence as to value.” Varnedoe v. Singleton, 154 Ga. App. 332 (268 SE2d 387) (1980); OCGA § 24-9-66. Findings by the court after a non-jury trial “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52 (a). “ ‘Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.’ ” Maynard v. State of Ga., 217 Ga. App. 344, 346 (457 SE2d 253) (1995).

On the first day of trial McNeal failed to give any testimony regarding diminution in value. McNeal closed her case that day, but the subsequent motion hearing and lengthy discussion about damages led the court to grant McNeal’s request to reopen the evidence. The case was continued for two months, and upon reconvening, McNeal testified to a loss in value as a result of the loss of trees of between $4,000 and $5,000. The fact that she had more information about the value is attributable to the two months of intervening time.

4. The Klingshirns also urge that there was no evidence of the value of the trees at the time and place of being felled as required by Milltown Lumber Co. v. Carter. Although two experts testified for the plaintiff about the value of the trees, the Klingshirns argue the experts testified about the wrong type of value, i.e., the replacement value and the shade tree value, rather than the timber value at the time the trees were cut. Compare Southern R. Co. v. Crowe, 186 Ga. App. at 245 (1) (timber value); Ga. R. cfee. Co. v. Flynt, 93 Ga. App. 514, 524 (6) (92 SE2d 330) (1956) (replacement costs are for buildings, fences and other improvements); Louisville &c. R. Co. v. Koh- Iruss, 124 Ga. 250 (52 SE 166) (1905) (value of trees goes only to diminution in property value).

Edward Macie, an employee of the United States Forest Service, was qualified as an expert in the field of urban forestry, which he defined as “the care of a multiple system of trees ... for the benefit that they serve society, particularly in an urban community.” Macie had experience determining the value of trees growing in urban and suburban environments. He was asked to conduct an appraisal of the value of the trees removed from the property. He made an appraisal of the trees “based on species, their size, their condition and their placement in the landscape.” He used a methodology prescribed by an industry group known as the Council of Tree & Landscape Appraisers. The methodology takes into account the cost of a replacement tree but also includes consideration of the size, condition and placement of the trees. Placement of the tree is a factor that includes consideration of how the tree provides separation from adjacent properties, wildlife shelter, shade, and aesthetic value. Based on this analysis, Macie valued the trees at $2,345 each or $18,800 for all eight trees. Macie also explained the difference between the value of trees in an urban or suburban environment and trees that are grown specifically for timber. On cross-examination Macie stated that some of the elements of value that he considered inure to all of society, not the tree owner per se.

Mack Harris, the owner of a tree service business, testified he had experience in “two or three cases” in placing a value on trees. He educated himself on valuing trees by reading materials obtained from the “Forest Department at Georgia University” which came from the “International Shade Tree Conference.” The court allowed Harris to testify as an expert regarding forestry, tree care, and the value of trees. Although the Klingshirns objected at trial to allowing Harris to testify as an expert, they do not enumerate that decision as error on appeal.

Harris testified that while pine trees on undeveloped land are considered timber, when they are left standing by developers in a subdivision they are considered “shade trees, screening trees, and scenic trees and no longer timber trees.” As such the trees have a higher value than when they were timber trees. He explained that based on the size, species, condition, and a constant of $9 per cross-sectional inch, he determined that the eight trees had a value of $19,240.14.

For damages arising out of trespass to property, Milltown Lumber allows recovery of the loss of valué of the real property (“diminution damages”) or “the value of the trees at the time and place of their being felled” plus incidental damage, whichever is higher. Milltown Lumber, 5 Ga. App. at 345 (2) (a). The Klingshirns contend that the “value of the trees at the time and place of their being felled” is limited to timber or market value. See id. at (2); Central R. &c. Co. v. Murray, 93 Ga. 256 (1) (20 SE 129) (1894). In short, the Klingshirns argue that Georgia law allows recovery of diminution damages or timber value plus incidentals, whichever is higher, and that restoration costs and shade tree value are irrelevant as measures of the value of a tree.

The rule allowing an injured party to recover the value of the lost trees recognizes that limiting recovery to diminution damages does not always fully compensate the landowner. See Central R. &c. Co., 93 Ga. at 256 (1) (where “there is no depreciation in the market value of the land by reason of the destruction of the timber, the measure of damages is the value of the timber destroyed in its then state as attached to the land on which it grew”); Western cfee. R. Co. v. Tate, 129 Ga. at 531 (5) (same). However, in Georgia full compensation historically has not included restoration cost or the shade tree value of trees. Although some cases have held that restoration costs or evidence of the value of trees as shade trees may be admitted, those cases explain that that evidence may be admitted only as a part of the proof of the diminution damages. Langley v. City Council of Augusta, 118 Ga. 590, 601 (12) (45 SE 486) (1903) (evidence of injury to shade trees admissible for showing diminution damages); Sims v. Majors, 178 Ga. App. 679, 680-681 (2) (344 SE2d 501) (1986) (evidence of replacement costs for trees wrongfully cut allowed to show the amount of damage caused to the real property). Thus, if the rule limits damages for injury to a tree to timber value, it benefits only those who use their land to grow and harvest timber, and not those who have a different use of a tree.

Historically, trees and other living things growing on real property are considered appurtenant thereto and have not been valued separately, but rather as part and parcel of the property. They are considered separately only when they are severed from the property as is the case with timber. Milltown Lumber, supra. However, this traditional rule does not take into account the value of trees that are not used as timber trees.

Other jurisdictions have developed various measures of damages for injury to or destruction of shade or ornamental trees or shrubs. See generally Anno., 95 ALR3d 508 (1979). Some states continue to limit recovery to diminution damages, some allow recovery of replacement or restoration costs, others allow recovery of the value of the trees or shrubs themselves, and finally, some allow recovery of the aesthetic value, “or as it is sometimes expressed, the resulting deprivation of the comfort and convenience which the trees provided the landowner.” Id. at § 2.

The Restatement (Second) of Torts supports restoration costs as a way of measuring damages in trespass for injury to trees and shrubs. We adopt a similar exception here. The relevant part of § 929 of the Restatement provides as follows:

(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for (a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred. . . .

The comments to the Restatement further explain that restoration costs disproportionate to the diminution in value are recoverable where there is “a reason personal to the owner for restoring the original condition.” Restatement 2d of Torts, § 929, Comment b.

So, when a garden has been maintained in a city in connection with a dwelling house, the owner is entitled to recover the expense of putting the garden in its original condition even though the market value for the premises has not been decreased by the defendant’s invasion.

Id.

Several courts cite § 929 of the Restatement with approval for allowing recovery of restoration costs for loss of trees under certain circumstances. See, e.g., Rector &c. of St. Christopher’s Episcopal Church v. C. S. McCrossan, Inc., 306 Minn. 143 (235 NW2d 609) (1975); Heninger v. Dunn, 101 Cal. App.3d 858, 863-864 (162 Cal.Rptr. 104) (1980); Gross v. Jackson Township, 476 A2d 974 (Pa. Super. 1984); Denoyer v. Lamb, 22 Ohio App.3d 136 (490 NE2d 615) (1984); Leavitt v. Continental Tel. Co. of Maine, 559 A2d 786 (Me. 1989); Worthington v. Roberts, 304 Ark. 551 (803 SW2d 906) (1991); Keitges v. VanDermeulen, 240 Neb. 580 (483 NW2d 137) (1992); Dixon v. City of Phoenix, 173 Ariz. 612 (845 P2d 1107) (1993); Threlfall v. Town of Muscoda, 190 Wis.2d 121 (527 NW2d 367) (1994).

These cases provide the reasons for allowing restoration costs as an exception to diminution damages or timber value.

Since [the early 1900s], courts throughout the country have placed a greater emphasis on the rights of a property owner to enjoy the aesthetic value of trees and shrubbery, notwithstanding the fact they may have little commercial value or that their destruction may, indeed, even enhance the market value of the property.

Rector, 235 NW2d at 610.

An owner of real estate has a right to enjoy it according to his own taste and wishes, and the arrangement of buildings, shade trees, fruit trees, and the like may be very important to him and the modification thereof may be an injury to his convenience and comfort in the use of his premises which fairly ought to be substantially compensated. . . . The owner of property has a right to hold it for his own use and he should be compensated for an injury wrongfully done him in that respect, although that injury might be unappreciable to one holding the same premises for purposes of sale.

(Citations, punctuation and emphasis omitted). Threlfall, 527 NW2d at 372.

To hold that appellant is without remedy merely because the value of the land has not been diminished, would be to decide that by the wrongful act of another, an owner of land may be compelled to accept a change in the physical condition of his property, or else perform the work of restoration at his own expense.

(Citation and punctuation omitted.) Heninger, 101 Cal. App.3d at 863-864. “To limit an owner to stumpage [timber value] . . . would be to enforce a timber harvest on the owner without consideration of his/her intended use and his/her real loss.” Denoyer, 490 NE2d at 620.

Recovery of restoration costs is not without limitation. Only reasonable restoration costs may be recovered, and reasonable restoration may mean using substantially similar rather than identical trees. Heninger, 101 Cal. App.3d at 865, and cases cited therein; Denoyer, 490 NE2d at 620 (limitation of reasonableness); Leavitt, 559 A2d at 788 (restoration cost must be reasonable in relation to the value of the land); Dixon, 845 P2d at 1117 (not unreasonable in relation to the damage inflicted). Section 929 of the Restatement limits recovery to “the cost of restoration that has been or may be reasonably incurred.”

We hold that a landowner whose trees or other growth has been damaged or destroyed by a trespass may recover the diminution in the market value of the property or the value of the lost trees and growth plus incidental damage, whichever is greater, and that the value of the lost trees or other growth can be measured as the cost of restoration that has been or may be reasonably incurred. Such damages may be based on the use to which the landowner puts the land.

McNeal testified that one of the reasons she bought the house was that there were trees in the yard and the property was located in a wooded subdivision. She did not want to buy property without trees, plant small trees and wait for them to grow. Several of the trees that were cut provided a visual and sound buffer from the neighboring subdivision, and after they were cut McNeal could hear more noise. She never intended to cut down these trees, and she left another side of her property in a natural state because she liked the “natural look” and because it provided a buffer between her property and another neighbor. Thus there is evidence that McNeal had a personal reason to maintain the existing trees on her property.

Decided July 14, 1999

Smith, Welch, Studdard & Brittain, Thomas B. McFarland, for appellants.

Mumford, Myers & Mooney, Albert A. Myers III, for appellee.

In this case, Edward Macie considered the cost of restoration as part of his calculation of the value of the lost trees. The court awarded less than one-third of the value proffered by Macie. The testimony was competent opinion evidence as to value, and questions of value are peculiarly for the factfinder. Millholland v. Stewart, 166 Ga. App. 431, 433 (2) (304 SE2d 533) (1983). The award was justified by the evidence.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       Compare OCGA § 51-12-50, which provides the measure of damages for conversion of timber, but not trespass to real property. Holcombe v. Jones, 197 Ga. 825, 832-833 (5) (30 SE2d 903) (1944). See also McConnell Bros. v. Slappey, 134 Ga. 95, 103-106 (8) (67 SE 440) (1910); Folds v. Reese, 140 Ga. App. 291, 292 (2) (231 SE2d 808) (1976); Milltown Lumber, 5 Ga. App. at 344-345 (l)-(3). But see Minor v. Fincher, 206 Ga. 721, 733 (6) (58 SE2d 389) (1950).


text:
    A99A0831.
    BRUMELOW v. THE STATE. BAXTER v. THE STATE.
    A99A1200.
    (520 SE2d 776)
   Johnson, Chief Judge.

Jason Brumelow, Brannon Baxter, Donald Smith and Michael Landers were indicted for various crimes arising out of a home invasion armed robbery. Landers pled guilty to the charges. Brumelow, Baxter and Smith pled not guilty and were tried before a jury. At trial, Brumelow and Baxter were represented by the same attorney while Smith had separate counsel.

After the state closed its evidence, the court directed a verdict of acquittal to Smith on all the charges, and to Brumelow and Baxter on some of the charges. The remaining charges were submitted to the jury, which found Brumelow and Baxter each guilty of three counts of aggravated assault, three counts of kidnapping, three counts of possessing a firearm during the commission of a crime, armed robbery and burglary.

Brumelow and Baxter filed separate appeals from the judgments of conviction entered on the verdicts. Because the appeals arise from the same trial, we consider them together.

Case No. A99A0831

1. Brumelow claims the court improperly forced him to voir dire potential jurors before Baxter, in contravention of an agreement between the co-defendants that Baxter would question jurors first. The claim is without merit.

The record does not contain a transcript of the voir dire, so Brumelow has improperly attempted to show that he preserved this issue for appellate review by attaching affidavits from his attorney and Baxter’s attorney to his appellate brief. “A brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party.” (Citations and punctuation omitted.) Rivers v. State, 229 Ga. App. 12, 13 (1) (493 SE2d 2) (1997).

The record before us does not show that Brumelow objected to the court’s decision regarding the order in which the parties were allowed to question the jurors. Consequently, Brumelow cannot raise this issue for the first time on appeal. “To raise an issue as to error in the conducting of the voir dire, objection must be made in the trial court to preserve the issue for appeal.” (Citation and punctuation omitted.) McKenzie v. State, 188 Ga. App. 571, 573 (2) (373 SE2d 830) (1988).

Even if the issue were properly before us, it does not provide a basis for reversing the trial court. The sole purpose of voir dire is to determine the impartiality of jurors; the control of that determination is within the sound legal discretion of the trial court, which will be upset only in the event of manifest abuse. Green v. State, 266 Ga. 237, 240 (4) (466 SE2d 577) (1996); Baker v. State, 230 Ga. App. 813, 815 (1) (b) (498 SE2d 290) (1998). The order in which Brumelow and Baxter questioned jurors was a matter fully within the court’s control, and the court did not manifestly abuse its discretion by having Brumelow’s questioning precede that of Baxter.

2. Brumelow complains that the court erred in denying his motion for a new trial because one of the jurors untruthfully indicated during voir dire that he did not know one of the victims. At the motion for new trial hearing, the juror testified that he and the victim had gone to grade school together, but he had not seen the victim for many years and they are not now friends. The juror testified that during voir dire he did not recognize the victim’s name, but later recognized the victim during his trial testimony. The juror averred that having known the victim many years ago did not influence his verdict.

In order to obtain a new trial in this circumstance, the defendant must show that the juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.

(Citation and punctuation omitted.) Poole v. State, 262 Ga. 668, 670 (2) (424 SE2d 275) (1993). Brumelow is unable to make either of these required showings.

First, the juror was mistaken, not dishonest, when he indicated during voir dire that he did not know the victim; he simply did not recognize the name of someone he had gone to school with many years ago. Second, even if the juror’s mistaken response amounted to dishonesty, Brumelow could not further show that a correct response would have provided a valid basis for a challenge for cause. Merely knowing the victim is not a sufficient ground to strike a juror for cause. Cammon v. State, 269 Ga. 470, 473 (4) (b) (500 SE2d 329) (1998). Thus, the juror’s mere acquaintance with the victim from school would not have been a valid basis for Brumelow to challenge the juror for cause. See generally Waddell v. State, 224 Ga. App. 172, 175 (3) (b) (480 SE2d 224) (1996); Munn v. State, 208 Ga. App. 674 (1) (431 SE2d 447) (1993). The trial court did not err in denying Brumelow a new trial on this ground. See Poole, supra.

3. Brumelow argues the court erred by interjecting objections to his cross-examination of one of the victims. The argument misconstrues what actually took place. The court did not object to Brumelow’s questioning, but instructed him outside the presence of the jury to follow proper procedures in attempting to impeach the witness with a prior inconsistent statement or a prior conviction.

It is the duty of the trial court to control the trial of the case and to insure a fair trial to both sides. Sometimes this requires interference by the court with the conduct of counsel or with a witness in the trial. The trial judge has broad discretion in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness.

(Citations and punctuation omitted.) Najmaister v. State, 196 Ga. App. 345, 347 (2) (396 SE2d 71) (1990).

In the instant case, the court’s instruction that Brumelow follow proper impeachment methods was certainly an appropriate exercise of discretion in controlling the trial and was not unfair or prejudicial to Brumelow. See Gilbert v. State, 208 Ga. App. 258, 265 (5) (430 SE2d 391) (1993); Westerfield v. State, 176 Ga. App. 195, 197-198 (3) (b) (335 SE2d 702) (1985) (physical precedent). We find no error.

4. Brumelow argues the court erred in admitting into evidence his statements to a federal agent and a Paulding County detective. Although not clearly articulated, it appears Brumelow is contending that his waiver of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), was not knowing and voluntary because those rights were read to him by the federal agent investigating federal crimes, rather than by the county detective investigating the crimes at issue in this case. The contention is unpersuasive.

A suspect’s awareness of all the crimes he is to be questioned about is not relevant to the issue of whether the suspect’s waiver of his Miranda rights was knowing and voluntary. Peebles v. State, 260 Ga. 430, 431 (1) (396 SE2d 229) (1990); Peebles v. State, 196 Ga. App. 176, 177 (1) (a) (395 SE2d 640) (1990). Thus, the mere facts that the federal agent investigating federal crimes informed Brumelow of his rights and had Brumelow sign a federal waiver of rights form are completely irrelevant to the knowing and voluntary nature of his waiver and statements concerning the state crimes involved in this case. See generally Vaughan v. State, 210 Ga. App. 381, 383 (3) (a) (1) (436 SE2d 19) (1993).

Moreover, the county detective testified at the hearing on the admissibility of the statements that he told Brumelow he was investigating the home invasion armed robbery. Thus, it appears that Brumelow was in fact informed of the incident at issue in this case prior to making his statements. Given that Brumelow was fully informed of his rights and that he then signed a form waiving those rights, the trial court correctly found that Brumelow’s statements were made knowingly and voluntarily. See Brown v. State, 225 Ga. App. 201, 202 (2) (483 SE2d 641) (1997); Peebles, supra.

Case No. A99A1200

5. Baxter contends his trial counsel was ineffective in failing to object to the following testimony from a detective that placed his character in issue: that when Baxter and Brumelow were arrested, drugs and a weapon were found in their possession, that Baxter told the detective the weapon was related to a burglary, and that Baxter stated the weapon he used in the home invasion was stolen.

“To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. [Cits.]” Jones v. State, 236 Ga. App. 716, 718 (3) (513 SE2d 254) (1999). Baxter can show neither deficiency nor prejudice based on trial counsel’s decision not to object to the detective’s testimony.

The decision not to object was not deficient because the detective’s testimony was admissible. The state may inform the jury of all the circumstances surrounding the commission of the crimes charged. Ramsey v. State, 233 Ga. App. 810, 812 (2) (505 SE2d 779) (1998). Additionally, all of the circumstances surrounding an arrest are admissible for whatever value the jury wants to place on them. Samples v. State, 234 Ga. App. 8, 10 (1) (a) (505 SE2d 813) (1998). And statements made by an accused at the time of arrest are admissible. Hearst v. State, 212 Ga. App. 492, 496 (2) (b) (4) (441 SE2d 914) (1994). Thus, the detective’s testimony regarding the arrest and Baxter’s statements about the arrest and the home invasion was admissible.

Moreover, even if the testimony impermissibly placed Baxter’s character in evidence, Baxter has failed to meet his burden of affirmatively rebutting the presumption that counsel’s decision not to object was a matter of trial strategy, i.e., intentionally avoiding an objection which would draw the jury’s attention to the witness’ statement. See Smith v. State, 234 Ga. App. 586, 589 (1) (a) (ii) (506 SE2d 406) (1998).

Finally, “we find no reasonable probability that the outcome of the trial would have been different had counsel objected to the detective’s testimony. . . . [Cit.]” Jones, supra. Thus, any deficiency by counsel did not prejudice Baxter. Because the trial court’s finding that Baxter was not denied effective assistance of counsel is not clearly erroneous, we must affirm it. See Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

6. Baxter claims he received ineffective assistance of counsel because his trial attorney had a conflict of interest in representing both him and Brumelow. Baxter, however, waived any conflict of interest claim in the trial court.

Before trial, both Baxter and Brumelow confirmed to the court that they had discussed the case with their attorney, that there was no conflict between them and that they had no objection to the attorney representing them both. Where defendants state on the record that they have discussed the case with counsel, that there is no conflict of interest and that they are satisfied to proceed with one counsel, any error was induced by the defendants’ statements, and induced error is impermissible. Pittman v. State, 208 Ga. App. 211, 217 (5) (430 SE2d 141) (1993). “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (Citations and punctuation omitted.) Sartin v. State, 223 Ga. App. 759, 760 (1) (479 SE2d 354) (1996). Because Baxter waived a conflict of interest claim prior to trial, he cannot now complain of such conflict. See Howard v. State, 220 Ga. App. 267, 271-272 (4) (469 SE2d 396) (1996).

7. Baxter argues his right to be present at all stages of his trial was violated when the court and his attorney discussed the conflict of interest issue in Baxter’s absence. The argument is without merit.

The discussion Baxter complains of took place more than a month before trial during a hearing on co-defendant Smith’s motion to sever his trial from that of Baxter and Brumelow. Baxter’s attorney was present in the courtroom simply to observe, not participate in, the hearing. The judge, who is not the same judge who presided over the actual trial, asked the attorney whom he represented. The attorney said he represented Baxter and Brumelow. The judge then asked if there was a conflict between them, and the attorney stated there was no conflict and even if there was, they had waived it. The court then made no further comment to the attorney on the matter and proceeded with the hearing on the motion to sever.

The discussion in question was not a critical stage of Baxter’s trial at which he had an absolute right to be present, but was merely an extremely brief and informal colloquy, which took place over a month before trial at a hearing on a co-defendant’s motion, and which invoked no ruling by the court. See Smith v. State, 209 Ga. App. 699, 700 (1) (434 SE2d 528) (1993); Stone v. State, 177 Ga. App. 750, 751 (1) (341 SE2d 280) (1986). We find no error requiring a reversal of Baxter’s convictions based solely on his absence from that colloquy. See generally Bowden v. State, 202 Ga. App. 802, 803 (1) (415 SE2d 527) (1992) (physical precedent) (see also Beasley, J., concurring specially); Bishop v. State, 179 Ga. App. 606, 609 (2) (347 SE2d 350) (1986).

8. Baxter complains the court erred in limiting his recross-examination of a state witness about a prior statement by the witness concerning the type of gun Baxter had possessed. “The trial court has discretion to limit the scope of recross-examination, which is not intended for the introduction of new matter. [Cit.]” Scott v. State, 227 Ga. App. 900, 902 (4) (d) (490 SE2d 208) (1997). The court did not abuse its discretion in prohibiting Baxter from questioning the witness about the statement as being beyond the scope of the redirect examination. See Moss v. State, 196 Ga. App. 81, 83-84 (4) (395 SE2d 363) (1990).

Furthermore, before the court’s ruling Baxter actually questioned the witness about his prior statement, and the witness admitted that his trial testimony that Baxter had possessed a .38 caliber gun differed from his prior statement to police that Baxter had possessed a .25 caliber gun.

Where the subject matter of the alleged curtailed cross-examination has been successfully explored and answered by a witness, the trial judge does not unduly limit a defendant’s right to a thorough and sifting cross-examination by refusing to allow it to be repeated or explored further.

Decided July 14, 1999.

Edward T. Murray, for appellant (case no. A99A0831).

Gammon & Anderson, W. Wright Gammon, Jr., for appellant (case no. A99A1200).

James R. Osborne, District Attorney, Todd C. Alley, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Holder v. State, 194 Ga. App. 790, 794-795 (6) (391 SE2d 808) (1990). Here, the trial court did not unduly limit Baxter’s right to recross-examine the witness because the matter had already been fully explored.

Judgments affirmed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A1043.
    STRAWSER v. THE STATE.
    (520 SE2d 750) ■
   Johnson, Chief Judge.

Charles Strawser was convicted of driving while under the influence of alcohol. He appeals, contending the trial court erred in denying his motion to suppress because there was no reasonable, articulable suspicion justifying the stop of his car. We agree and reverse.

In reviewing a trial court’s ruling on a motion to suppress, this court construes the evidence most favorably to uphold the findings and judgment of the trial court. Pickens v. State, 225 Ga. App. 792 (1) (484 SE2d 731) (1997). So construed, the evidence shows that a police officer was dispatched to pick up a mother and daughter who were out walking in Warner Robins just before midnight. The mother, who was Strawser’s wife, was crying and told the officer that she and the child left Strawser’s mother’s home after arguing with Strawser. The argument was verbal and did not involve any physical altercation or violence. She did not tell the officer what the argument was about, just that she wanted to go home. The officer drove Strawser’s wife back to her mother-in-law’s residence to get her belongings. Strawser was not there at the time, having left to find his wife and daughter.

A second officer arrived, and while the officers and Strawser’s family were standing outside the home, a truck came down the street. Strawser’s wife told the officers that Strawser was driving the truck. Strawser drove past the house, around the cul-de-sac, and past the house again. The officers did not see Strawser commit any traffic violations, but thought it was “odd” that Strawser did not stop at his mother’s house to check on his wife and daughter. One of the officers followed and then stopped Strawser to “get his side of the story.” He asked Strawser why he did not stop at his mother’s house. Strawser replied that he did not stop because he did not want to be arrested for DUI. The officer administered field sobriety tests and then placed Strawser under arrest for DUI.

Decided July 14, 1999.

Gregory W. Holt, Laurens C. Lee, for appellant.

A. Robert Tawse, Jr., Solicitor, for appellee.

Strawser moved to suppress evidence obtained as a result of the traffic stop. In denying Strawser’s motion to suppress, the trial court remarked that there was “obviously no criminal activity on the part of [Strawser],” but that the stop was justified because the officers needed to investigate and resolve the domestic dispute.

In determining whether evidence discovered as a result of a traffic stop should be suppressed, we consider the following:

An officer may conduct a brief investigative stop of a vehicle only when such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.

(Citation and punctuation omitted.) State v. Templeman, 229 Ga. App. 6, 7 (492 SE2d 902) (1997).

In this case, the officers articulated no facts supporting a suspicion that Strawser was committing or was about to commit any crime when he drove past his mother’s house without stopping. In fact, neither officer testified that they even suspected Strawser was committing or was about to commit any crime, traffic or domestic. As to Strawser’s manner of driving, the officer who stopped Strawser testified that he saw Strawser do nothing wrong. The officer also testified that he did not believe the dispute involved family violence; he agreed that had it been a family violence situation, he would have had probable cause to arrest Strawser without getting “his side of the story.” Under the circumstances presented here, the trial court erred in finding that the stop was justified. See Templeman, supra; Oboh v. State, 217 Ga. App. 553, 555 (458 SE2d 177) (1995).

Judgment reversed.

Smith and Eldridge, JJ, concur.


text:
    A99A1556.
    CORNELL v. THE STATE.
    (520 SE2d 782)
   Johnson, Chief Judge.

Scott Cornell appeals from his convictions of driving under the influence of alcohol and driving without headlights.

1. Cornell argues the trial court erred in limiting an expert witness’ testimony regarding substances in paint fumes that may have interfered with Cornell’s breath test result, which showed that he had a 0.157 alcohol concentration. The argument is without merit.

At trial, Cornell presented the owner of a body shop who testified that Cornell had spent the day of his DUI arrest in the body shop while the owner spray-painted a car. The witness testified that Cornell must have inhaled toluene, a substance contained in the paint, which has a strong odor and which the witness smelled that day. The body shop owner did not identify any other substance in the paint.

Thereafter, Cornell presented an expert to testify about the effect of inhaling paint fumes on breath tests. The court ruled that the expert could testify only about the effect of toluene because, based on the shop owner’s testimony, that was the only substance proven to have been present in the paint to which Cornell was exposed. Cornell claimed that certain documents showed that other chemicals, in addition to toluene, were contained in the paint. The court ruled, however, that those documents had not been admitted into evidence.

Cornell has not cited any page in the record where the documents were admitted into evidence. Further, our review of the trial transcript reveals that, although Cornell had the documents labeled as a defense exhibit, he conceded that he had not laid a proper foundation for their admission and they were never actually admitted into evidence.

“For an expert to give his opinion based upon a certain state of facts, those facts must be supported by evidence admitted into the record. [Cit.]” Columbus v. State, 270 Ga. 658, 666 (5) (513 SE2d 498) (1999). Because the documents upon which Cornell relied were never admitted into evidence, they did not provide a basis for the expert to give'an opinion about the effect of substances other than toluene on Cornell’s breath test. “Not even an expert can give an opinion based entirely upon reports which have been prepared by others and which are not in evidence.” (Citation and punctuation omitted.) Leonard v. State, 269 Ga. 867, 871 (3) (506 SE2d 853) (1998). Absent evidence of any substance in the paint other than toluene, the court correctly limited the expert’s opinion testimony to that substance. Compare generally Taylor v. State, 190 Ga. App. 79, 80-81 (378 SE2d 335) (1989) (expert testified as to chemical composition of paint where manufacturer specifications of paint admitted into evidence).

Decided July 14, 1999

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

G. Channing Ruskell, Solicitor, for appellee.

2. Cornell challenges the trial court’s jury charge that if Cornell had 0.05 grams or less of alcohol in his blood there is a presumption that he was not under the influence of alcohol, but this presumption may be rebutted. Cornell contends the statement that the presumption may be rebutted improperly shifted the burden of proof to him. We fail to see how the statement was burden shifting.

On the contrary, the charge was a correct statement of the law pursuant to OCGA § 40-6-392 (b) (1), which provides: “If there was at that time an alcohol concentration of 0.05 grams or less, it shall be presumed that the person was not under the influence of alcohol.” Moreover, this presumption is not mandatory, but may be rebutted by the state.

It is clear that OCGA § 40-6-392 (b) (1) creates a rebuttable negative presumption in criminal actions arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391. In such cases, there is a presumption that the defendant was not under the influence of alcohol, which negative presumption must be rebutted by the State’s production of such other probative evidence as will authorize a finding that the defendant was nevertheless a less safe driver as the result of his alcohol consumption.

(Punctuation omitted.) Collum v. State, 195 Ga. App. 42, 44 (2) (392 SE2d 301) (1990). Consequently, the trial court’s jury charge in the current case that the presumption arising from an alcohol concentration of 0.05 or less is rebuttable was correct and did not shift the burden of proof to Cornell.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A99A0261.
    RUPERT v. THE STATE.
    (520 SE2d 695)
   Ruffin, Judge.

A jury found Curly Rupert guilty of aggravated assault in the shooting of Randy Mote. Rupert appeals, contending that the trial court erred in allowing the introduction of character evidence and improper impeachment evidence. For reasons which follow, we affirm.

Zealpha Rupert, the defendant’s wife, worked for the Georgia Building Authority. Randy Mote also worked for the Georgia Building Authority, but earned additional money doing odd jobs for coworkers and their family members. On several occasions, Mote worked for the Rupert family. The defendant knew Mote who, a few weeks before the shooting, had painted Rupert’s bedroom. On April 6, 1996, Zealpha hired him to paint their kitchen.

After meeting at Home Depot, Zealpha and Mote returned to the Ruperts’ house, and Mote began painting the kitchen. Shortly thereafter, Rupert returned home. According to his wife, he had been drinking and “was staggering, holding to the wall.” Rupert went into a bedroom and came out approximately one hour later. There was conflicting testimony regarding what transpired next.

According to Mote, Rupert shot him in the leg, then accused him of being a burglar. Mote then grabbed a hammer from the dining room table and began hitting Rupert.

Zealpha, on the other hand, testified that her husband told Mote to leave and that when he did not comply, Rupert shot him in the leg. According to Zealpha, Rupert then turned and shot her in the leg. Zealpha claims that she tried to take the gun away from Rupert and that she asked Mote for help, at which time Mote began hitting Rupert with a hammer.

Rupert, testifying on his own behalf, claimed Zealpha and Mote were involved in an illicit relationship. According to Rupert, several weeks before the shooting, he had caught the two naked in his bedroom in flagrante delicto. Thus, when he saw Mote at his house on April 6, he asked him to leave. Rupert testified that Mote then came toward him with a hammer, and he shot Mote. Rupert further testified that he and his wife began fighting over the gun, at which point both Rupert and Zealpha were shot in the leg. Rupert stated that he had not been drinking the day of the shooting.

Zealpha, Mote and Rupert were taken to Grady Hospital, where Detective Wright of the DeKalb County Police Department attempted to interview them. Although Wright was able to take statements from Zealpha and Mote, he did not attempt to interview Rupert because of the “very strong odor of alcohol” about him and because of his injuries.

1. In his first enumeration of error, Rupert contends the trial court erred in allowing the State to introduce evidence of his use of alcohol. According to Rupert, the testimony of his wife and children regarding his chronic drunkenness placed his character in evidence. This claim of error lacks merit.

(a) First, Rupert complains that the trial court erred in admitting his wife’s testimony. Zealpha’s testimony regarding her husband’s drinking was as follows:

“Q: How would you describe your husband’s health? A: Bad. Go to the doctor regular, for alcoholic.” Rupert did not object to this testimony.

“Q: What does [Rupert] do while he is at home, do you know? A: Sit around, drink all day.” Rupert objected to this testimony on the grounds that Zealpha was out of the house during the day and, thus, had no basis for knowing what Rupert did.

“Q: When you come home, back when you and [Rupert] were living together, when you would come home and [Rupert] was staying at home, what condition would you find [him] in?” Rupert objected to this question on the grounds that it was too broad. The trial court overruled the objection, and Zealpha responded that Rupert would be “A: Drunk, laying on the floor, halfway out of the bed sometime.” Rupert did not object to Zealpha’s response, and the State continued to question her about his drinking, asking

Q: Would he have bottles of alcohol at the house?
A: All the time.
Q: What kind of alcohol was he drinking?
A: Any kind. All kind.
Q: Was he drunk every day?
A: Not drunk, drunk, but high drunk.
Q: Did he, to your knowledge, drink every day?
A: Every day.
Q: When you were home on the two days that you were off [from work], describe for the ladies and gentlemen of the jury what [Rupert] would do during that time that you were home?

At this point, Rupert objected to the State’s question, arguing that it went to his character. However, the question did not specifically refer to alcohol use. The trial court overruled the objection, stating that the prosecutor “can ask that.” The State asked the question a second time, and Zealpha responded that Rupert would

A: Just lay around the house drunk.
Q: Would he drink in the morning?
A: Morning to night. I get up, cut the grass, he still in the house laying out. Did all the work. He was in the house drinking.
Q: This — did this go on during the entirety of the 27 years you have been with [Rupert]?
A: No. About the last, probably last five years.
Q: Last five years it’s gotten worse?
A: Got worse.

Rupert objected to the State’s question on the grounds that it was leading, and the trial court sustained the objection.

Pretermitting whether the trial court erred in admitting this testimony, Rupert waived the error by failing to timely object. “It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.” Anthony v. State, 236 Ga. App. 257, 259 (511 SE2d 612) (1999). Although Rupert made one, belated objection to a question based on character, the objection was not made until after evidence of his drinking had been admitted without objection. Accordingly, Rupert has waived this objection. See Matthews v. State, 221 Ga. App. 129-130 (1) (470 SE2d 518) (1996). To the extent that Rupert objected on grounds other than character, his objections do not preserve the character issue for appellate review. Howard v. State, 233 Ga. App. 724, 729 (5) (505 SE2d 768) (1998). “Because [Rupert] failed to specifically object to the evidence on the ground that it impermissibly placed his character in issue, he may not raise that objection for the first time on appeal.” (Punctuation omitted.) Id.

(b) Rupert also contends that the trial court erred in admitting into evidence the rebuttal testimony of his two children. After Rupert testified without objection that, prior to April 6,1996, he did not have a problem with alcohol, did not drink excessively, and did not get drunk, the State called his two children, who testified that their father was drunk virtually every day from January through April 1996. Contrary to Rupert’s contention, the trial court properly admitted this testimony to impeach Rupert’s statements on direct and cross-examination. Cook v. State, 226 Ga. App. 113, 115-116 (3) (485 SE2d 595) (1997).

2. In two enumerations of error, Rupert asserts that the trial court erred in allowing improper impeachment evidence and in failing to grant a mistrial after the prosecutor attempted to impeach him by cross-examining him about a prior DUI conviction. Rupert objected to the State’s line of questioning on this DUI conviction because it placed his character into evidence and because the State did not have a certified copy of the conviction.

Contrary to Rupert’s contention, the trial court did not permit the State to impeach him regarding his prior DUI conviction. Rather, the trial court sustained Rupert’s objection to the State’s questioning based upon the absence of a certified copy of the conviction and instructed the jury to disregard any testimony regarding the DUI conviction. As we said in Wofford v. State, 234 Ga. App. 316 (506 SE2d 656) (1998),

Decided June 29, 1999

Reconsideration dismissed July 15, 1999

Cynthia A. Price, for appellant.

Curly Rupert, pro se.

J. Tom Morgan, District Attorney, Jennifer M. Daniels, Robert M. Coker, Assistant District Attorneys, for appellee.

[t]he extent of a[n] . . . instruction is within the discretion of the court, and when the improper remarks are cured by timely corrective action calculated to preserve the defendant’s right to a fair trial, then we cannot say that the court abused its discretion in refusing to grant a mistrial.

(Punctuation omitted.) Id. at 318 (4). Accordingly, Rupert’s claim of error on this point lacks merit.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       The jury acquitted Rupert in the shooting of his wife, Zealpha Rupert.

       Both Zealpha and Mote denied having an affair.


author: McMurray, Presiding Judge.

text:
    A99A1263.
    BUTURA v. THE STATE.
    (519 SE2d 18)
   McMurray, Presiding Judge.

Defendant John loan Butura, also known as “Ivon” and co-indictee, W. S., age 14 at the time of the offenses, were charged with attempted armed robbery (criminal attempt to commit armed robbery) and also with aggravated assault. Viewed in the light most favorable to support the jury’s verdicts, the evidence shows that on June 28, 1996, defendant and his 14-year-old brother-in-law, W S., entered Dennis’ Pawn Shop in LaGrange, Georgia. Jerry Dennis (“the victim”), recalled that W. S. initially “walked in . . . wanting] to look at some speakers and stereo equipment.” W S. “asked [the victim] about stuff in the jewelry counter,” causing the victim to turn in W. S.’s direction. “About that time [the victim] felt somebody mash up against [his] back. . . .” The victim turned and saw defendant standing behind him holding a handgun.

Defendant said: “Don’t move,” and the victim responded by saying: “Man, you’re not going to take everything I’ve been over here working for.” The victim grabbed at defendant’s gun, and in the struggle that ensued, the weapon discharged, wounding the victim. Using a gun kept behind the counter, the victim fired four times at defendant and W. S. as they fled the pawn shop. W. S. was wounded in the arm, and went to East Point to get medical treatment. There, both defendant and W. S.’s sister explained the wound to police as having been inflicted by “two guys” from behind. The State introduced defendant’s custodial statement, wherein he admitted discussing the instant attempt to commit armed robbery and participating in it. In a subsequent statement and at trial defendant asserted self-defense.

The trial involved defendant Butura only and the jury found him guilty as charged. He appeals from the trial court’s denial of his motion for new trial. Held:

1. The sole enumeration of error urges the insufficiency of the evidence to support the verdicts.

“A person commits the offense of aggravated assault when he . . . assaults . . . [w]ith a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). “The act of intentionally firing a gun at another, in the absence of justification, is sufficient to support a conviction for aggravated assault under this statute. Steele v. State, 196 Ga. App. 330, 331 (2) (396 SE2d 4).” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

Hawkins v. State, 230 Ga. App. 627, 630 (3) (497 SE2d 386).

In the case sub judice, the victim’s testimony identifying defendant as the shooter is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of the offense of aggravated assault as alleged in Count 2 of the indictment. Hawkins v. State, supra.

2. The State’s evidence, including defendant’s statement as corroborated by the victim’s testimony, was also sufficient to establish defendant’s guilt, beyond a reasonable doubt, of attempted armed robbery (criminal attempt to commit armed robbery) as alleged in Count 1 of the indictment. Walker v. State, 193 Ga. App. 446 (388 SE2d 44). See also In the Interest of A. D. C., 233 Ga. App. 73, 74 (503 SE2d 334).

Judgment affirmed.

Andrews and Ruffin, JJ., concur.

Decided June 1, 1999

Reconsideration denied July 15, 1999.

Alfred F Zachry, for appellant.

John I. Butura, pro se.

Peter J. Skandalakis, District Attorney, Hope F. Smelcer, Assistant District Attorney, for appellee.


author: Barnes, Judge.

text:
    A97A2191.
    ROWE v. COFFEY.
    (519 SE2d 307)
    Decided July 15, 1999.

      Evans & Evans, Larry K. Evans, Samuel F. Greneker, Barry R. Chapman, for appellant.

      Long & Denton, Allen D. Denton, Chambless, Higdon & Carson, Thomas F. Richardson, Jon C. Wolfe, Freeman, Mathis & Gary, Theodore Freeman, Dana K. Maine, Hollberg, Weaver & Kytle, George M. Weaver, for appellee.
   Barnes, Judge.

In Coffey v. Brooks County, 231 Ga. App. 886 (1) (500 SE2d 341) (1998), we affirmed the trial court’s grant of summary judgment to all defendants except Rowe. After granting certiorari, the Supreme Court reversed our judgment to the extent we reversed the grant of summary judgment to Rowe. Rowe v. Coffey, 270 Ga. 715 (515 SE2d 375) (1999).

Accordingly, the portion of our opinion which reversed the grant of summary judgment to Rowe is vacated, the judgment of the Supreme Court with regard to Rowe is made the judgment of this Court, and the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Ruffin and Eldridge, JJ, concur.


author: Smith, Judge. Eldridge, Judge,

text:
    A99A0040.
    SCHRADER v. KOHOUT.
    (522 SE2d 19)
   Smith, Judge.

This case arises out of the denial of a motion for summary judgment by Sue Schrader in a medical malpractice action filed against her by Kim Kohout. For the reasons that follow, we reverse.

Kim Kohout filed her initial complaint against Schrader and several other defendants, alleging that they negligently provided psychological care and treatment to her. In a much expanded amended complaint in which Kohout named several new defendants, she alleged that “Schrader violated the duty which she owed to Plaintiff to exercise the ordinary care and diligence which a reasonable and prudent psychologist supervising a nonmedical therapist would have used in the same or similar circumstances.” Schrader filed a motion for summary judgment. She argued, among other things, that she did not have a professional relationship with Kohout, did not perform any professional services for her, and therefore owed Kohout no legal or professional duty. The trial court denied the motion, but granted a certificate of immediate review. This court granted Schrader’s application for interlocutory appeal. Because we agree with Schrader that no physician-client relationship existed between her and Kohout, we reverse.

Kohout, who had a history of psychological problems, began treatment with Dr. Donna Ulrici, a psychologist, in 1990. Ulrici diagnosed Kohout as suffering from “Multiple Personality Disorder.” A short time later, Ulrici began consulting with Schrader, another psychologist, concerning Kohout’s condition because of Schrader’s “expertise in dissociative disorders.” These consultations began in May 1991, and they ended in December 1995. Schrader met with Ulrici individually during the first four consultations, while the remainder were group consultations that included approximately five other psychotherapists. Ulrici paid a fee to Schrader for the consultations, and it appears that Kohout’s condition and treatment options were discussed extensively during the sessions, which occurred bi-monthly and lasted two hours each. We also note that both Schrader and Ulrici referred to the consultations occasionally as “supervision” groups in their notes and that the trial court, in its order denying summary judgment, referred to the group as a “ ‘supervision consultation group.’ ”

The extensive nature of the consultations concerning Kohout’s condition and the occasional references to the consultation groups as “supervision groups” notwithstanding, we agree with Schrader that summary judgment on her behalf was warranted.

Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action.

It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of [a] physician-patient relationship. ... In such cases, called classic medical malpractice actions, doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.

(Citations and punctuation omitted.) Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319) (1988). See also Payne v. Sherrer, 217 Ga. App. 761, 762-763 (458 SE2d 916) (1995); Minster v. Pohl, 206 Ga. App. 617 (426 SE2d 204) (1992).

It is true that Schrader consulted with Ulrici, for compensation, about Kohout’s condition for over four years. But these facts did not automatically create a physician-patient relationship between Schra-der and Kohout. The record shows that the fee was paid personally by Ulrici, and Kohout has pointed to no evidence showing that she was charged for Schrader’s services. More importantly, it is undisputed that Schrader never met Kohout and never saw her records during the consultation period, and Kohout’s identity was not disclosed, except for her first name, during this period. Additionally, the undisputed evidence shows that Schrader had no authority with regard to Ulrici’s treatment of Kohout. Ulrici testified by affidavit that “[a]t all times, my treatment of plaintiff . . . was conducted independently under the authority of my license as a clinical psychologist. Although I did discuss psychotherapy techniques relating to MPD with Dr. Schrader, I always maintained the independent authority and responsibility in regard to the treatment of my patient.” Although the consultation group attended by Ulrici was occasionally referred to as a “supervision” group, and Schrader may have occasionally been referred to as Ulrici’s “supervisor,” both Ulrici and Schrader have provided direct, undisputed, unequivocal evidence that Schrader never supervised Ulrici’s treatment of Kohout.

Under these facts, we cannot conclude that Kohout has shown the essential element of physician-patient privity. Schrader never examined Kohout and never even met with her. Schrader never saw Kohout’s medical records during the consultation period. Although Kohout may have known that Ulrici was consulting with Schrader, the record does not show that the relationship between Schrader and Kohout was one in which the “patient knowingly [sought] the assistance of the physician and the physician knowingly accepted] [her] as a patient.” (Citation and punctuation omitted.) Peace, supra at 698 (1). Moreover, although Ulrici unquestionably consulted with Schra-der for an extended period of time, nothing in the record justifies an inference that Schrader ever acted as Kohout’s doctor. See Minster, supra at 620 (1). Because Schrader was never privy to Kohout’s medical records, it follows that Ulrici controlled the flow of information to Schrader about Kohout’s condition; she at all times made decisions as to the extent and type of information about Kohout she shared with Schrader. Most importantly, although Kohout’s condition may have been extensively discussed by Ulrici and Schrader, Ulrici made all decisions as to Kohout’s treatment. A physician-patient relationship did not exist between Schrader and Kohout under these facts. Accordingly, summary judgment in Schrader’s favor was warranted.

We note that the dissent cites several cases from other jurisdictions for the proposition that a physician-patient relationship was created in this case. Aside from the fact that these cases are not binding on the courts of this state, several of the cases do not support the dissent’s position in this case. For example, the dissent cites a passage from Corbet v. McKinney, 980 SW2d 166 (Mo. App. 1998) to support its conclusion that Schrader can be subject to Kohout’s malpractice action despite the fact that she never had direct contact with Kohout. In Corbet, the Missouri Court of Appeals ultimately held that the secondary physician’s consultation with the patient’s primary care physician did not establish the requisite physician-patient relationship giving rise to a duty of care.

Furthermore, both McKinney v. Schlatter, 118 Ohio App.3d 328 (692 NE2d 1045, 1050) (1997) and Walters v. Rinker, 520 NE2d 468, 472 (Ind. App. 1988), both cited by the dissent, are factually distinguishable from the case at hand. In McKinney, a malpractice claim was allowed against a cardiologist who was officially the “on call” cardiologist for a hospital emergency room at the time that the patient was brought in. Although the cardiologist was not present at the hospital, he was consulted by an attending physician who described the patient’s condition. In McKinney the malpractice claim was allowed because the cardiologist, as the on-call cardiologist, had accepted primary responsibility and control of cardiac care for emergency room patients.

Rinker, supra, can be similarly distinguished from this case. In Rinker, a patient was allowed to bring a medical malpractice action against a pathologist for misdiagnosis of a tumor removed from the patient’s. body. As in McKinney, the pathologist in Rinker had accepted direct responsibility and control for one aspect related to the patient’s treatment, the analysis of the plaintiff’s tumor. The pathologist was the primary physician with regard to the critical determination of the tumor’s malignancy.

No acceptance of direct responsibility and control exists in this case. Here, Schrader and several other psychologists joined in a discussion of various cases of the involved psychologists, including Kohout’s case. Schrader gave advice on Kohout’s treatment to a fellow psychologist. She was under no obligation to the patient to do so, and unlike McKinney and Rinker never assumed control of the psychological care of Kohout. As such, Schrader cannot be considered to have been in a psychologist-patient relationship, as the dissent contends.

We note that Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), relied upon by the trial court, is inapposite here. The Supreme Court of Georgia in that case addressed the issue of the duty imposed on a mental health hospital to exercise control over a patient who was shown to be likely to cause harm to others. Here, the record shows that Schrader did not “control” Kohout, and the contention has not been made that Schrader was liable for bodily harm caused by Kohout to others.

Judgment reversed.

Johnson, C. J., Blackburn, R J., Barnes and Ellington, JJ, concur. Pope, P. J., and Eldridge, J., dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent.

In her professional capacity as a psychologist, and for compensation, the defendant rendered professional advice, counsel, evaluation, assistance, and insight into the care, treatment, and evaluation of the plaintiff continuously for over four and one-half years. She knew or should have known that her advice and professional counsel would have an effect on the treatment of the plaintiff. While defendant did not know the identity of the plaintiff, defendant knew that she had an influence and effect through her professional advice upon the treatment of a real person, the plaintiff. Defendant, through the bimonthly consultations for compensation, participated in the treatment of the plaintiff vicariously, through Dr. Ulrici.

Where a professional for compensation provides consultations regarding the care and treatment of a specific individual, a patient-psychologist relationship has been legally created with such individual, so that a malpractice action may be maintained, even though there has been no direct contact or examination of the records, reports, or tests. “Where the consultant physician does not physically examine or bill the patient, a physician-patient relationship can still arise where the physician is contractually obligated to provide assistance in the patient’s diagnosis or treatment and does so.” (Citation omitted.) Corbet v. McKinney, 980 SW2d 166, 169 (Mo. App. 1998).

A physician-patient relationship is created by implication between a patient and an on-call physician, who is consulted by the patient’s physician but who has never met or consulted with either the other physician or his patient previously, when the on-call physician “(1) participates in the diagnosis of the patient’s condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff, or patient for whose benefit he is on call.” McKinney v. Schlatter, 118 Ohio App.3d 328 (692 NE2d 1045, 1050) (1997).

When a physician consults at the request of another physician without seeing the patient face to face, as in the case of a pathologist, radiologist, or other specialist, an implied consent results. “The important fact in determining whether the relationship is a consensual one, however, is not who contracted for the service but whether it was contracted for with the express or implied consent of the patient or for his benefit.” Walters v. Rinker, 520 NE2d 468, 472 (Ind. App. 1988); accord Bovara v. St. Francis Hosp., 298 111. App.3d 1025 (700 NE2d 143) (1998); Dougherty v. Gifford, 826 SW2d 668, 674-675 (Tex. App. 1992); Peterson v. St. Cloud Hosp., 460 NW2d 635 (Minn. App. 1990); Phillips v. Good Samaritan Hosp., 65 Ohio App.2d 112 (416 NE2d 646) (1979).

A casual consultation, even when it directs a course of treatment, does not give rise to a physician-patient relationship, because the elements of implied physician-patient relationship are absent. Minster v. Pohl, 206 Ga. App. 617, 620 (2) (426 SE2d 204) (1992); accord Oja v. Kin, 229 Mich. App. 184 (581 NW2d 739) (1998); Oliver v. Brock, 342 S2d 1 (Ala. 1977); Lopez v. Aziz, 852 SW2d 303, 306 (Tex. App. 1993); Flynn v. Bausch, 238 Neb. 61, 67 (469 NW2d 125) (1991); Hill v. Kokosky, 186 Mich. App. 300 (463 NW2d 265) (1990); Sullenger v. Setco Northwest, 74 Ore. App. 345 (702 P2d 1139) (1985).

It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of the health care provider-patient relationship. There are three essential elements imposing liability upon which recovery is bottomed [(and only the first is relevant here)]: (1) The duty inherent in the health care provider-patient relationship. . . . [H]ealth care provider-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. The relationship is considered consensual where the patient knowingly seeks the assistance of the health care provider and the health care provider knowingly accepts him as a patient. . . . Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319) (1988).

(Citations and punctuation omitted.) South Fulton Med. Center v. Poe, 224 Ga. App. 107, 109 (480 SE2d 40) (1996); see also Butters-worth v. Swint, 53 Ga. App. 602, 603 (2) (186 SE 770) (1936).

[I]t has been held almost uniformly in other jurisdictions that a physician who has been retained by a third party [, who is neither the treating physician nor acting on behalf of the patient,] to undertake a medical examination of an individual cannot be held liable to that individual for malpractice as a result of that examination, where he neither offered nor intended to treat, care for, or otherwise benefit the individual and did not injure him during the course of the examination. [Cits.] A different result is, of course, mandated where the physician did assume the role of treating the patient. [Cits.]

(Emphasis supplied.) Peace v. Weisman, supra at 698-699.

A [psychologist]-patient relationship exists where the patient [or someone on her behalf] knowingly seeks the assistance of the [psychologist] and the [psychologist] knowingly accepts [her] as a patient. We have held in medical malpractice actions, and it is generally the law of other jurisdictions, that when an employer retains a physician to examine an employee, no physician-patient relationship exists between the employee and the physician. This is because in such a situation, the physician has neither offered nor intended to treat, care for, or otherwise benefit the individual.

(Citations and punctuation omitted; emphasis supplied.) Payne v. ' Sherrer, 217 Ga. App. 761, 762-763 (1) (458 SE2d 916) (1995). Consultation for a fee with the treating professional, regarding the diagnosis, care, and treatment of a subject individual, creates a professional-client relationship with such subject individual.

Under the facts and circumstances of this case, defendant knowingly, intentionally, and willingly entered into and undertook to provide consultations for Kohout for compensation, waiving any right to know her identity, to examine either Kohout or her records, or to be more directly involved in her treatment for over four and one-half years. This is not a case of a quick, free, casual consultation between colleagues, but a long-term professional relationship for a fee regarding the care and treatment of the plaintiff. See generally Minster v. Pohl, supra at 620-621 (2). Although “there is no rule of law that requires a physician to undertake the treatment of every patient who applies to him,” when, as in this case, a defendant undertakes for compensation to consult on the care of a patient for four and one-half years, such undisputed facts and circumstances create a professional relationship and duty of care. Buttersworth v. Swint, supra at 604; accord Clanton v. Von Haam, 177 Ga. App. 694, 696-697 (2) (340 SE2d 627) (1986). Thus, defendant “knowingly accepted] [Kim] as a [consultation] patient,” even though she did not intend to create a legal relationship as psychologist-patient; by undertaking intentionally to act as a consultant in the care and treatment of the plaintiff, the defendant created the legal relationship of psychologist-patient. See generally South Fulton Med. Center v. Poe, supra at 109.

While the plaintiff was not aware that the defendant was consulting with Dr. Ulrici, plaintiff, through her patient-psychologist relationship with Dr. Ulrici, had authorized and empowered Dr. Ulrici to associate or consult with anyone during her treatment that Dr. Ulrici deemed appropriate for plaintiff’s care and treatment. Thus, Dr. Ulrici had the power and authority to create and accept on plaintiff’s behalf the patient-psychologist relationship with the defendant, which she did. The four and one-half years of compensated consultation with defendant had one single purpose, the care and treatment of plaintiff. Whether viewed as a third-party beneficiary to the agreement between the professionals or a contract by an agent, Dr. Ulrici, on behalf of a principal (plaintiff), expended considerable time and money with the defendant so that the defendant could have an effect on the plaintiff’s treatment, and defendant intentionally continued in such arrangement. South Fulton Med. Center v. Poe, supra at 109-110. This is not a case where the plaintiff rejected the care and treatment of the defendant, but in fact accepted it, albeit vicariously, through Dr. Ulrici. See Clough v. Lively, 193 Ga. App. 286, 288 (387 SE2d 573) (1989). The trial court did not err in denying the motion for summary judgment.

As a matter of public policy, a professional should not be permitted to profit monetarily and experientially from professional consultation regarding the care and treatment of a patient, and still escape the duty to exercise ordinary care as a professional for such patient. Otherwise, a professional could indirectly through consultations use humans as guinea pigs upon whom to experiment without incurring liability.

Decided July 15, 1999

Smith, Gambrell & Russell, Rex M. Lamb III, Edward D. Burch, Jr., for appellant.

Goetz, Tibbs & Zahler, Charles M. Goetz, Jr., Philippa V. Tibbs, Scott M. Zahler, for appellee.

Rogers & Hardin, Robert B. Remar, amicus curiae.

I am authorized to state that Presiding Judge Pope joins in this dissent.

       The facts of this case are more fully set out in Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452 (504 SE2d 514) (1998) (physical precedent only).

       See id. at 452-453.

       We note that in Peace, supra, and Payne, supra, privity was not established even where plaintiffs were examined by the physicians on whom they sought to impose professional liability. Here, not only did Schrader never examine Kohout, she also never even met or talked with her before this lawsuit was instituted, nor did she review her medical records.

       Where a physician or other health care professional undertakes to train and supervise, as faculty, staff, or contract provider, other members of their profession as part of an ongoing training program involving the care and treatment of patients, “in the increasingly complex modern delivery of health care, a physician who undertakes to provide .. . supervision of residents [or other professionals in training] actually treating a patient may be held accountable to that patient, if the physician negligently supervises those residents [or other professionals in training] and such negligent supervision proximately causes the patient’s injuries,” then the supervising physician or health care professional is liable to the patient, notwithstanding the absence of a physician-patient relationship. (Citations omitted.) Moz-ingo v. Pitt County Mem. Hosp., 331N. C. 182 (415 SE2d 341, 345) (1992); see also Jackson v. Oklahoma Mem. Hosp., 909 P2d 765 (Okla. 1996); Brooks v. Goldhammer, 608 S2d 394 (Ala. 1992). The supervising physician or health care professional owes to the patient a duty of ordinary care in the supervising of the training of others. Rouse v. Pitt County Mem. Hosp., 343 N. C. 186 (470 SE2d 44, 47) (1996).
      Under the facts of this case, the defendant denies that she undertook to supervise Dr. Ulrici or others. However, the existing evidence raises a strong inference that the defendant may have, in fact, been supervising Dr. Ulrici. Further, discovery and evidence could establish whether or not which was the case or show that there exists a clear disputed material issue of fact in such regard.