text:
    A96A1390, A96A1391.
    GEORGIA BOARD OF DENTISTRY v. PENCE; and vice versa.
    (478 SE2d 437)
   Smith, Judge.

After receiving several patient complaints, the Georgia Board of Dentistry initiated disciplinary proceedings against Deborah L. Pence, D.D.S. At a lengthy evidentiary hearing before a hearing officer, Pence presented evidence and testimony, including an expert witness and several patients. The hearing officer determined that some of the dental work complained of was adequate or that there was a failure of proof, but also determined that Pence had performed other dental work that did not conform to minimal standards of acceptable and prevailing dental practice. The hearing officer recommended suspension of Pence’s license for ninety days, with enforcement suspended pending administrative probation for a period of three years, and a fine of $2,500. Pence appealed this decision to the full Board of Dentistry.

After an additional hearing, the full Board adopted the findings of fact and conclusions of law of the hearing officer. The full Board determined, however, that “based on the seriousness and magnitude of the evidentiary findings; testimony of all consultants based on their examination of respective patients; testimony of witness Dr. Robert Smith; and testimony of other witnesses, and in keeping with the consistency of previous sanctions for similar violations” it would increase the sanctions imposed on Pence, suspending enforcement of only one month of the ninety-day license suspension, and placing Pence on probation for five years.

Pence sought judicial review of the Board’s decision pursuant to OCGA § 50-13-19. The superior court determined that due process violations had occurred, reversed the full Board’s determination, and dismissed the complaint against Pence. This Court granted the Board’s application for discretionary appeal, and Pence cross-appealed, alleging that the trial court erred in refusing to rule on several additional grounds proposed in the order. For the reasons stated below, we reverse the superior court’s dismissal of the decision of the full Board but affirm on the cross-appeal.

1. Pence contends these appeals should be transferred to the Supreme Court because they raise constitutional issues. The Supreme Court, however, will not rule on a constitutional question unless it clearly appears in the record that the trial court “distinctly passed” on the point. Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994). The trial court declined to rule on the basis proposed by Pence, that Rule 295-5-.05 of the Joint Secretary of the State Examining Boards was unconstitutional. Moreover, the Supreme Court’s exclusive appellate jurisdiction under Ga. Const. 1983, Art. VI, Sec. VI, Par. II includes “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question”; it does not extend to questions of constitutionality of an administrative regulation. Brosnan v. Undercofler, 220 Ga. 239 (138 SE2d 314) (1964). This is therefore not a proper case for transfer to the Supreme Court.

2. In the main appeal, the Board contends the superior court erred in reversing and dismissing the Board’s order on the ground that three Board members also sat on the investigative committee that conducted a preliminary investigation. We agree with the Board that this basis for reversal was improper.

(a) The superior court’s reasoning is foreclosed by well-established Georgia authority that combining the functions of investigation and adjudication in an administrative agency does not violate the requirements of due process. “In order to comply with the requirements of due process, the hearing granted by an administrative body must be a full and fair one, before an impartial officer, board, or body free of bias, hostility, and prejudgment. The fact that the administrative agency is both the accuser and judge does not deprive [the] accused of due process of law, especially where an appeal from the determination of the agency may be had to the courts. It has even been held that combination of investigative and adjudicative functions in the same persons in an administrative agency is not itself a violation of due process.” (Citations and punctuation omitted.) Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 740 (5) (a), (b) (285 SE2d 913) (1982). See also In the Matter of: Inquiry Concerning a Judge, 265 Ga. 843, 846 (2) (462 SE2d 728) (1995) C‘[i]t is well-established that the exercise of the combination investigative and adjudicative functions of an agency does not, per se, violate the requirements of due process. [Cit.]”). While Pence cites a number of cases from other jurisdictions in support of her position, the Georgia law as established by the Supreme Court is clear.

(b) The Board did not violate its own rules in allowing three of its members to undertake this dual function, as contended by Pence. Pence points to no legal authority or Board rule to support her contention, and we find none. While Pence claims the Executive Director admitted that “only the Board members other than the investigative committee vote on the cases,” the Director’s testimony did not refer to the post-hearing review function of the full Board, as Pence now claims. The testimony concerned the appointment of a consultant before the determination to proceed with a notice of hearing. The Director stated that the purpose of excluding members of the investigative committee from the decision to proceed was to maintain the anonymity of the respondent during the initial investigation. Obviously, anonymity could no longer be maintained with respect to the full Board once Pence appeared in person and presented her case. Pence’s counsel acknowledged at the time that his objection went to the investigative procedures and the appointment of a consultant. At the time of the testimony, the initial hearing was not complete, no initial decision had been rendered, and the post-hearing review by the full Board would not occur until 11 months later and could not have been predicted by Pence.

Finally, Pence, though aware of the presence of investigative committee members at the full Board hearing, failed to object to their participation in deliberations either before or after the hearing. See Division 5, below.

The trial court erred in reversing the Board’s decision and dismissing the disciplinary proceeding on the ground that the dual function of three Board members amounted to a due process violation.

3. The Board also asserts the superior court erred in finding that the Board relied upon the contents of the investigative committee’s files in reaching its decision, and thus relied upon matters outside the record. The only evidence supporting Pence’s contention appears to be a mere verbal slip. In orally pronouncing the Board’s decision at the hearing, the president stated: “The Georgia Board of Dentistry . . . finds that the seriousness and magnitude of the evidentiary finding of the investigative committee, testimony of all consultants, based on their examination of respective patients, testimony of witness Dr. Robert Smith and testimony of other witnesses, and in keeping with the consistency of previous sanctions of similar violations recommends the following. . . (Emphasis supplied.)

When this wording was called to his attention, the hearing officer placed each member of the Board on the record and questioned each individually regarding the consideration of matters outside the record. Each member of the Board testified unequivocally that he or she did not consider any information in deliberations that was not a part of the hearing record as developed before the hearing officer. The president of the Board added that “proper procedure was followed and that nothing was used that was not available to all parties involved. We did not open any investigative files that neither you nor the Hearing Officer were privy to, and we stand by that as a clarification of the statement.” The otherwise virtually identical language of the Board’s “Final Decision” filed with the Joint Secretary of the State Examining Boards does not contain the four words complained of.

It is a “well settled principle that public officials shall be presumed to have performed their duties and acted in good faith unless clearly proven otherwise. [Cits.]” Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 192 (2) (c) (336 SE2d 562) (1985). See also Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. at 741 (5) (b). An apparent verbal slip, corrected and confirmed by each individual Board member, without more, does not constitute sufficient evidence to overcome this presumption, and the superior court erred in so ruling.

4. The Board also contends that the superior court erred in dismissing the disciplinary action on the basis that the Board failed to state with specificity its reasons for increasing the sanctions on Pence. Ga. Real Estate Comm. v. Horne, 141 Ga. App. 226 (233 SE2d 16) (1977), requires that when a reviewing board or commission imposes a more severe sanction than that recommended by the hearing officer, “the reasons for so doing must affirmatively appear as part of the record.” 141 Ga. App. at 234 (3). The final decision of the Board, as noted in Division 3, stated specific reasons for increasing the penalty, including the goal of consistency with sanctions for similar violations. Horne does not require that the Board make separate findings of fact on the question of sanctions, introduce evidence on its own motion, or, as Pence suggests, make a comparison on the record with the names and factual details of specific cases involving other dentists. The superior court erred in imposing the additional requirement of specifying factual data supporting the Board’s reason for imposing a more severe sanction on Pence.

5. In Pence’s cross-appeal, she contends she was denied due process because her expert was unable to conduct an independent dental examination of the complainants, and that Rule 295-5-.05 of the Joint Secretary of the State Examining Boards forbidding such physical examinations is unconstitutional as violative of due process and equal protection. It does not appear that Pence has an absolute right to conduct discovery in an administrative action. See generally Ga. State Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706, 709 (3) (224 SE2d 820) (1976). We do not reach that issue, however, because Pence failed to raise it below.

In a motion filed several months after the initial hearing, Pence contended she had been denied the right to depose witnesses and to inspect evidence, but she never raised the issues of an independent medical examination or the constitutionality of Rule 295-5-.05. Moreover, it is possible that Pence could have sought immediate judicial review of an adverse agency ruling, had she properly raised the issue before the agency. OCGA § 50-13-19 (a); Wills v. Composite State Bd. of Med. Examiners, 259 Ga. 549, 550 (1) (384 SE2d 636) (1989). “The scope of judicial review is limited under the [Administrative Procedure] Act to those objections upon which the agency has had an opportunity to rule. The fact that one basis, or even the sole basis, of a respondent’s complaint as to the hearing officer’s initial decision is a constitutional attack, does not eliminate the necessity for agency review as a prerequisite to judicial review.” (Citations and punctuation omitted.) Dept. of Public Safety v. Foreman, 130 Ga. App. 71, 72 (2) (202 SE2d 196) (1973).

Pence’s reliance upon Flint River Mills v. Henry, 234 Ga. 385 (216 SE2d 895) (1975) is misplaced. In that decision, the Supreme Court recognized that a challenge to the constitutional validity of a statute before an administrative officer “appears futile at the time of its making.” 234 Ga. at 386. The Supreme Court nevertheless required that such action be taken, despite its apparent (but not actual) futility: “Plaintiffs could have raised this constitutional challenge in the hearing before the deputy director. If they had, the challenge would have been ruled upon on the appeal to the superior court. . . . [Cits.]” Id. This observation supported the court’s holding that plaintiffs had no right to maintain a separate declaratory judgment action challenging the constitutionality of administrative procedures. Id. at 387. Moreover, the Supreme Court has continued to rely on Flint River Mills in support of decisions holding that a constitutional challenge must be raised in the agency proceeding. See, e.g., Ga. Real Estate Comm. v. Burnette, 243 Ga. 516 (3), 517 (255 SE2d 38) (1979).

6. In a related enumeration of error, Pence contends the disciplinary proceeding should be dismissed because the Board or its expert witness spoliated evidence. She contends spoliation occurred when the subsequent treating dentist removed or repaired Pence’s work on a patient before Pence or her expert had an opportunity to inspect it. In support of this contention, she cites a number of cases from other jurisdictions and one Georgia decision, Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539 (469 SE2d 783) (1996). In all those decisions, however, litigation was pending or contemplated at the time of the alleged spoliation; in Chapman, suit had already been filed. 220 Ga. App. at 540. Here, in contrast, Pence’s former patient sought treatment from another dentist before any complaint was made to the Board.

The cases cited by Pence involve the alteration or destruction of inanimate objects such as electrical parts (in Chapman), seat belts, or tires, or the destruction of a dead body subject to autopsy. In contrast, the alleged “spoliation” in this case was the repair and replacement of dental work in a living patient. The dental work was causing the patient discomfort and, according to the treating dentist, was “leaking” and was not seated or sealed, allowing bacteria and food particles to enter the tooth and cause decay, bleeding, and irritation. We cannot and will not require a living human being to endure pain or the risk of infection to preserve the “status quo” for inspection by Pence or her expert. Carrying Pence’s argument to its logical extreme, a tortfeasor could accuse a victim’s physician or surgeon of “spoliation” for treating the injuries inflicted by the tortfeasor. This enumeration of error is without merit.

7. Pence also contends that the evidence presented amounts to a mere difference of opinion among dentists regarding the use of mercury-silver amalgam fillings and therefore did not constitute a sufficient basis for discipline. Pence relies on the statement in Hayes v. Brown, 108 Ga. App. 360, 366 (2) (133 SE2d 102) (1963) that “[tjestimony showing a mere difference in views between surgeons as to operating techniques, or as to medical judgment exercised, is insufficient to support an action for malpractice where it is shown that the procedure preferred by each, or the judgment exercised, is an acceptable and customary method.” Id. In Hayes, however, the plaintiff’s expert witness “declined to designate any of the differences in operating technique as anything more than matters of medical judgment for the physician in charge in accordance with accepted medical standards at the time the operation was performed.” (Emphasis supplied.) Id. Here, in contrast, two dentists testified that aspects of Pence’s work unrelated to the removal of amalgam fillings did not conform to minimal standards of acceptable and prevailing dental practice.

Under the Administrative Procedure Act, the superior court and this Court must accept the factual findings of the Board if there is any evidence to support them and must construe the evidence in favor of the decision rendered. Ga. Power Co. v. Ga. Public Svc. Comm., 196 Ga. App. 572, 580-581 (5) (396 SE2d 562) (1990). “The presence of conflicting evidence, including dueling experts, is sufficient to satisfy the any evidence standard. [Cit.]” Id. at 580. While Pence asserts that this disciplinary action is pretextual and based entirely on the Board’s opposition to the removal of amalgam fillings, under OCGA § 50-13-19 (h) neither this Court nor the superior court can substitute its judgment on disputed issues of fact for that of the agency. See generally Sawyer v. Reheis, 213 Ga. App. 727, 728-729 (1) (445 SE2d 837) (1994).

8. Pence’s contention that two witnesses for the Board were incompetent to testify is also without merit. Pence’s allegations that one or both witnesses were too closely connected to members of the Board, had an interest in the proceedings, or harbored ill-will directed against her personally go to the weight or credit of the witnesses, not their competency to testify. “Any possible bias or interest on the part of the expert witness himself was admissible as reflecting on his credibility. OCGA § 24-9-68. It would not, however, render him incompetent to testify. OCGA § 24-9-1 (a).” Rogers v. State, 180 Ga. App. 310, 311 (2) (348 SE2d 888) (1986).

9. Pence also contends that it was improper for the dental hygienist member of the Board to deliberate and vote on her appeal. Pence, however, did not raise this objection at the time of the full Board hearing, and it is therefore waived. See Division 5, above.

10. Pence contends that the “beyond a reasonable doubt” standard of proof applicable to criminal cases should have been required in the administrative hearing. OCGA § 50-13-15 (1) provides, however, that “[t]he rules of evidence as applied in the trial of civil non-jury cases in the superior courts shall be followed” in administrative hearings. OCGA § 24-4-3 in turn provides that “[i]n all civil cases a preponderance of evidence is considered sufficient to produce mental conviction.”

11. Pence’s contention that she was improperly denied her right to a jury trial in these proceedings is foreclosed by Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. at 742 (8). (“There is no constitutional right to a jury trial in these administrative proceedings.”)

Decided November 19, 1996.

Michael J. Bowers, Attorney General, Brenda H. Cole, Deputy Attorney General, Janet B. Wray, Helen O’Leary, Assistant Attorneys General, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Philip P. Taylor, Douglas W. Smith, for appellee.

Judgment affirmed in Case No. A96A1391. Judgment reversed in Case No. A96A1390.

Pope, P. J., and Andrews, J., concur.

       It appears from the record that the superior court, in a proposed order presented by Pence, struck out several paragraphs giving additional grounds for the court’s ruling.

       We note that in the context of judicial proceedings, “what the judge orally declares is no judgment until the same has been reduced to writing and entered as such. [Cits.]” Tyree v. Jackson, 226 Ga. 690, 694 (2) (177 SE2d 160) (1970).

       We note that such a requirement has at least the potential to violate the confidentiality provisions of the Board’s rules. See Rule 150-4-.01 (2).

       Despite Pence’s repeated contentions that this dentist was a consultant, no evidence was presented that this witness was appointed by the Board to serve as a consultant on this patient’s case; he was a subsequent (and prior) treating dentist selected by the patient.

       As noted below, OCGA § 50-13-15 makes the rules of evidence as applied in civil non-jury cases applicable to the administrative hearing at issue here.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A1924.
    RAMIREZ v. GOLDEN et al.
    (478 SE2d 430)
   Judge Harold R. Banke.

The trial court granted summary judgment in favor of Randall F. Golden and Brenda D. Golden (collectively “Golden”) on their suit on a promissory note unconditionally guaranteed by Sonny M. Ramirez. Ramirez challenges that disposition.

The material facts of this action are undisputed. A corporation, 12 Savannah Restaurant, Inc. (“12 Savannah”), purchased an existing restaurant business from Golden. At the closing, 12 Savannah executed a promissory note in favor of Golden in the amount of $225,000 as part of the purchase price. Ramirez, a corporate officer of 12 Savannah, executed an unconditional guaranty of payment and performance obligating only himself to personally pay the indebtedness of 12 Savannah on that promissory note in the event of default. Ramirez agreed that the provisions of the guaranty were applicable to “all renewals, amendments, extensions, consolidations, and modifications of the loan documents.” He also agreed that no action taken by Golden, “nor any course of dealing with Borrower [12 Savannah] or any other person, shall release Guarantor’s obligations hereunder, affect this Guaranty in any way or afford Guarantor any recourse against Lender [Golden].” In addition to consenting to several waiver clauses, Ramirez agreed to forego “any legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled.”

The closing documents included a non-compete clause whereby Golden agreed for a ten-year period to not directly or indirectly “engage in, invest in, or otherwise be connected with the restaurant business” in Coweta County. This covenant specifically authorized its amendment provided that “Seller [Golden] obtains the prior written consent of Buyer [12 Savannah].”

About two years later, Ramirez sold his entire interest in 12 Savannah to the other corporate shareholders. Approximately one year after Ramirez disposed of his ownership, 12 Savannah and Golden modified the original agreement. 12 Savannah agreed to release Golden from the non-compete clause with a few. restrictions not germane here, in exchange for obtaining more favorable payment terms. Although Ramirez did not sign the release, it is undisputed that his consent was not required to amend the non-compete agreement.

In the latter part of 1994, Golden began to operate a restaurant known as “Goldens on the Square” located about four blocks from 12 Savannah Restaurant. Several months later, 12 Savannah filed for bankruptcy. After the restaurant defaulted on its payments and after making an unsuccessful demand for payment, Golden filed suit against Ramirez to recover on the unconditional pérsonál guaranty. The trial court granted summary judgment to Golden and awarded Golden the unpaid principal and interest, attorney fees, plus costs. Held:

Where defenses to summary judgment are pierced and a defendant fails to respond with specific facts showing genuine issues of material fact remaining for trial, summary judgment is properly granted. Soni v. Coppedge, 159 Ga. App. 889, 890 (1) (285 SE2d 604) (1981).

Ramirez contends that the trial court erred in granting summary judgment by failing to properly consider his statutory defenses under OCGA §§ 10-7-21; 10-7-22. OCGA § 10-7-21 provides that “Any change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him.” OCGA § 10-7-22 provides that “Any act of the creditor . . . which injures the surety or increases his risk or exposes him to greater liability shall discharge him.” Claiming that the release constituted a novation and also that the release materially and detrimentally increased his risk, Ramirez asserts both statutory grounds as discharging his obligation as guarantor. OCGA §§ 10-7-21; 10-7-22. Ramirez contends that he would never have signed the guaranty if he had known that Golden could be released without his consent while he was still liable on the note.

The unconditional guaranty agreement at issue here is unambiguous, explicit, and unconditional as to its material terms. See Fore v. Parnell-Martin Cos., 192 Ga. App. 851, 852 (1) (386 SE2d 723) (1989). Notwithstanding Ramirez’s argument to the contrary, a guarantor may consent in advance to a course of conduct which would otherwise result in his discharge. Baby Days v. Bank of Adairsville, 218 Ga. App. 752, 755 (3) (463 SE2d 171) (1995). This includes waiving defenses which otherwise would be available to a guarantor. See Jones v. Dixie O’Brien &c. Corp., 174 Ga. App. 67, 68 (1) (329 SE2d 256) (1985). Specifically, the protection afforded by OCGA §§ 10-7-21 and 10-7-22 can be waived in advance at the time a guarantor signs the instrument. Underwood v. Nationsbanc Real Estate Svc., 221 Ga. App. 351, 353 (471 SE2d 291) (1996).

Decided November 19, 1996.

Wood, Odom & Edge, Gus L. Wood III, for appellant.

Rosenzweig, Jones & MacNabb, Joseph P. MacNabb, for appellees.

Here, the closing documents contemplated that the covenant not to compete could be amended contingent on Golden’s obtaining 12 Savannah’s prior written consent. Whether Ramirez realized that the covenant was susceptible to subsequent modification is immaterial. By signing the instrument, Ramirez bound himself to the guaranty’s terms which permitted amendment and modification without altering his underlying obligation. Moreover, when Ramirez signed the unconditional guaranty, he expressly waived and agreed not to assert or take advantage of “any other legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled.” By assenting in advance to a waiver of all legal and equitable defenses, Ramirez is foreclosed from asserting that he was discharged under OCGA § 10-7-21 or § 10-7-22. Underwood, 221 Ga. App. at 353; Panasonic Indus. Co. v. Hall, 197 Ga. App. 860, 861 (1) (399 SE2d 733) (1990); Griswold v. Whetsell, 157 Ga. App. 800, 803 (3) (278 SE2d 753) (1981).

Having successfully pierced Ramirez’s defenses, and in the absence of any disputed material issues of fact, Golden was entitled to summary judgment as a matter of law. Soni, 159 Ga. App. at 890 (1); OCGA § 9-11-56 (c).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

       The memorandum of sale provided that all documents executed at closing would be considered “one contract” and enforced as such.


author: McMurray, Presiding Judge.

text:
    A96A2107.
    WORTHY v. THE STATE.
    (478 SE2d 421)
   McMurray, Presiding Judge.

Defendant Worthy appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. Held:

1. The first two enumerations of error relate to the dismissal of a juror, who had been selected to serve on the petit panel, prior to the beginning of the trial. The juror had been observed standing with and engaged in a conversation with defendant on the courthouse steps. The defendant and the juror were questioned concerning their conversation, and both stated that they had a casual conversation while smoking which did not include any mention of the case against defendant. It was also established that it was not uncommon for people to be outside the building to smoke.

A police detective testified that as he came upon the pair, defendant “turned, looked at me, the juror looked át me and he said, ‘That’s the one that’s lying on me.’ The conversation shut up. [Tjhere was no more conversation while I stood there. I mean nothing. They didn’t talk about anything. Stood there for a couple minutes, I came back inside. When I entered back in the building, I looked out the window, conversation started back. I let this go on for a couple minutes. I walked back outside, the juror stated, ‘We’ll have to see in there.’ They shut up again, no conversations while I was on the stoop incurred [sic], I came back in the building, conversation started again, I come and got you.” Without reaching any conclusion as to the nature of the conversation the trial court dismissed the juror “out of an abundance of caution” on the basis of the prohibited conversation between defendant and juror.

Defendant argues that dismissal of the juror had a detrimental effect upon the composition of the jury because the dismissed juror like defendant is an African-American male. This is an apparent attempt to suggest that the dismissal of the juror was racially discriminatory and to invoke a challenge similar to that created by Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). But any such challenge must fail under the circumstances of the case sub judice.

A trial court’s authority to dismiss jurors in circumstances such as these is controlled by OCGA § 15-12-172. That section provides that “[i]f at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, [or] upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” (Emphasis supplied.) It is well established that OCGA § 15-12-172 provides a trial court with “discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis. [Cits.]” Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816).

In Miller v. State, 261 Ga. 679, 680 (6) (410 SE2d 101) the trial court dismissed a juror because she had an out-of-court contact with defense counsel. The Supreme Court held that under the circumstances of that case, “the trial court had a sound basis for exercising its discretion to discharge the juror and that, accordingly, appellant’s Fifth and Sixth Amendment rights were not violated in this regard. [Cits.]” Id.

Similarly, the evidence in this case showed that the trial court had a sound basis for exercising its discretion to dismiss the juror. The police detective’s testimony created at least a suspicion of improper conduct by the juror, and it was the trial court’s duty to dismiss him to “ ‘preserv[e] public respect for the integrity of the judicial process.’ See generally Beam v. State, 260 Ga. 784, 786 (2) (400 SE2d 327) (1991).” Id. Defendant, in this case, cites no evidence of discrimination and we find none to support his contention that dismissing the juror “materially affected the composition of the jury and denied him a fair trial.” The trial court committed no error in dismissing the juror, constitutional or otherwise.

After the remaining jurors returned to the courtroom, the trial court explained to them that “I had to excuse one of the jurors because there had been some communication between the defendant and that juror.” Defendant moved for a mistrial “if the Court’s gonna communicate this to the jury.” But defendant failed to state any further grounds for the motion for mistrial which was denied. On appeal, defendant attempts to raise for the first time a contention that the trial court’s remarks disparaged and placed in issue his character. But this belated attempt to raise this issue presents nothing which may be considered on appeal. Allison v. State, 217 Ga. App. 580, 581 (2), 582 (459 SE2d 557); Adams v. State, 197 Ga. App. 81, 82 (397 SE2d 497).

2. Defendant also enumerates as error the denial of another motion for mistrial which occurred after the trial court asked a question of a prosecution witness. Defendant was indicted as “John Steven Worthy,” but apparently preferred to be identified as “John S. Worthy,” the manner in which defendant’s signature repeatedly appears in the record. The State’s witness testified as to “Steven Worthy” entering a vehicle, and the trial court inquired in order to establish whether “Steven Worthy” was the same person as the defendant. The witness responded affirmatively noting that he knew him as “Steven” rather than “John.” There was no error in the trial court propounding questions to a witness for the purpose of fully developing the truth of the case, and contrary to defendant’s assertion there was no improper expression of opinion by the trial court. Stevens v. State, 247 Ga. 698, 707 (16) (278 SE2d 398).

3. We find no merit in the final enumeration of error which contends that the evidence is insufficient to authorize defendant’s conviction under the standard provided in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The State’s evidence shows that defendant sold crack cocaine to an undercover agent. Gay v. State, 221 Ga. App. 263, 264 (1), 265 (471 SE2d 49).

Decided November 19, 1996.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, Ross H. Pittman III, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A2319.
    In the Interest of M. T., a child.
    (478 SE2d 428)
   McMurray, Presiding Judge.

A petition was filed with the Juvenile Court of Butts County, alleging that the minor M. T. was delinquent for having committed a delinquent act which if committed by an adult would constitute the offense of abusive and obscene language in violation of OCGA § 16-11-39, for having called the victim “a bitch and cursing at her and telling her that he was going to throw her down and f— her to death. . . .” It was further alleged that M. T. committed a delinquent act which if committed by an adult would constitute the offense of simple assault in violation of OCGA § 16-5-20, by placing the victim “in reasonable apprehension of receiving a violent injury . . .” by this same threat.

An adjudicatory hearing was apparently commenced on March 13, 1996, and continued to April 10, 1996. At the conclusion of the April 10, 1996 portion of the hearing, the juvenile court orally announced its findings, “beyond a reasonable doubt that [M. T] committed the delinquent offenses of obscene and abusive language and terroristic threats.” The juvenile court further announced that M. T. would be placed on probation, with conditions. The April 10, 1996 written order, however, recites that, “after evidence was presented, it is found that it would be in the best interest of said youth that the charges against said youth be held in ABEYANCE as set forth in Chapter 15-11-14 of the Juvenile Court Code for 120 days (SEE OVER FOR CONDITIONS) at which time charges will be dismissed if no further complaints have been filed with this Court, and said youth obeys the probative rules hereto attached.” This direct appeal followed. Held:

It is the duty of this Court on its own motion to inquire into its jurisdiction. Thibadeau v. Hendon, 221 Ga. App. 258 (471 SE2d 52). OCGA § 15-11-64 allows appeals “[i]n all cases of final judgments of a juvenile court judge. . . .” In our view, the order appealed from in the case sub judice is not a final order, for it does not render a judgment of adjudication and disposition on the allegations contained in the petition for delinquency. Rather, it holds all charges in abeyance during a period of good behavior. Upon successful completion of that period of good behavior, all charges will be dismissed. Compare In the Interest of T. L. G., 266 Ga. 407 (467 SE2d 885) (adjudication of delinquency and transfer to the juvenile court of Russell County, Alabama, was directly appealable because it “was the final judgment to be entered in the case by any court in Georgia. . . .”); G. W. v. State of Ga., 233 Ga. 274, 276 (210 SE2d 805) (adjudication of delinquency and transfer to county of residence of nonresidents of Georgia was the “final judgment to be entered in the case by any court in Georgia and therefore, unlike the cases . . . where the case was transferred to another Georgia court for final disposition, . . . was subject to review without a certificate authorizing immediate review.”). Since the order appealed from is not the final judgment to be entered in the case by any court in Georgia, this appeal is premature, and the case must be dismissed without prejudice. The minor M. T. is expressly granted permission to file a direct appeal from any subsequent final judgment. M. K. H. v. State of Ga., 132 Ga. App. 143 (207 SE2d 645); D. C. E. v. State of Ga., 130 Ga. App. 724, 725 (204 SE2d 481).

Decided November 19, 1996.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


author: Andrews, Judge.

text:
    A96A1211.
    EUBANKS et al. v. CSX TRANSPORTATION, INC. et al.
    (478 SE2d 387)
   Andrews, Judge.

Augusta Cab Company, Inc. (Augusta Cab) was transporting a group of railroad workers employed by CSX Transportation, Inc. (CSX) when the van containing the employees was involved in an accident. Ted Eubanks, one of the CSX employees in the van, sued CSX and Augusta Cab for injuries he suffered in the accident. He alleged that the accident occurred during the scope of his employment for CSX; that the accident was caused by the negligence of Augusta Cab and that Augusta Cab was operating the van as an agent of CSX. In the same complaint, Eubanks’ wife also brought a loss of consortium action against Augusta Cab.

CSX and Augusta Cab moved for summary judgment on all the claims contending that, after the van accident, Eubanks and his wife settled the present claims and executed a release discharging CSX and its agents from liability on all claims and injuries which occurred prior to the release. The trial court granted the summary judgment motions finding that Eubanks and his wife released all claims arising out of the van accident. Eubanks and his wife appeal claiming the release they signed after the van accident was intended to apply only to the settlement of a job-related foot injury suffered by Eubanks prior to the van accident and did not release any claims arising out of the van accident. They claim the trial court erred by failing to consider evidence which showed there was a mutual mistake of material fact affecting the validity of the release as it applied to the van accident.

The van accident giving rise to the injuries at issue in the present claims occurred on March 10, 1990. Medical evidence showed that, as a result of physical and psychological injuries he suffered in the 1990 van accident, Eubanks underwent years of continuing medical treatment and has been unable to return to work for CSX. Prior to the van accident, Eubanks suffered a foot injury in 1988 in the scope of his employment with CSX which caused him to miss five to seven months of work.

On or about July 19, 1990, Eubanks and his wife, unrepresented by counsel, met with a CSX claims representative and signed a release agreement in favor of CSX and its agents for a settlement payment of $52,763. The agreement recited the payment and specifically stated that there was a settlement and release of all claims arising out of the 1988 foot injury. The release also showed a deduction from the $52,763 payment for a $19,910 advance made by CSX to Eubanks. Eubanks’ deposition testimony provided evidence that the advance was made to him prior to the van accident while he was disabled due to the 1988 foot injury. Although the release made no specific mention of the van accident, it stated generally that it settled “all claims . . . which the undersigned has or might have . . . for any and all injuries to [person or property] occurring prior to the date of this settlement and final release, including but not limited to injuries and/or damage arising out of or in any way connected with [the 1988 foot injury].” Based on this language in the release, CSX and Augusta Cab claim the July 1990 release discharged them from liability for all claims arising out of the March 1990 van accident.

1. The parties agree that Eubanks’ action against CSX for injuries suffered in the scope of his railroad employment for CSX is controlled by the provisions of the Federal Employers’ Liability Act (FELA). See 45 USC § 51 et seq. In a FELA case, federal law governs substantive issues as to the validity of a release. Dice v. Akron &c. R. Co., 342 U. S. 359, 361 (72 SC 312, 96 LE 398) (1952); Southern R. Co. v. Hogue, 116 Ga. App. 194, 196 (156 SE2d 412) (1967), rev’d on other grounds, 390 U. S. 516 (88 SC 1150, 20 LE2d 73) (1968). The party attacking the release bears the burden of establishing invalidity, and one method of doing so is to show that both parties to the release were mistaken as to a fact material to the release agreement. Maynard v. Durham &c. R. Co., 365 U. S. 160, 163 (81 SC 561, 5 LE2d 486) (1961); Callen v. Pennsylvania R. Co., 332 U. S. 625 (68 SC 296, 92 LE 242) (1948); see also Fox v. Washburn, 264 Ga. 617 (449 SE2d 513) (1994); Fulghum v. Kelly, 255 Ga. 652 (340 SE2d 589) (1986).

Eubanks and his wife contend that, despite the general language in the release indicating it applied to all claims occurring prior to the July 1990 settlement and release, they and the CSX claims representative, who witnessed and signed the release agreement for CSX, expressed a mistaken understanding when they signed the agreement that the release and settlement applied only to the 1988 foot injury. Eubanks gave deposition testimony that he met with the claims representative and agreed to discuss settlement of the foot injury claim. He testified that the claims representative explained to him that he calculated a settlement amount for the foot injury by multiplying estimated lost wages as a result of that injury by a factor of three. Pursuant to their conversation, Eubanks testified that the release agreement was signed and he accepted a settlement check from CSX for the amount he and the representative agreed was due on the foot injury.

CSX and Augusta Cab contend summary judgment in their favor was proper because the July 1990 release employed general language making it applicable to the March 1990 van accident, and there was no probative evidence that the claims representative who negotiated the release for CSX mistakenly believed the release applied only to the 1988 foot injury. They claim Eubanks’ testimony as to what the CSX claims representative said when he and Eubanks discussed settlement of the foot injury, signed the release, and agreed on the $52,763 settlement, was non-probative hearsay. We disagree. Eubanks’ testimony recounting what the CSX claims representative told him at the time of the settlement and release agreement was admissible for the purpose of showing that, despite language in the release to the contrary, both he and the CSX claims representative agreed on the settlement! amount and the release on the mistaken belief that the release applied only to the 1988 foot injury. OCGA §§ 24-3-33; 10-6-64. The statements supporting this contention allegedly made to Eubanks by the CSX claims representative were made in the scope of the representative’s employment for CSX and at the time the settlement and release agreement at issue was entered into. Accordingly, they were proper evidence of admissions made by an agent for CSX as part of the res gestae. J. D. Jewell, Inc. v. Hancock, 226 Ga. 480, 487-488 (175 SE2d 847) (1970); Southern R. Co. v. Allen, 118 Ga. App. 645, 646-647 (165 SE2d 194) (1968); Thornton v. King, 81 Ga. App. 122, 128-129 (58 SE2d 227) (1950).

Decided October 29, 1996

Reconsiderations denied November 20, 1996

Burge & Wettermark, James H. Wettermark, for appellants.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, for appellees.

Although federal law controls substantive matters in a FELA case, in the absence of any interference with substantive rights or defenses under FELA, state rules of procedure and practice (including rules governing the admissibility of evidence) apply. Central of Ga. R. v. Jones, 152 Ga. 92, 96-97 (108 SE 618) (1921); Atlanta Joint Terminals v. Knight, 98 Ga. App. 482, 484-485 (106 SE2d 417) (1958). We find no interference with substantive FELA rights or defenses in the application of the above Georgia rules governing the admissibility of evidence. The defendants are not precluded from producing other evidence that there was no mutual mistake of fact or from attacking the credibility of Eubanks as to what was said by the parties when the settlement and release agreement was signed.

There was evidence of a mutual mistake as to a fact material to the content and effect of the release agreement. Accordingly, a jury question exists as to whether there was a valid release of FELAbased claims arising out of the 1990 van accident. See Counts v. Burlington Northern R. Co., 952 F2d 1136, 1141 (9th Cir. 1991).

2. The record is unclear as to whether the plaintiffs also allege non-FELA-based causes of action. Nevertheless, to the extent the complaint may also allege non-FELA-based causes of action against Augusta Cab, a similar question of fact also exists under Georgia law as to whether there was a valid release of such claims arising out of the 1990 van accident. Fox, supra; Fulghum, supra.

Judgment reversed.

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

       Although we do not reach this issue, it is clear that the loss of consortium claim must be non-FELA-based in’ order to survive. Louisville & Nashville R. Co. v. Lunsford, 216 Ga. 289 (116 SE2d 232) (1960); Bowers v. Estep, 204 Ga. App. 615, 620 (420 SE2d 336) (1992).


author: McMURRAY, Presiding Judge.

text:
    A96A1661.
    PEACOCK et al. v. CAMPBELL.
    (478 SE2d 409)
   McMURRAY, Presiding Judge.

Plaintiffs Billy and Jane Peacock filed this action for damages against defendant William Campbell. In 1985, defendant contracted to construct a house for plaintiffs which was completed on or about May 1, 1986. The complaint, which was filed on October 3, 1994, alleges a number of defects in the construction of the house and maintains that defendant fraudulently concealed the deficient construction so as to deceive plaintiffs and to induce them to believe that their home had been constructed in a workmanlike manner. Plaintiffs appeal a grant of summary judgment in favor of defendant based upon the superior court’s conclusion that “the plaintiffs have failed to bring their claim of fraud within the applicable statute of limitations, have failed to demonstrate that the statute of limitations should be tolled, and have failed to raise a genuine issue of fact as to the existence of any fraudulent conduct on the part of the defendant. . . .” Held-.

“The notice of appeal filed by plaintiffs is not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, plaintiffs have instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. Nonetheless, after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the superior court relied in this case has been omitted from the record on appeal.

“It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847); Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294); Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309 (1) (395 SE2d 898); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520).” Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544).

“ ‘On consideration of summary judgments we and the trial court must look at the entire record.’ Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980).” MacKinnon v. Hodge, 204 Ga. App. 539 (420 SE2d 341). Consequently, appellants who omit portions of the record which they view as not pertaining to any issue on appeal create a probably fatal defect in their appeals. “Such omissions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court’s grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266[, supra].” Dillman v. Kahres, 201 Ga. App. 210, 211 (411 SE2d 43). Since plaintiffs have omitted some evidence from the record on appeal, including at least the majority of defendant’s deposition which is included in its entirety in the record below, we must presume that the grant of summary judgment in favor of defendant is properly supported by the superior court record.

Decided November 7, 1996

Reconsideration denied November 20, 1996

Gary C. Harris, for appellants.

R. Bruce Russell, for appellee.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J, concurs in the judgment only.


text:
    A96A1932.
    STATE ETHICS COMMISSION v. LONG.
    (478 SE2d 618)
   McMurray, Presiding Judge.

Permission to pursue a discretionary appeal was granted to the State Ethics Commission (“the Commission”) to answer the question whether the superior court erred in failing to award attorney fees under OCGA § 21-5-6 (b) (14) (C) (v), after the Commission prevailed in an enforcement action under the Georgia Ethics in Government Act, OCGA § 21-5-1 et seq. We reverse and remand with direction to enter an award of attorney fees based on the undisputed evidence of record.

The following chronology is undisputed: On August 8, 1994, the Commission filed this “PETITION TO ENFORCE CONSENT ORDER,” alleging that, after “the Commission conducted an investigation concerning whether the Respondent [Lynn Long] failed to disclose, as a candidate for Chairman of the Board of Commissioners of Catoosa County, campaign contributions from various supporters . . . as required by O.C.G.A. § 21-5-34,” the Commission and the respondent entered into a Consent Order, dated November 30, 1993. In that consent order, the Commission and the respondent agreed to the following findings of fact by the State Ethics Commission: “Respondent, Lynn Long, failed to disclose miscellaneous contributions in violation of O.C.G.A. § 21-5-30 (d). This amounts legally to an acceptance of anonymous cash contributions which is prohibited by O.C.G.A. § 21-5-30 (e). The Respondent also failed to maintain proper accounts and records of his campaign funds as required under O.C.G.A. § 21-5-32, failed to maintain a list of contributors in the way and manner provided for by law,' and failed to list his own personal contributions to the campaign as required under O.C.G.A. § 21-5-34. The Respondent admits the substance of these allegations, however, Respondent contends he did not wilfully violate any provisions of law or regulation. The Commission specifically [made] no findings as to whether the Respondent acted with intent.”

“The Respondent [agreed] to file such amendments to previous campaign contribution disclosure reports as are necessary to fully disclose campaign contributions and expenditures received and made in 1992 by the Respondent. Upon filing such amended reports all funds still constituting anonymous contributions shall be delivered to the State of Georgia in accordance with the requirements of the law. . . . The Respondent [further agreed] to pay a total civil penalty of $1,500.00'[in five scheduled payments; . . . with no] portion of the civil penalty [paid] from campaign funds. . . . The Respondent [agreed to] cease and desist from any and all violations of the Ethics in Government Act.” Respondent’s signature to this consent order was attested by H. Kimbrell Sawyer III, counsel for respondent.

The petition to enforce this consent order further alleged that respondent “satisfied the portion of the Consent Order which required payment of a $1,500.00 civil penalty[, . . . but alleged that, in] lieu of an amended campaign contribution disclosure reports [sic], as required by O.C.G.A. § 21-5-34, the Respondent, through his lawyer, sent a single paragraph [unsworn] narrative dated March 14, 1994 purporting to be a suitable amendment.” Respondent’s unsworn submission was captioned “ETHICS IN GOVERNMENT ACT . . . AMENDED CAMPAIGN CONTRIBUTION DISCLOSURE REPORT[, and recites as follows:] COMES NOW Lynn Long, and amends his campaign contribution disclosure reports filed in 1992 as follows: I received from Bill Cohen $1,200.00, Bobby Plemons $2,500.00, Ronnie Byrd and wife $200, Wesley Smith $300.00, John Selmon $200.00, James Mashburn $100.00 and Bill Collison and wife $200.00, all of which was originally understood by me to be miscellaneous contributions which did not require disclosure. I also spent at least $826.00 of my own money and any discrepancy between these amendments and my previously filed disclosure statements is resolved. I did not know I had to report my own contributions. Any expenditures shown to be in excess of amounts received came from my own funds. THIS 14TH DAY OF MARCH, 1994. . . . [signed] Lynn Long.”

C. Theodore Lee, Executive Secretary of the State Ethics Commission, wrote to respondent’s counsel on March 31, 1994, informing counsel that “[a]ny amendment must be in compliance with the requirements of O.C.G.A. section 21-5-34 for original reports!, . . . and that] funds should be reported for the time period in which they were received.” Mr. Lee enclosed two proper report forms, and stated his intention to refer respondent’s submissions to the State Ethics Commission, “so the Commission can decide as a body whether the terms of the Consent Order have been complied with.” Counsel replied in a letter dated April 11, 1994, contending that “Mr. Long has fulfilled his legal duty under the consent order!, and opining that] the Commission has no further jurisdiction over Mr. Long in this matter.” Counsel further contended that the Commission was “singling out Mr. Long in an arbitrary and capricious manner in violation of [respondent’s] civil rights under 42 U. S. C. § 1983.” Invoking the Georgia Open Records Law, OCGA § 50-18-70, counsel demanded copies of “[a]ny and all insurance policies maintained by the State Ethics Commission!, . . . and advising that] a failure to comply with this'request [within three days] will subject you [C. Theodore Lee, Esquire,] to misdemeanor criminal charges under O.C.G.A. § 50-18-74 and your agency to civil penalties provided for in O.C.G.A. § 50-18-73.” In a letter dated April 15, 1994, Mr. Lee replied to counsel’s demand, informing him that the documents counsel sought “are not in the custody or control of the State Ethics Commission!, and requesting that counsel] direct all [future] correspondence to [the Commission’s] legal counsel, [a] Senior Assistant Attorney General. . . .”

In response to the August 8, 1994, petition to enforce the consent order, respondent submitted a “SPECIAL APPEARANCE TO CONTEST JURISDICTION; ANSWER, AND COUNTERCLAIMS OF RESPONDENT . . . AND COMPLAINT FOR PERMANENT INJUNCTION.” Respondent denied being in violation of the consent order, arguing that it “makes no difference whether the information was provided on an ‘official’ State form or not. Likewise, it makes no difference that the information was ‘unsworn.’ ” In his counterclaims, respondent alleged a “conspiracy to deprive [him] of his constitutional rights, to cause damage to his reputation, [and] to cause him unnecessary trouble and expense.” He ultimately demanded “recoupment and/or setoff of the $1,500.00 paid . . . because of Petitioner’s^ i.e., the Commission’s, alleged] wilful and intentional breach of the term of good faith and fair dealing implied as a matter of law in the Consent Order.”

After discovery, the Commission moved for summary judgment. The Commission simultaneously moved for “an award of $6550.00 for attorney’s fees incurred in the prosecution of the . . . action,” under the authority of OCGA § 21-5-6 (b) (14) (C) (v). This motion for attorney fees was supported by the affidavit of Julia Gonzalez, Assistant Attorney General, wherein she deposed that she had spent “74 hours prosecuting this enforcement action and defending the counterclaims filed by Respondent, many of which were spent addressing Respondent’s counsel’s failure to proceed diligently with discovery!; . . . and that the] fair market rate for an attorney with similar experience for this type of litigation is $75.00 per hour.” This affidavit was marked “[fjiled in office!,] June 23, 1995 . . . /s/ Norman L. Stone, Clerk.”

On July 27, 1995, the superior court ordered that the discovery period be “extended for an additional six months from March 7, 1995,” that is, to September 7, 1995. On February 1, 1996, respondent filed his response and cross-motion for summary judgment. On Monday, February 26, 1996, the superior court granted the Commission’s motion for summary judgment and ordered respondent “to comply with the requirements of the [Ethics in Government] Act,” OCGA § 21-5-1 et seq. The following Monday, March 4, 1996, the Commission filed a “SUPPLEMENT TO PETITIONER’S MOTION FOR ATTORNEY’S FEES,” consisting of the affidavit of Assistant Attorney General Julia Gonzalez. She deposed that she “spent 95.4 hours prosecuting this enforcement action and defending the counterclaims filed by Respondent!, and demanded] a total of $ 7,155.00 in attorney’s fees. . . .” On March 18, 1996, respondent moved to strike this supplemental affidavit on the ground that it was “not filed prior to the hearing conducted . . . and is therefore untimely as a matter of law and should not be considered for any purpose.”

In an order entered March 22, 1996, the superior court agreed that this supplemental affidavit was untimely. The order recites that a hearing was held where both the Commission’s motion for summary judgment and its motion for attorney fees were argued; that no evidence was introduced to the court on the issue of attorney fees; and no evidence was offered to show that the conduct of respondent or counsel authorized an award of attorney fees. The superior court concluded that “respondent complied with the spirit of the law if not the letter in this action”; and that OCGA § 21-5-6 (b) (14) (C) (iv) “appears to deny the respondent due process on its face,” by ostensibly denying respondent an administrative opportunity to show that he had not violated the terms of the consent order while precluding an independent inquiry by the superior court. Consequently, the superior court denied the Commission’s motion for attorney fees, reasoning that no “automatic award of attorney fees to the Commission would be justified, notwithstanding the language of O.C.G.A. § 21-5-6 (b) (14) (C) (v).”

The Commission’s application for discretionary appeal was granted by this Court and a timely notice of appeal was filed. Held:

In its sole enumeration of error, the Commission contends the trial court erred in failing to award attorney fees under the Georgia Ethics in Government Act, OCGA § 21-5-1 et seq. The Commission argues that, since the superior court had granted the Commission’s motion for summary judgment and enforced the consent order, the superior court was required to make an award of attorney fees. We agree.

1. The Georgia Ethics in Government Act (“the Act”) was enacted “to protect the integrity of the democratic process and to ensure fair elections for constitutional[, . . .] state[, . . . and local] offices.” OCGA § 21-5-2. The General Assembly concluded that “it is for the public to determine whether significant private interests of public officers have influenced the state’s public officers to the detriment of their public duties and responsibilities, and [that], in order to make that determination and hold the public officers accountable, the public must have access to the disclosure of the significant private interests of the public officers of this state.”

To that end, the Commission is empowered “[t]o prescribe the forms to be used in complying with [the Act].” OCGA § 21-5-6 (b) (1). The Commission has the duty to “determine whether the required statements and reports have been filed and, if so, whether they conform to the requirements of [the Act].” OCGA § 21-5-6 (b) (8). The Commission has the further duty to “issue orders, after the completion of appropriate proceedings, directing compliance with [the Act] or prohibiting the actual or threatened commission of any conduct constituting a violation [of the Act].” OCGA § 21-5-6 (b) (14). The Attorney General may “bring an action in the superior court in the name of the commission for a temporary restraining order or other injunctive relief or for civil penalties assessed against any person violating any provision of [the Act] or any rule or regulation duly issued by the commission.” OCGA § 21-5-6 (b) (14) (C) (iii). Likewise, the Commission is empowered to “petition the superior court within the county where the hearing was or is being conducted for the enforcement of any order issued in connection with such hearing!.]” OCGA § 21-5-6 (b) (16).

“In any action brought by the Attorney General to enforce any of the provisions of [the Act] or of any rule or regulation issued by the commission, the judgment, if in favor of the commission shall provide that the defendant [or respondent] pay to the commission the costs, including reasonable attorneys’ fees, incurred by the commission in the prosecution of such action!.]” (Emphasis supplied.) OCGA § 21-5-6 (b) (14) (C) (v). In our view, the superior court erred in concluding that respondent’s good faith in this case precluded an award of attorney fees to the Commission in its successful enforcement action, especially since the submission failed to comply with OCGA § 21-5-34 (b) (1) (A) and (b) (2). The time to demonstrate one’s utmost good faith in complying with the Ethics in Government Act is during the administrative process in the first instance.

“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art. . . .” OCGA § 1-3-1 (b). “In view of the evils which it is probable the legislature had in view as a possible result [of a candidate’s failure to disclose campaign contributions in a uniform manner, easily understood by the public and in view of the need to induce timely, full, and voluntary compliance with the reporting requirements of the Ethics in Government Act], it can scarcely be doubted that by the use of the word ‘shall’ a legislative mandate, and not a mere permission, was imported into [the enforcement provisions of the Act at OCGA § 21-5-6 (b) (14) (C) (v)]. Besides, in its ordinary signification ‘shall’ is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.” Garrison v. Perkins, 137 Ga. 744, 755 (74 SE 541). In the case sub judice, the superior court granted summary judgment (in the nature of a mandatory injunction) in favor of the Commission ordering respondent to comply with the procedural requirements of the Ethics in Government Act. Consequently, under the plain language of this Code section, the superior court’s judgment “in favor of the commission [should have] provide[d] that the defendant!, respondent here,] pay to the commission the costs, including reasonable attorneys’ fees, incurred by the commission in the prosecution of [this enforcement] action.” OCGA § 21-5-6 (b) (14) (C) (v).

2. Nevertheless, respondent contends the denial of attorney fees was appropriate in this case because the Commission adduced no evidence at the hearing in support of its motion. We disagree.

The first affidavit of Julia Gonzalez in support of the Commission’s motion for attorney fees has been filed of record since June 23, 1995. Consequently, the conclusion of the superior court that, because the Commission tendered no additional evidence, there is no evidence in support of the motion is clearly erroneous. The $75 hourly rate charged by the Assistant Attorney General and the 74 hours she devoted over the course of a year to respondent’s counterclaims and the discovery he propounded are manifestly reasonable, since “[t]his matter could have ended [before litigation commenced] had Respondent [simply] agreed to file [his amendments on] the form provided to him by the State Ethics Commission.” There is no evidence of record to rebut the reasonableness of the hourly rate or the time spent as a result of respondent’s obduracy. Compare Hershiser v. Yorkshire Condominium Assn., 201 Ga. App. 185, 186 (2) (410 SE2d 455) (mere proof of time actually spent does not necessarily prove the reasonableness of claimed attorney fees). Consequently, we reverse the denial of OCGA § 21-5-6 (b) (14) (C) (v) attorney fees in this enforcement action. The case is remanded with direction to enter an award of attorney fees in the amount of $5,550, “incurred in the [successful] prosecution of this enforcement action and in defending the counterclaims asserted by the Respondent.”

Decided November 5, 1996

Reconsideration denied November 20, 1996

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, Julia M. Gonzalez, Assistant Attorney General, for appellant.

Sawyer & Sawyer, Horace K. Sawyer III, for appellee.

Judgment reversed and remanded with direction.

Johnson and Ruffin, JJ, concur.


author: Ruffin, Judge. Beasley, Chief Judge, McMURRAY, Presiding Judge, Pope, Presiding Judge,

text:
    A96A0961.
    McEVER v. WORRELL ENTERPRISES et al.
    (478 SE2d 445)
   Ruffin, Judge.

We granted Michele McEver’s application for discretionary appeal in this workers’ compensation case instituted by her for a recommencement of disability income benefits based on a change in condition. McEver appeals from the superior court order affirming the appellate division’s award, which reversed the award of temporary total disability benefits. The questions are whether the superior court erred as a matter of law in interpreting and applying the burden of proof and whether testimony of the vocational rehabilitation supplier was admissible to meet McEver’s burden of proof. For reasons which follow, we affirm.

The record shows that on June 9, 1993, McEver suffered a compensable injury to her left hand, right leg, back, and head during a work-related automobile wreck. On July 19, 1993, Dr. Vodas returned McEver to full-time work with restrictions. McEver was terminated on August 12, 1993 for reasons unrelated to her injury. On March 4, 1994, Dr. Vodas released McEver from his care with no permanent disability rating.

At her hearing before the Administrative Law Judge (“ALJ”), McEver testified that none of her prospective employers failed to hire her because of her alleged restrictions. Clem Boatright, a vocational rehabilitation supplier retained for the purpose of testifying at the hearing on behalf of McEver, stated that he believed two of the prospective employers he contacted did not hire McEver because of her limitations. His opinion was based strictly on his telephone conversations with prospective employers, and he testified repeatedly regarding what he was told by these prospective employers. Moreover, Boatright admitted that neither of these employers said that McEver’s injury would preclude her from being hired.

The ALJ found that McEver’s efforts to obtain suitable alternative employment were unsuccessful because of the ongoing effects of her compensable injuries. This finding was based solely on Boat-right’s expert testimony. The appellate division vacated the ALJ’s award, concluding the expert opinion testimony of Boatright was inadmissible because it was based solely on inadmissible hearsay. The appellate division noted that “Mr. Boatright based his opinion that appellant would not be hired by two prospective employers solely on what those two employers told him on the telephone in response to a phone inquiry.” On appeal, the superior court affirmed the award of the appellate division, holding that “[t]o allow expert opinion testimony under the circumstances found in this case would allow experts to opine as to why a person did not do something they were never asked to do or given the opportunity to do or not do.” We agree and affirm the superior court’s order.

1. In her first enumeration of error, McEver asserts the superior court erred as a matter of law in applying the burden of proof set forth in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), which was expressly overruled in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). Although Maloney overruled Aden’s Minit Market to the extent that it imposed an additional burden on the employee to prove the reasons why she was not hired by a prospective employer, Maloney still noted that in order to receive workers’ compensation benefits based on a change in condition, “a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” Maloney, supra at 828. Maloney confirmed the rule in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), requiring the claimant to show that her inability to secure suitable employment elsewhere was proximately caused by her previous accidental injury. Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996).

In the present case, the ALJ awarded McEver temporary total disability benefits, finding McEver met her burden of proof under Aden’s Minit Market, notwithstanding the fact that the ALJ specifically refused to consider as inadmissible hearsay McEver’s and Boat-right’s testimony regarding reasons cited by potential employers for refusing to hire her. The ALJ’s decision was based strictly on Boat-right’s expert testimony regarding why McEver’s efforts to return to work were unsuccessful. The appellate division vacated the ALJ’s award because this expert testimony was based solely on inadmissible hearsay and because Boatright’s testimony was the only evidence supporting the ALJ’s findings.

It is clear from the ALJ’s award, as well as the appellate division’s award and the superior court’s order, that the proper burden of proof was employed in this case, notwithstanding the ALJ’s reference to Aden’s Minit Market. Contrary to McEver’s contention, Maloney does not completely eliminate the proximate cause element from the claimant’s burden of proof. The claimant simply is no longer required to produce direct evidence of proximate cause. Once the claimant shows that she has made diligent but unsuccessful efforts to obtain suitable employment, the factfinder may, in its discretion, infer from the evidence that the claimant’s disability is the proximate cause of her unemployment. However, Maloney does not require the fact-finder to draw this inference, and it is not an abuse of discretion for it to make an alternative inference. That is, the factfinder could properly infer that the claimant’s continuing unemployment was due to a number of reasons other than her disability. Thus, it is not necessarily sufficient for the claimant simply to show that she has unsuccessfully sought employment.

In the present case, neither the ALJ nor the appellate division chose to infer from McEver’s own testimony that her disability proximately caused her inability to obtain employment. The ALJ did not draw this inference from McEver’s testimony, indicating that its finding regarding proximate cause was based solely upon the testimony of the expert witness. Similarly, in reversing the award of the ALJ, the appellate division implicitly rejected this inference, concluding that “the testimony of Mr. Boatwright is the only evidence in the record which supports the Findings of Fact of the administrative law judge. . . .” The superior court then affirmed the appellate division’s findings, concluding that McEver’s own testimony discounted the Maloney inference when she “admitted that none of these employers denied her employment because of her work related injury.” While there may be credible evidence within the record upon which the ALJ or the appellate division reasonably could have drawn this inference, we are unable to find error in their failure to do so. Thus, we cannot conclude that the superior court erred in affirming the award of the appellate division.

2. In her second enumeration of error, McEver contends the appellate division and superior court erred by finding that Boat-right’s expert testimony was based entirely on hearsay and was, therefore, inadmissible. We disagree.

A similar issue was recently addressed by this Court in Gordon County Farm v. Maloney, 214 Ga. App. 253 (447 SE2d 623) (1994), rev’d on other grounds, 265 Ga. 825 (462 SE2d 606) (1995). While the Supreme Court reversed that case based on the employee’s burden of proof as established by Aden’s Minit Market, the Court did not alter this court’s analysis of and ruling on the claimant’s inadmissible hearsay testimony. In Gordon County Farm, we held the claimant’s testimony that the manager of a restaurant where she applied for a job would not hire her because she was on workers’ compensation was admitted to prove the truth of the potential employer’s statements and was inadmissible hearsay. Id. at 255.

While an expert may partially base his opinions on hearsay, an expert opinion may not be based exclusively upon hearsay unless it falls within one of the recognized exceptions to the general rule. See Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 180-181 (2) (421 SE2d 767) (1992); Haynes v. Huff, 165 Ga. App. 192, 193 (299 SE2d 902) (1983). Boatright’s testimony in the present case does not fall under any of these exceptions. During the hearing, Boatright testified that he based his opinion on “[t]he responses of these employers.” Moreover, Boatright admitted these two potential employers never actually refused to hire McEver. Thus, even if Boatright’s testimony was admissible, it would be insufficient to carry McEver’s burden of proof under Maloney.

The cases cited by the ALJ in support of his reliance on Boat-right’s expert opinion deal with instances where the expert’s opinion is based only in part on hearsay, is based on personal knowledge and observations, or is based on facts as proved by other witnesses. See King v. Browning, 246 Ga. 46 (1) (268 SE2d 653) (1980) (surveyor opinion based on facts as proved by other witnesses); Cheek v. Wainwright, 246 Ga. 171 (3) (269 SE2d 443) (1980) (surveyor opinion, citing above case); Wood v. Browning-Ferris Indus. of Ga., 206 Ga. App. 707 (2) (426 SE2d 186) (1992) (medical expert opinion based on X-rays taken by another under his supervision and personally observed by him); Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152 (3) (392 SE2d 897) (1990) (physician opinion either not based on hearsay or only based in part on hearsay); Blackburn v. State, 180 Ga. App. 436 (3) (349 SE2d 286) (1986) (opinion based only in part on hearsay); Avant Trucking Co. v. Stallion, 159 Ga. App. 198 (1) (283 SE2d 7) (1981) (opinion testimony of police officer who testified as lay witness and based opinion on hearsay held inadmissible); Sunset Villa v. Mothner-Simowitz Ins. Agency, 142 Ga. App. 424 (236 SE2d 156) (1977) (insurance agents testified based on personal knowledge of insurance business and insurance carrier at issue).

In the present case, Boatright’s opinions were not based on personal knowledge or observations and were not based on facts as proved by other witnesses. Rather, his opinions were based solely on hearsay statements from his telephone conversations with prospective employers who did not testify at the hearing. Based on the facts in the record, we cannot conclude that the appellate division or the superior court erred in refusing to consider Boatright’s testimony regarding the causal connection between McEver’s inability to obtain suitable employment elsewhere and her previous accidental injury.

Judgment affirmed.

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

Beasley, Chief Judge,

dissenting.

This case, which is now on its third level of appeal, must be reversed. On the first level of appeal, to the Appellate Division of the Board of Workers’ Compensation, the board was required to consider the case in accordance with OCGA § 34-9-103, as amended effective July 1, 1994. Subsection (a) provides in part: “The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of the competent and credible evidence contained within the records.” See Clinical Arts v. Smith, 218 Ga. App. 681, 682 (462 SE2d 757) (1995). There are two issues here: burden of proof and competent evidence.

This is an economic change in condition case under OCGA § 34-9-104, involving an alleged change in the claimant’s wage-earning capacity after a non-work-related termination. Consequently, “claimant must establish by a preponderance of the evidence that . . . she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995), reiterating the holding in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978). The claimant has the burden of establishing these facts because “the dispositive issue [is] whether an employee sustained a loss of earning capacity as a result of a compensable work-related injury,” i.e., proximate cause. Maloney, supra at 827.

To meet this burden, the claimant need not show the reasons prospective employers did not hire her. As the Supreme Court recognized, that is often an impossible burden requiring evidence of motive and state of mind of the employer. Id. at 828. Instead, the ALJ could draw reasonable inferences, from what the claimant was required to prove and all the attendant circumstances, that the claimant was not hired because of the continuing disability. Thus the element of proximate cause can be proved inferentially, and the claimant’s burden is satisfied by showing the facts from which that inference can reasonably be drawn.

The vocational rehabilitation specialist, who assisted claimant in trying to obtain a job, gave his “expert opinion” that the reason the job search was not fruitful was the claimant’s injured hand. He was accepted by the ALJ as “an expert in rehabilitation counseling.” He contacted six employers he believed had jobs suitable to the claimant’s condition and skills.

The ALJ depended on this opinion in finding proximate cause. But that opinion was not needed; even if such a specialist is qualified as an expert, he is no better equipped to discern what prospective employers’ motives and states of mind are than is the factfinder who can draw reasonable inferences from the evidence of repeated turn-downs by employers who are made aware of the disabilities.

This is even clearer in the circumstances of this case, where the specialist’s opinion was based not on visits with employers but on mere telephone conversations with two of them, and claimant never even made application to either one. This basis was nothing more than extrapolated hearsay and was not within the rule of OCGA § 24-9-67. The ALJ recognized this and did not consider it. Whether or not such evidence is admissible hearsay is irrelevant, as it was offered to directly prove a fact which Maloney confirms is not required in order for the claimant to meet her burden.

The ALJ based his finding of proximate cause in part on the specialist’s opinion as to why the job search failed, acknowledging that the opinion was based “in part” on hearsay. The other “part” was the specialist’s testimony that rehabilitation suppliers such as he routinely rely on such input from employers. The board concluded that the opinion was based entirely on hearsay so that the opinion was inadmissible altogether. An expert’s opinion based on information derived from private conversations with third parties is inadmissible. Moore v. State, 221 Ga. 636, 643 (5) (146 SE2d 895) (1966).

Whether wholly or partly founded on hearsay, the opinion is inadmissible because it usurps the province of the factfinder; the Supreme Court concluded in Maloney that the factfinder could draw the reasons for the turndowns from the details of the search for employment itself together with the fact that it was unsuccessful. Maloney, supra at 828. Although expert opinion is admissible under OCGA § 24-9-67, it is to be received only where helpful or necessary. Jones v. State, 232 Ga. 762, 764 (2) (208 SE2d 850) (1974). Although it might be argued that the specialist’s opinion could be helpful to the factfinder in this case, it certainly was not necessary because the Supreme Court has ruled that the fact is discernible by inferences drawn by the factfinder. But the specialist’s opinion is inadmissible for the reason that, as stated in Jones, supra, “[a]s a general rule the witness is not allowed to express on the stand an opinion of ultimate fact or the very fact to be decided by the [factfinder] because to do so would invade the province of the jury.” The ALJ, not the expert, was to decide whether the injury was the proximate cause of claimant’s inability to find suitable employment. See, e.g., Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592 (4) (452 SE2d 159) (1994).

The factfinder did not have the benefit of Maloney in his analysis of the evidence and the fashioning of an award. Neither did the appellate division, as its decision was April 28, 1995, and Maloney was decided on October 16, 1995. Likewise, the superior court’s judgment of October 10 was reached before Maloney.

The material misconception of the law which affected every level of consideration of this case requires that it be reversed and returned to the ALJ for application of the correct legal principles as to evidence and burden of proof.

McMURRAY, Presiding Judge,

dissenting.

I respectfully dissent from the judgment affirming the denial of Michele McEver’s claim for renewed disability income benefits, as my review of the record reveals ample competent evidence to support the award for a change in economic condition as made by the administrative law judge. A claimant may satisfy the implicit proximate cause element of present-day OCGA § 34-9-104 (a) “by showing that she labored under a continuing disability and that she made a diligent but unsuccessful search for subsequent suitable employment.” Maloney v. Gordon County Farms, 265 Ga. 825, 827 (462 SE2d 606). This showing does not require expert testimony. The salient evidence here is undisputed: prospective employers were informed of claimant’s diminished abilities owing to a compensable event and she was never extended an offer of employment. “The proffered evidence and reasonable inferences drawn therefrom [would] support [an award for change of condition].” Maloney v. Gordon County Farms, 265 Ga. 825, 829, supra. In my view, the appellate division and the superior court erred in ignoring claimant’s own testimony that she diligently but unsuccessfully sought suitable employment, after termination for cause unrelated to her previous compensable injury. The appellate division and the superior court erroneously analyzed this claim as if the testimony of Clem Boatright, a vocation rehabilitation expert, was the only competent evidence to establish a change of condition. That is an erroneous theory of law which requires reversal. In my view, the judgment of the superior court should be reversed and the case remanded to the appellate division for further proceedings which expressly incorporate the proper evidentiary test for a compensable change in condition as recently enunciated by the Supreme Court of Georgia. See, e.g., Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 (464 SE2d 234). As my colleagues in the majority would nevertheless affirm, despite the application of an erroneous legal theory by the appellate division and the superior court, I respectfully dissent.

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

Pope, Presiding Judge,

dissenting.

I join in Presiding Judge McMurray’s dissent. I write separately to emphasize the Supreme Court’s explicit holding in Maloney, if a claimant suffers physical limitations from a prior compensable injury and diligently but unsuccessfully seeks suitable employment, it may be inferred that the continuing disability proximately caused the inability to obtain suitable employment. Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995). There is no further burden on the claimant to show why he was not hired by prospective employers. Id.

Thus, the expert testimony based totally on hearsay was not crucial to a finding of proximate cause in this case. Because the ALJ clearly relied on this inadmissible testimony in finding proximate cause, the Board was not wrong in rejecting his finding; but because there is other evidence from which proximate cause could be inferred under Maloney, the case should be remanded as Presiding Judge McMurray suggests.

The majority points out that under Maloney, the claimant’s diligent but unsuccessful search is sufficient to support a finding of proximate cause, but does not mandate such a determination. Clearly this is correct, and the factfinder’s decision on whether or not to infer proximate cause from the claimant’s showing should be respected. It is equally clear, however, that in this case the factfinder/ALJ never made a decision on this question, since at the time the ALJ issued his order (and at the time the appellate division concluded there was no other evidence supporting the ALJ’s award), Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991) had not been overruled and the claimant’s diligent but unsuccessful search was insufficient to support a finding of proximate cause as a matter of law.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

Decided November 20, 1996

Mundy & Gammage, Kelly B. Gammage, for appellant.

Saveli & Williams, Carrie L. Christie, Mark S. Gannon, for appellees.

       The majority opinion’s reference to inference drawing by the appellate division of the board is misleading, as the appellate division is not a factfinder in a de novo sense.


author: Pope, Presiding Judge.

text:
    A96A1464.
    BROOKS et al. v. H & H CREEK, INC. et al.
    (478 SE2d 451)
   Pope, Presiding Judge.

Plaintiffs Susan Brooks and her husband sued SherwinWilliams, Inc. and defendants H & H Creek, Inc. and Randy Clark in Baldwin County as joint tortfeasors for malicious prosecution. They also asserted several contract claims against defendants arising out of defendants’ construction of their home. Defendants counterclaimed with a lien foreclosure based on plaintiffs’ failure to pay the balance due on their home. After plaintiffs dismissed Sherwin-Williams from the lawsuit and dismissed their contract claims against defendants, defendants successfully moved to change venue to their county of residence, Laurens County. There, defendants obtained summary judgment regarding plaintiffs’ malicious prosecution claim. Plaintiffs contend that the trial court erred in dismissing that claim and that the change of venue was improper. Concluding that the change in venue was proper, but that summary judgment was not, we affirm in part and reverse in part.

In determining whether the trial court erred in granting defendants’ summary judgment motion, we construe the evidence most favorably to plaintiffs as the opponents of the motion. See Turner v. Regal Ins. Co., 201 Ga. App. 720, 721 (411 SE2d 802) (1991). So construed, the evidence shows that in 1992, plaintiffs entered into a contract with H & H, whose president is Randy Clark, to build a house on Lake Sinclair. The initial cost-estimate for the house was approximately $160,000. Due to cost overruns, this estimate was revised to $180,000.

On June 2, 1993, shortly after learning about the revised estimate, Susan Brooks went to a Sherwin-Williams store in Milledgeville, Georgia to purchase wallpaper. She requested that the wallpaper be charged to H & H. After verifying that H & H had an account at the store in Laurens County, the manager of the Milledgeville store processed the sale. Although Brooks did not obtain express permission from H & H to make the charge, the record shows that it was customary for homeowners to make such charges. It also is undisputed that an allowance for wallpaper was included in the original estimate of construction costs. Additionally, the cost for the wallpaper was included in a detailed report that H & H prepared on July 15, 1993 and submitted to plaintiffs to demonstrate all the charges incurred in building the house, which eventually cost $198,000.

During July and August 1993, Sherwin-Williams sent invoices and bills to H & H for the wallpaper. Sherwin-Williams’ Dublin store manager, Jimmy Townsend, handled the collection efforts, and was informed by H & H that one of H & H’s customers had made the purchase but was refusing to pay H & H. Sherwin-Williams’ practice was to pursue collection from its account holders, not the account holder’s customers, unless the account holder indicated that the charges were not authorized. Sherwin-Williams asked Clark to sign an affidavit to that effect as H & H’s representative. Clark agreed.

In his affidavit, Clark stated that H & H’s account had been used to purchase the wallpaper without its consent, knowledge or approval. He also claimed that the wallpaper referred to in the invoices was not received by, used by, or in the possession of H & H. He further affirmed that the wallpaper purchase was not authorized and that H & H was not knowledgeable as to who had received or charged the wallpaper to its account. Additionally, he stated that he understood that the affidavit was part of a report of a criminal offense and that he might be required to testify in court.

Based on the information in the affidavit, one of SherwinWilliams’ employees obtained a warrant against Brooks for theft by taking. Brooks was arrested in November 1993. The charges against her, however, were dismissed following a commitment hearing which took place in December 1993.

1. “A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40. In such cases an aggrieved party has a heavy burden, but “may prevail if each of the following elements is pled and proved: (1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff.” (Citation omitted.) Willis v. Brassell, 220 Ga. App. 348, 350 (469 SE2d 733) (1996).

(a) The trial court concluded that plaintiff could not meet the first element because the decision to take out the warrant was made by employees of Sherwin-Williams. We disagree. “The law draws a fine line of demarcation between cases where a party directly or indirectly urges [the initiation of] criminal proceedings and cases where a party merely relays facts to [one] who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for malicious prosecution; in the latter case there is not. It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable.” (Citation and punctuation omitted.) Id. at 350-351 (1) (a). A person may be held liable for unduly influencing the decision to prosecute by providing information that is known to be false, misleading or materially incomplete. Id. at 351 (1) (a).

Here, the decision to prosecute Brooks was based on the information Clark provided to Sherwin-Williams on H & H’s behalf. And, there is evidence from which a jury could conclude that that information was known to be false, or was at least materially incomplete and misleading. As set forth above, H & H’s customary practice was to allow its customers to make charges on its accounts as Brooks had done. Thus, there is evidence of implicit authorization for the charges even though Clark stated otherwise to Sherwin-Williams. Contrary to the information supplied by Clark, he and H & H also clearly knew that plaintiff had made the charges in question. This is demonstrated by the July 15, 1993 cost report prepared and submitted to plaintiffs and the fact that Sherwin-Williams previously informed Clark and H & H that Brooks had made the charges. The record further reveals that the wallpaper was received by agents of H & H, who actually hung it in plaintiffs’ house. Consequently, it cannot be said as a matter of law that Clark and H & H were not the instigators of Brooks’ prosecution. Id.

(b) The trial court also concluded that plaintiffs could not demonstrate that Clark and H & H had acted with malice, the fourth element, because there was no evidence that Clark intended for the information he gave to Sherwin-Williams to be used to prosecute Brooks. This conclusion, however, is unfounded. Although it is true that Clark testified under oath that he never intended for the information he supplied to be used to prosecute Brooks, that testimony is in direct conflict with the original affidavit he gave to SherwinWilliams, which specifically stated that the information contained therein was part of a criminal report and that Clark was willing to testify in court.

Additionally, there is evidence in this case from which a jury could conclude that the information was provided to SherwinWilliams in order to pressure plaintiffs into paying the balance due on their house. Specifically, Townsend testified that after Clark signed the original affidavit, either he or H & H’s corporate secretary stated: “maybe this will help us get our money too.” It is also clear that Clark and H & H had an additional financial interest in submitting the affidavit to Sherwin-Williams in that the affidavit would stop collection efforts against H & H. Based on the above, including the representations made in the affidavit, a jury could determine that Clark and H & H acted with an improper motive or with a reckless disregard for or conscious indifference to Brooks’ rights, and therefore, they acted with malice. Id. at 352 (3); Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984).

(c) As the trial court acknowledged, the second and third elements of a malicious prosecution clearly exist in this case because Brooks’ prosecution proceeded under a valid warrant issued by a magistrate and was dismissed at the commitment hearing.

(d) There is also evidence from which a jury could find the existence of the fifth element of malicious prosecution. As discussed in Division 1 (a), a jury could determine that the information Clark supplied to Sherwin-Williams was false, misleading or materially incomplete. Lack of probable cause can be shown through evidence of a defendant’s knowledge that the information being supplied is false or that it fails to set forth a full, fair and complete statement of the facts or conceals facts. Willis, 220 Ga. App. at 353 (4).

(e) Based on her testimony, the jury further could determine that Brooks suffered damages as the result of her arrest and prosecution. Consequently, we hold that the trial court erred in dismissing plaintiffs’ malicious prosecution claim as a matter of law.

2. We find no merit in plaintiffs’ contention that the trial court erred in transferring venue to Laurens County. This contention is premised on the assertion that Clark and H & H’s motion to transfer was untimely. Plaintiffs, however, have cited no authority to support such a position, and we give great deference to the trial court’s conclusion to the contrary. Moreover, based on Collipp v. Newman, 217 Ga. App. 674, 675 (458 SE2d 701) (1995), once plaintiffs voluntarily dismissed Sherwin-Williams from the suit, it is undisputed that venue in Baldwin County vanished with regard to plaintiffs’ malicious prosecution claim. And, we will not reverse the trial court’s decision not to sever the lien foreclosure action from that claim pursuant to OCGA § 9-11-42 (b) absent a manifest abuse of discretion. See Vitner v. Funk, 182 Ga. App. 39, 42 (1) (354 SE2d 666) (1987); Wheels & Brakes v. Capital Ford Truck Sales, 167 Ga. App. 532, 533 (1) (307 SE2d 13) (1983).

Based on the record evidence, no such abuse of discretion exists in this case in light of the fact that only one witness identified during discovery resides in Baldwin County, while the majority reside in Laurens County, and the fact that there is no evidence of prejudice to plaintiffs resulting from the decision not to sever the claims. Furthermore, the decision not to sever the malicious prosecution claim from the counterclaim was authorized for purposes of judicial economy due to the close relationship between each claim. See Wheels & Brakes, 167 Ga. App. at 533 (1). Accordingly, we affirm the transfer of venue to Laurens County.

Judgment affirmed in part and reversed in part.

Andrews and Smith, JJ., concur.

Decided November 20, 1996.

Waddell, Emerson & Buice, Elmarie A. Emerson, for appellants.

Martin, Snow, Grant & Napier, William H. Larsen, Freeman & Hawkins, Roger M. Goode, Jones, Hilburn & Claxton, Eric L. Jones, Morris S. Robertson, for appellees.