text:
    A98A1012.
    LEOPOLD et al. v. ST. PAUL’S GREEK ORTHODOX CHURCH et al.
    (509 SE2d 121)
   McMurray, Presiding Judge.

This appeal followed an order dismissing Stratton Leopold and others’ (plaintiffs) petition for an injunction to stop the removal and replacement of religious icons and an iconscreen inside the sanctuary at St. Paul’s Greek Orthodox Church in Savannah, Georgia. The trial court’s dismissal order provides (in pertinent part) as follows: “Plaintiffs brought this Petition for Injunction as a class-action, on their own behalf, and on behalf of the majority of the members of St. Paul’s Greek Orthodox Church who voted at a duly called and convened Special Parish Assembly meeting on January 28,1996. Defendant St. Paul’s Greek Orthodox Church (hereinafter ‘Defendant St. Paul’s’) is a Non-Profit Georgia corporation which has been incorporated under the laws of the State of Georgia since 1907. Defendant St. Paul’s received title to its real property by a Deed dated August 1,1949 and thereafter said Deed was recorded in the Office of the Clerk of the Superior Court of Chatham County.

“This dispute involves the fate of the current iconscreen and icons found inside St. Paul’s Greek Orthodox Church located at 1401 Bull Street, Savannah, Chatham County, Georgia. Plaintiffs brought this Petition seeking a Temporary and Permanent Restraining Order restraining Defendant from attempting to remove, replace or otherwise dispose of the iconscreen and icons. Plaintiffs also ask that the Court permanently enjoin Defendant ‘from denying the validity of the actions taken by a majority vote during the January 28, 1996 Special Parish Assembly Meeting.’ Finally, Plaintiffs seek an injunction against the Church preventing it from executing any contract or expending any funds for the removal, replacement or disposition of the iconscreen and icons from their present location and that it be further enjoined from executing any contract or expending any funds for the purchase or erection of a new or a different iconscreen or icons.

“Defendant St. Paul’s has moved to dismiss the Plaintiffs’ Petition contending that the central issue in this case unnecessarily involves this Court in ecclesiastical affairs which this Court is prohibited from engaging in under the First Amendment to the United States Constitution and under the provisions of the Constitution of the State of Georgia. Plaintiffs then moved for summary judgment and the Court entertained oral argument on said motion on July 15, 1997. Having taken all matters under advisement the Court now issues the following ruling, dispositive of all pending motions and the request for interlocutory injunction.

Background

I. Hierarchy of the Orthodox Church!Corporate Nature of St. Paul’s

“Under Georgia constitutional jurisprudence there are two types of church governments: congregational and hierarchical. A congregational church is independent of other associations, , while a hierarchical church is associated with other churches that share similar faith and doctrine and have a common ecclesiastical head. Crumbley v. Soloman, 243 Ga. 343, 254 S.E.2d 330 (1979). The Eastern Orthodox Church is a hierarchical church government. Kedroff v. St. Nicholas Cathedral of Russia Orthodox Church, 344 U. S. 94 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696, 724 (IV) (1976). It is undisputed that Defendant St. Paul’s is a Parish (local community church) chartered by the Greek Orthodox Church Diocese of America and [is] hierarchical in nature. It is further undisputed that the Church is structured whereby an Archbishop heads the Archdiocese, and the Archdiocese is then split up into a diocese [led] by a Bishop with its chief administrative assistant being the Chancellor of the Diocese. The Parish is headed by a Priest appointed by the Bishop of the Diocese in which the Parish is located.

“The Parish of St. Paul’s was first formally incorporated under Georgia law in 1907. It is now organized as a non-profit corporation under Georgia’s Non-Profit Corporation Code. The corporation officially adopted By-Laws dated January 26, 1992, . . . which incorporated the Special Regulations and Uniform Parish Regulations of the Greek Orthodox Archdiocese of North and South America, as periodically amended (hereinafter ‘Special Regulations’). The corporation’s By-Laws, at Article VIII, further provide that any by-law which conflicts with any provisions of the Special Regulations shall be void.

“The Special Regulations provide a hierarchy of governance within the local Parish. Furthermore, the local Parish is not free to ignore or violate the Special Regulations and remain part of the Greek Orthodox Church. Each Parish is cooperatively administered by its Priest and Parish Council. The Parish Council consists of the Priest and fifteen parishioners and is ‘responsible for conducting all affairs of the Parish in keeping with the aims and purposes as set forth in the Special Regulations. . . .’ The Parish Council is also deemed to be the Board of Directors of the corporate entity. The Parish Council is vested with the authority to, inter alia, ‘buy, sell or mortgage Parish property . . .’ and may ‘exercise all additional authority consonant with the Regulations herein, the Parish ByLaws, and the limitations imposed by the laws of the state in which the Parish is incorporated.’

“The members of the Parish are called parishioners. To be a parishioner in good standing, certain financial obligations to the Parish have to be met as well as certain religious obligations and requirements. All parishioners in good standing are members of the Parish Assembly. Parish Assemblies are required to be held whenever the Parish Council deems it necessary or when a written petition is presented to the Parish Council ‘stating the purpose thereon for such meeting.’ The meetings of the Parish Assembly are to be conducted in accordance with Robert’s Rules of Order. The parishioners elect Parish Council members who are nominated at Parish Assemblies. Parish Council members do not serve until their election is ratified by the Bishop.

II. Property Rights at Issue

“Defendant St. Paul’s concedes that pursuant to the Special Regulations, the Parish ‘hold(s) title to all real and personal property in its corporate name and no other, except as otherwise required by any applicable law.’ This is the common practice for every Parish in the Greek Orthodox Diocese. However, Defendant further points to the Special Regulations’ language which puts control of such property in the hands of the Parish Council when it provides that the ‘Parish Council shall administer such property for the Parish.’ Defendant St. Paul’s contends that renovation of an existing church building is subject to hierarchical decision making as specified in the Special Regulations, Art. II, § 4. This section of the Special Regulations, which Defendant further argues is at the heart of this case, provides as follows: ‘In order to maintain an Archdiocesan standard for architectural iconographic and artistic integrity, before a Parish shall proceed to have final plans prepared for the erection of a church structure or other parish building, the major structural alteration to an existing church structure or other parish building, or the decoration, including iconography, of a church structure, it shall submit the preliminary plans therefor to the Bishop who shall forward the same to the Archbishop for approval. All final plans for any such construction, alteration, and/or decoration, shall be submitted to the Bishop in a like manner for approval by the Archbishop before the Parish enters into any contract for the accomplishment of the work.’

“Finally, Defendant presented testimony from the Chancellor of the Greek Orthodox Diocese, Atlanta, and at least one Plaintiff conceded during cross-examination that under church doctrine and theology, parishioners may not dispose of their property or make changes in the church structure without the consent and approval of the Diocese/Bishop. In fact, all church property held in the name of the local Parish is subject to the Bishop’s and Archbishop’s direction, as the local Parishes are deemed ‘stewards’ of that property in the name of Christ, His Church, and in the name of the Archdiocese[.] Under church law, these parishioners do not own St. Paul’s Church.

III. Iconography

“As set forth above, the dispute in this case involves the icon-screen (also called the ‘iconstation’ or ‘iconstasis’),. . . located inside St. Paul’s Church. The iconstation is a screen upon which religious images, or icons, are depicted. An icon is a holy image that has been consecrated by a Bishop, and is considered ‘visual Scripture.’ In Orthodox theology, parishioners do not pray to the icons, instead parishioners pray through the image, to God. The iconscreen physically separates the altar from the church proper[.] No one, including artists performing work on icons, can touch the icons unless they are recognized monographers or otherwise approved through ceremony for such work. Furthermore, icons are never discarded, even when damaged; they must be packaged and sent to Constantinople, where they will be burned.

“Defendant St. Paul’s challenged renovation plans entail replacing the current iconstasis with a new one incorporating Byzantine iconography. There are two styles of iconography at issue here: the Byzantine, or traditional style, and the Renaissance or Western style. The central distinction between the Byzantine style and the Western style is that the Byzantine style is not intended to be lifelike. The icons must . . . not be in the worldly terms and are thus depicted through the use of elongated noses, fingers and hands on the persons shown. The existing iconography is in the Western style; a style that is tolerated, but not in conformity with orthodoxy. These icons were originally approved as they would have been in the only art available at that time. In the early part of this century, the Orthodox Church began directing in accordance with church doctrine, that all renovations and new construction be done in the Byzantine style, as the one Orthodox architectural style.

IV. Factual Backdrop of Present Dispute

“As set forth above, a Special Parish Assembly meeting took place on October 24, 1993 and a majority of the members present voted to proceed with a proposed $750,000.00 renovation of the Church. As the renovation plans subsequently developed, this vote included a plan to replace the iconstation and icons in the sanctuary due to their allegedly deteriorating condition. On February 22, 1994, Bishop Philip of Atlanta, the Bishop at the time, approved the plans submitted by Defendant St. Paul’s. After some research and inspection by experts in the field, several Parish members determined the iconstasis and icons were in the experts’ opinion, not in poor condition and could simply [be] cleaned and restored, rather than destroyed and replaced. At this point, these members and others in good standing presented a petition and requested via postcards, a special meeting to re-examine the issue of renovation. Subsequently, the church office sent out a notice or agenda concerning the special meeting of the Parish Assembly. The notice and postcards specifically addressed the plan of moving to reconsider the interior renovation project approved back in 1993. Bishop Philip became aware of the brewing dispute and instructed the Priest and Parish Council not to have the General Assembly until he returned from a trip to Greece. The Special General Assembly was had despite this instruction.

“This Special General Assembly Meeting was held on January 28, 1996. After moving to rescind the prior 1993 Assembly decision dealing with the iconscreen and icons,. . . and the same being seconded, a secret vote was taken on the issue. The vote was 63 in favor of the motion and 56 against it; a simple majority. A dispute ensued as to whether the recission [sic] could be accomplished by a simple majority vote or necessitated a two-thirds vote. All material concerning the dispute was provided to then presiding Bishop, Bishop Iakovos. The Bishop ruled against the Petitioners. The Bishop made his decision ‘after a careful and prayerful study and consideration of all issues involved.’ He wrote a letter to the Parish setting forth his decision and directed in relevant part that, ‘[a]ll steps taken by the Parish Council and the Committee on Renovation and Capital Improvements leading up to, and including, the February 22, 1994 approval of the planned project by Bishop Philip are VALID AND MUST BE RESPECTED.’ The Bishop went on to say that[,] while the committee was instructed to consult with the architect and iconographer as to the most creative and appropriate placement and/or incorporation of the present screen and its icons in the scheme of the renovation, the iconscreen and icons were to be replaced. As a matter of church doctrine and ecclesiastical law, the Special General Assembly cannot make a decision contrary to the Bishop’s ruling. Subsequently, Plaintiff parishioners filed the subject petition.

Discussion of Issues

“Based upon the entire record and after considering the arguments of counsel, both written and oral, the Court finds it is prohibited by the First Amendment, applicable to the courts of Georgia by the Fourteenth Amendment, from exercising judicial authority in this dispute. McDonnell v. Episcopal Diocese, 191 Ga. App. 174, 175, 381 S.E.2d 126 (1989) (physical precedent only) citing Milivojevich, supra (holding that the Illinois state courts contravened the First and Fourteenth Amendments by engaging in improper inquiries into ecclesiastical matters, a prohibited zone even though some property questions were involved); Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987); Monahan v. Sims, 163 Ga. App. 354, 359 (2), 294 S.E.2d 548 (1982). The civil court cannot take jurisdiction of an ecclesiastical issue even if the parties present it for resolution, because the First Amendment prohibits such action by the civil judicial system. McDonnell, supra. Furthermore, ‘civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.’ McDonnell, supra, 191 Ga. App. at 177 citing Milivojevich, supra, 426 U. S. at 713. The Court finds that what is involved here falls within that territory, which must remain foreign to civil tribunals. Though the dispute centers around the iconstation and icons, which admittedly are items of physical property, the Court would necessarily have to delve into ecclesiastical matters by examining the Bishop’s and Defendant’s decision to change the style of iconography via replacing the current iconstasis and icons. The style of iconography and movement to replace church property with Byzantine style as well as decisions as to the handling and disposition of the iconstation, are matters deeply rooted in the religious beliefs of the Church. Plaintiffs would have this Court determine whether or not the Bishop has the authority to instruct the Parishioners, over their vote, as to the fate of the iconstation. This the Court cannot do.” (Footnotes and trial court’s references to the record omitted.)

Held:

Plaintiffs contend the case sub judice involves a property dispute which can be resolved under “neutral principles of law” — a permissible category of court inquiry. See Kidist Mariam Ethiopian Orthodox Tawahedo Church v. Kidist Mariam Ethiopian Orthodox Tawahedo Church, 219 Ga. App. 470, 472 (1) (465 SE2d 491). We do not agree.

There is no question (under “neutral principles of law”) that plaintiffs, as members of the local parish, are conferred with property rights to the icons and iconscreen which are the subject of this dispute. Nor is it disputed that plaintiffs voluntarily subject themselves to hierarchical church authority and that this authority deemed it necessary to remove and replace the icons and iconscreen in St. Paul’s Greek Orthodox Church because this property is not compatible with the religious organization’s practices and principles. Under such circumstances, we agree with the trial court that any judicial tampering with this directive would involve an impermissible interference under the First Amendment of the United States Constitution, applicable via the Fourteenth Amendment. See McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174 (381 SE2d 126).

Decided November 10, 1998

Gannam & Gnann, Michael J. Gannam, for appellants.

Duffy, Feemster & Lewis, George L. Lewis, for appellees.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


source: Caselaw Access Project

author: Beasley, Judge. Ruffin, Judge,

license: Public Domain

text:
    A98A1130, A98A1131.
    THEBAUT v. GEORGIA BOARD OF DENTISTRY; and vice versa.
    (509 SE2d 125)
   Beasley, Judge.

The Georgia Board of Dentistry commenced an administrative proceeding to sanction Dr. Thebaut, a pediatric dentist, based upon his proposed treatment of two children. Following a lengthy hearing, the administrative law judge issued an initial decision against the Board, holding the evidence did not support a finding that Dr. Thebaut’s actions fell below minimal standards of acceptable and prevailing dental practice. The Board, on its own motion, elected to consider the case itself. After a hearing in which only Dr. Thebaut testified, the Board in the final decision adopted all but one of the ALJ’s findings of fact and all of his conclusions of law. Substituted was its finding that with regard to one patient Dr. Thebaut’s recommendations fell below the requisite standards. The Board ordered that Dr. Thebaut be sent a letter of concern and that the matter be closed.

Citing among other things lack of evidence, Dr. Thebaut sought judicial review by the superior court, which affirmed. Dr. Thebaut’s discretionary appeal is Case No. A98A1130. The Board’s cross-appeal, Case No. A98A1131, contests the trial court’s jurisdiction.

1. Of first order, raised by Dr. Thebaut (Case No. A98A1130), is whether the Board had lost the power to act for failure to comply with OCGA § 50-13-17 (c), because its written decision was rendered more than 30 days following the close of the record, without an express extension. This is not a question of judicial, but rather of administrative, jurisdiction.

The statute does not state that review is foreclosed if such is not done, nor, unlike OCGA § 50-13-17 (a), does it state that failure to render the final Board decision within the prescribed period means that the ALJ’s initial decision becomes the final decision by operation of law. The legislature directed: “Each agency shall render a final decision in contested cases within 30 days after the close of the record required by Code Section 50-13-13 except that any agency, by order, may extend such period in any case in which it shall find that the complexity of the issues and the length of the record require an extension of the period, in which event the agency shall render a decision at the earliest date practicable.” The Board’s decision was rendered considerably later than 30 days following the close of the record, although it had not formally exercised its expressly provided discretion to extend the time.

Safety Fire Commr. v. U.S.A. Gas held that the 30-day requirement in OCGA § 50-13-17 (c) “is directory, not mandatory.” Failure of the fire commissioner to comply with the time requirement did not invalidate his decision. The case relied upon, Collins v. Birchfield, had explained that although “shall” ordinarily is a word of command, “in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, ‘ “shall” denotes simple futurity rather than a command.’ [Cit.]” Although Collins is nonprecedential, the principle quoted is. Collins also upheld a late decision even though the controlling statute allowed a late decision only if both parties consented, which they did not. Commr. of Ins. v. Stryker followed this same rationale to hold that OCGA § 33-2-23 (a), requiring the insurance commissioner to issue an order within 30 days after the hearing, was only directory and did not invalidate a late order.

This rationale arises out of OCGA § 1-3-1 (c), which provides: “A substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” To invalidate an agency decision or action, the statute must explicitly state such is the penalty for noncompliance. “This provision of statutory construction has been applied in many cases to statutes which provide that certain acts must be performed by public officials within specified periods of time.”

In keeping with this statute, it has long been a principle of Georgia statutory construction that “statutes directing the mode of proceeding by public officers, designated to promote method, system uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow noncompliance.” The two indications are harm and express cessation of authority. Based on this principle, failure to conclude a hearing within sixty days, failure of a recount committee to meet within forty-eight hours of their appointment, and appointment of a public officer three days before the authorized period did not invalidate the agency decision or action.

We similarly hold that because no harm is shown nor authority withdrawn, the Board’s written decision on Dr. Thebaut beyond the time prescribed in OCGA § 50-13-17 (c) was not void for want of jurisdiction. Nevertheless, the agency should aggressively endeavor to meet the time allotted so as to fulfill the purpose expressed, which is to achieve expedition so as to serve the public’s interest.

Case No. A98A1131

2. Next addressed is whether judicial review was available. The Board argues that its final decision did not aggrieve Dr. Thebaut and thus was not subject to judicial review. The Board reasons that a letter of concern is not a form of disciplinary action and is not disclosed to anyone but Dr. Thebaut.

OCGA § 50-13-19 (a) provides: “Any person who has exhausted all administrative remedies available within the, agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.” The Board does not dispute that Dr. Thebaut has exhausted all administrative remedies nor that he was involved in a contested case that resulted in a final decision. Because Black’s Law Dictionary defines “aggrieved” as having suffered injury or loss, the Board argues that Dr. Thebaut would suffer no injury or loss by receiving a private letter of concern.

Ga. Power Co. v. Campaign for a Prosperous Ga. defines “aggrieved” as used in this statute more broadly than does Black’s Law Dictionary. “In the context of the Administrative Practice Act, the word ‘aggrieved’ has been interpreted to mean that the person seeking to appeal must show that he has an interest in the agency decision that has been specially and adversely affected thereby. [Cit.]”

Dr. Thebaut had a professional interest in the Board’s decision that criticized his actions and ordered he be sent a formal letter of concern. Detrimental official action condemning professional judgment offends professional pride and self-confidence, has a chilling effect on the recipient’s approach to his practice, and constitutes a negative entry in the records of the professional’s governing agency, regardless of the alleged non-public nature of the letter’s contents. The court did not err in exercising jurisdiction over his petition for judicial review.

The Board’s argument that OCGA § 43-1-19 (j) mandates otherwise is hollow. Under this subsection, any agency board may, without holding a contested case hearing, issue private reprimands or letters of concern, deny reciprocal licenses, deny requests for reinstatement of revoked license, and refuse to issue previously-denied licenses. OCGA § 43-11-47 expands the possible “no hearing” actions by the Georgia Board of Dentistry to include denials of applications to use a particular corporate or trade name and denials of licenses on grounds other than those enumerated in OCGA § 43-11-47 (a). Normally these preliminary or summary actions would follow the Board’s initial investigative inquiry into a matter. They are among the less severe actions available to the Board and do not trigger any rights of the licensee or applicant to demand the full hearing and accompanying panoply of rights guaranteed by the Georgia Administrative Procedure Act (“APA”).

If the Board decides the possibility for more severe action exists, it then engages in a “contested case,” which is a proceeding in which the rights, duties, or privileges of a party must be determined by the agency after an opportunity for the hearing described in OCGA § 50-13-13. Following the hearing, the Board issues a final decision in which it exonerates the individual or imposes severe or light sanctions, or no sanctions at all. The Board cannot strip the final decision of its judicial reviewability by imposing a lighter sanction, such as issuing a private reprimand or a letter of concern. Regardless of the nature of the sanctions imposed, the final decision is still a “final decision in a contested case” and is therefore “entitled to judicial review under” the APA.

Thus, the statement in OCGA § 43-1-19 (j) that a letter of concern “shall not be considered a disciplinary action or a contested case” refers only to the ability of a board, if it so chooses, to issue such a letter without conducting a contested case hearing and making the entire case public. But if a board decides to conduct such a hearing, the matter then becomes more public and involved and subject to the full “contested case” provisions of the APA. The fact that the final decision happens to be that the board imposes a lesser sanction such as the issuance of a letter of concern does not exempt that decision from judicial review.

Other jurisdictions agree with this analysis. Murphy v. Bd. of Med. Examiners &c. held that under Arizona law a letter of concern normally is nondisciplinary, is issued only as a result of an investigation finding insufficient evidence to support disciplinary action, and does not come after an adjudicatory hearing. Accordingly, “issuance of a letter of concern is not a final decision subject to review before the agency or superior court. [Cits.]” An appellate court in Colorado agrees.

The Georgia Board conducted an adjudicatory hearing, made findings of fact justifying discipline, and issued a final decision ordering the letter as a result, The absence of these factors precluded judicial review in Arizona and Colorado; their presence in this case makes judicial review available.

The appellee Board’s claim that the letter of concern was nondisciplinary and merely a private matter and not subject to judicial review fails for two reasons. First, it is hardly a private nondisciplinary matter when the Board conducts a full hearing before the ALJ, reviews the matter again in a public hearing, and issues a public decision orally and in writing finding the doctor’s actions to be below the standard of care and to justify the sending of a letter of concern. Second, private or not and disciplinary or not, the letter of concern is not being appealed here; it is the Board’s final decision after a contested case hearing that is being appealed.

The court did not err in exercising jurisdiction over the case.

Case No. A98A1130

3. Dr. Thebaut claims the evidence did not support the Board’s amended finding that his actions fell below the minimal standards of acceptable and prevailing dental practice. He argues the Board relied solely on its own review of the physical evidence to judge his actions and had no expert testimony to support a finding of inappropriate care.

OCGA § 50-13-19 (h) (5) provides that a court may reverse an agency’s decision if the agency’s findings are “[cjlearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. . . .” Hall v. Ault construed this language to mean that the agency’s findings must be upheld if there is any evidence in the record to support them.

The Board as a party presented only the deposition testimony of Dr. Stewart (an orthodontist) and the patient x-rays and dental molds he examined to support its substituted finding that Dr. Thebaut’s recommendation of the use of certain devices to correct some mild crowding of one child’s lower teeth fell below minimal standards. But Dr. Stewart did not so testify. He testified only that in his opinion the “treatment was not indicated.” He conceded that his opinion was nothing more than a philosophical difference with Dr. Thebaut (a pediatric dentist), and that the decision whether to recommend these devices in this child was purely a clinical judgment. He further admitted that he reached his conclusion that “treatment was not indicated” without referring to any textbooks, and that the learned treatises in the area recommended the use of such devices as an option to correct mild crowding, as was present in this child.

On the other hand, Dr. Thebaut called four well-credentialed dentists, all of whom testified without equivocation that Dr. Thebaut’s recommendation was clearly above minimal dentistry standards. These included Dr. Adair, Chairman of the Department of Pediatric Dentistry at the Dental School of the Medical College of Georgia; Dr. Bench, a Diplómate in the American Board of Orthodontics since 1970 and well-known lecturer on dentistry with 33 years of experience; Dr. Samson, dual-trained in pediatric dentistry and orthodontics and a professor at the University of Tennessee and the University of Alabama; and Dr. Lugus, Board Certified in Pediatric Dentistry.

In light of this strong evidence, the ALJ found Dr. Thebaut acted appropriately. On review, the Board rejected this portion of the ALJ’s decision and found that based on its own review of the “physical evidence” (presumably the x-rays and the dental molds), the preponderance of evidence supported a finding that Dr. Thebaut’s actions fell below minimal standards. Curiously, it nevertheless adopted the ALJ’s conclusion of law that Dr. Thebaut had conformed with appropriate standards.

The Board found Dr. Thebaut had acted below the minimal standards despite the absence of any expert testimony to this effect. It relied on its own expertise (most but not all Board members are dentists) and reached its decision based on its own review of the physical evidence. The superior court affirmed.

The Board argues that OCGA § 50-13-15 (4) authorized it to make this finding even without expert testimony. This statute provides: “Official notice may be taken of judicially cognizable facts. In addition, official notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge. Parties shall be notified either before or during the hearing, by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. ...”

The concluding sentence does not authorize the Board to use its expertise to compensate for the absence of key evidence not presented or noticed. OCGA § 50-13-13 (a) (9) emphasizes that ah agency’s “[findings of fact shall be based exclusively on the evidence and on matters officially noticed.” If expert testimony is not presented, the Board cannot fill the void by silently inserting its own collective opinion, unexpressed and uncross-examined, as to the standard and by further inserting its judgment that the standard was not met. Official acknowledgment and use of technical or scientific facts may only follow appropriate notice as set forth in OCGA § 50-13-15 (4).

Hicks v. Harden, a claim for disability, exemplifies these principles. Even though the only expert to appear testified that involutional depression was totally and permanently disabling, the agency itself found that involutional depression was “ ‘not a permanent disability since it begins around the time of menopause and should improve when menopause is completed. Also, this depression does not appear to be psychotic but simply neurotic and, therefore, is not totally disabling.’ ” Citing OCGA § 50-13-15 (4), Hicks reversed the trial court (and thus the ALJ indirectly) on the ground that no prior notice of these contradictory facts was given and thus there was no opportunity to contest them.

Based on administrative procedure acts similar to Georgia’s, a majority of courts in other jurisdictions that have addressed this issue have required expert testimony to establish the standard of care to which the professional is held and to test whether that professional’s conduct fell below that standard.

The South Dakota Supreme Court synthesized the law in this area in another dentistry case. It stated: “These jurisdictions have advanced several reasons for requiring expert testimony in administrative hearings. Some have held that the due process protections of the Constitution require that the professional in danger of losing his license has the right to confront, cross-examine and rebut the witnesses’ testimony and evidence sought to be placed in the record to establish his incompetence.

“A second rationale which also applies to this case is that the boards in many states are not totally comprised of professionals. Many of them contain lay members who are not trained in that particular profession. It has been held that it is improper for the Board to rely on its own expertise in determining competency rather than expert testimony on the record as some of the members do not hold this type of expertise. . . .

“The rationale most often relied upon by these jurisdictions is that expert testimony is required to be placed in the record to allow proper judicial review by appellate courts. When the administrative body applies its own expertise outside the hearing record to set the standard of care and a determination whether a professional violated it, the appellate courts, who are lawyers by training, lack the expertise to review findings of a board concerning medical, dental or any multitude of professions and occupations.

“This startling theory that the Board could use its own expertise without the evidentiary basis of that expertise appearing in the record, if recognized, would not only render absolute a finding opposed to uncontradicted testimony but would render the right of appeal completely inefficacious as well. A board of experts, sitting in a quasi-judicial capacity, cannot be silent witnesses as well as judges. The board may put its expertise to use in evaluating the complexities of technical evidence. However, the board may not use its expertise as a substitute for evidence in the record.”

Rejecting this analysis, a substantial minority of jurisdictions have allowed agency findings of negligence, without expert testimony, based solely on the expertise of the board members. These jurisdictions find that the boards are best qualified by training and expertise to make determinations of competence and therefore expert testimony is unnecessary. But as the South Dakota Supreme Court stated: “The problem with this rationale is that it does not offer any explanation as to how an appellate court is to review the record which is absent of any expert testimony on the standards of the particular professions involved or their violation.”

The majority rationale being the sounder, we hold that “where the issues of competence and negligence are of a complicated nature, expert testimony is required to establish the proper competency standards and whether or not they are met. To do otherwise would render this appellate court’s review meaningless, as absent expert testimony, we cannot, by telepathy, act as mind readers determining from an empty record the factual determinations of the Board members. Administrative expertise would then be on its way to becoming a monster which rules with no practical limits on its discretion.” Of course, with appropriate notification technical and scientific facts may be judicially noticed. Transparency is a crucial ingredient of due process.

At least two cases have reversed agency decisions for lack of evidence where the agency’s expert was equivocal as to the standard of care or as to whether the accused professional complied with that standard. We similarly hold that no evidence supports the Board’s finding that Dr. Thebaut acted below the requisite standards. Thus there is no basis for sanctions or issuance of a letter of concern. The judgment is reversed and the case remanded to the trial court to reinstate the ALJ’s initial decision.

4. This resolution moots the other enumerations of error raised by Dr. Thebaut.

Judgment affirmed in Case No. A98A1131.

Judgment reversed and remanded with direction in Case No. A98A1130. Pope, P. J., and Ruffin, J., concur and concur specially.

Ruffin, Judge,

concurring specially.

I fully concur with the majority opinion. I write separately regarding Division 1 to address what I perceive to be a weakening of the mandatory nature of the word “shall.”

Thebaut correctly notes that OCGA § 50-13-17 (c) requires that an agency “shall render a final decision . . . within 30 days after the close of the record.” (Emphasis supplied.) It is a fundamental principle of statutory construction that “the ordinary signification shall be applied to all words” except words of art and trade words. OCGA § 1-3-1 (b). Ordinarily, “shall” connotes a command. See State v. Henderson, 263 Ga. 508, 510 (436 SE2d 209) (1993) (“must” and “shall” are synonymous); see also In the Interest of R. D. F., 266 Ga. 294, 295 (466 SE2d 572) (1996) (OCGA § 15-11-26, which contains the word “shall,” is construed to be mandatory); Ga. Subsequent Injury Trust Fund v. ITT-Rayonier, 198 Ga. App. 467 (402 SE2d 54) (1991) (the word “shall” in OCGA § 34-9-362 required compliance with time limitation); Van Shallern v. Stanco, 132 Ga. App. 794, 795 (209 SE2d 243) (1974) (Code Ann. § 61-302 containing word “shall” described as “mandatory statutory provision”).

Decided November 10, 1998.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., for appellant.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Alan Gantzhorn, Senior Assistant Attorney General, Kristin R. Loecke, Assistant Attorney General, for appellee.

Notwithstanding the generally accepted meaning of “shall,” however, the Supreme Court of Georgia has carved out an exception for cases in which the word “shall” specifies a time period for the accomplishment of some action. “[W]hen not accompanied by any negative words restraining the doing of the thing afterward, [the word ‘shall’] will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.” Barton v. Atkinson, 228 Ga. 733, 739 (1) (187 SE2d 835) (1972).

“Probably the most firmly established rule of statutory construction is the ‘plain meaning rule.’ ” Pittman v. State, 133 Ga. App. 902, 905 (1) (212 SE2d 505) (1975). Since I believe the plain meaning of “shall” is “must,” I am inclined to agree with Thebaut. Nevertheless, I am constrained by the precedent set forth in Barton, and, therefore, I specially concur.

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

       OCGA § 50-13-17 (c).

       229 Ga. App. 807, 809-810 (5) (494 SE2d 706) (1997).

       214 Ga. App. 144, 146-147 (447 SE2d 38) (1994) (physical precedent only).

       Id. at 146.

       See OCGA § 50-13-12 (b).

       218 Ga. App. 716, 719-720 (8) (463 SE2d 163) (1995).

       See, e.g., OCGA § 50-13-17 (a) (failure to appeal initial decision of ALJ within 30 days automatically makes that decision the decision of the agency); Pine Timber Trucking Co. v. Teal, 230 Ga. App. 362 (1) (496 SE2d 270) (1998) (under workers’ compensation statute, OCGA § 34-9-105 (b), agency decision is automatically affirmed by operation of law if court does not enter order within 20 days of hearing).

        Clayton County v. Evans, 258 Ga. 146, 147 (366 SE2d 282) (1988). It is the predecessor to this statute which governed the statutory construction undertaken by the Supreme Court in Barton v. Atkinson, 228 Ga. 733, 738-739 (1) (187 SE2d 835) (1972). It relied upon two earlier cases which quoted the predecessor statute directly. The principle with respect to certain official action being required within a particular statutory time was apparently first applied in Horkan v. Beasley, 11 Ga. App. 273, 276-278 (75 SE 341) (1912), and involved judicial action. This Court determined that the statute’s requirement was directory, not mandatory, even though the statute used the word “shall.” On the other side of the scale, the legislature has provided that when it uses the word “may,” it sometimes means “must” or “shall.” OCGA § 1-3-3 (10).

       (Citations and punctuation omitted.) Jordan v. State, 223 Ga. App. 176, 182 (2) (477 SE2d 583) (1996); State of Ga. v. Battise, 177 Ga. App. 583, 584 (340 SE2d 240) (1986); Lang v. State, 168 Ga. App. 693, 696 (4) (310 SE2d 276) (1983); Hardison v. Fayssoux, 168 Ga. App. 398, 400 (309 SE2d 397) (1983); Collins v. Nix, 125 Ga. App. 520, 524 (1) (188 SE2d 235) (1972); Southern Security Co. v. American Discount Co., 55 Ga. App. 736, 740 (191 SE 258) (1937).

        Hopping v. Cobb County Fair Assn., 222 Ga. 704, 706 (2) (152 SE2d 356) (1966).

        Middleton v. Moody, 216 Ga. 237, 241 (2) (115 SE2d 567) (1960).

        O’Neal v. Spencer, 203 Ga. 588 (2) (47 SE2d 646) (1948).

       See OCGA § 50-13-19 (a).

       See OCGA § 43-1-19 (j).

       See Black’s Law Dictionary, p. 60 (5th ed. 1979).

       255 Ga. 253 (336 SE2d 790) (1985).

       Id. at 257 (2).

       Except as provided in OCGA § 43-1-19 (o), the provisions of OCGA §§ 43-1-16 through 43-1-24 apply to the Georgia Board of Dentistry, despite the somewhat duplicative provisions found in OCGA § 43-11-47 and other sections of Chapter 11 of Title 43. OCGA § 43-1-25.

       See OCGA § 43-1-19 (d).

       See, e.g., OCGA §§ 50-13-1, 50-13-13; cf. OCGA § 43-11-48 (a) (contested cases before the dentistry board are to be decided in accordance with APA).

       See OCGA § 50-13-2 (2).

       See OCGA § 43-1-19 (d), (e).

       OCGA § 50-13-19 (a).

       949 P2d 530 (Ariz. App. 1997).

       Id. at 538.

        Colorado Bd. of Med. Examiners v. B. L. L., 820 P2d 1190 (Colo. App. 1991).

       Compare In the Matter of Daw, 910 P2d 752, 754-755 (Idaho 1996) (private reprimand following adjudicatory hearing is judicially reviewable even though not specifically provided in rules).

       240 Ga. 585, 586 (242 SE2d 101) (1978).

       See also Safety Fire Commr. v. U.S.A. Gas, supra, 229 Ga. App. at 809 (2); Hicks v. Harden, 133 Ga. App. 789, 790 (2) (213 SE2d 49) (1975).

       See Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 152 Ga. App. 366, 373 (2) (262 SE2d 628) (1979) (“[a]n administrative agency must confine itself to the record before it and afford opportunity for showings contrary to material facts of which official notice has been taken”) (citations and punctuation omitted).

       Supra, 133 Ga. App. at 789-790 (1).

       Id. at 789.

       See Hake v. Arkansas State Med. Bd., 374 SW2d 173, 175-176 (Ark. 1964); Franz v. Bd. of Med. Quality Assurance, 642 P2d 792, 798-799 (Cal. 1982); McKay v. State Bd. of Med. Examiners, 86 P2d 232, 236 (Colo. 1938); Woodfield v. Bd. of Professional Discipline &c. Idaho State Bd. of Medicine, 905 P2d 1047, 1057 (Idaho App. 1995); Smith v. Dept. of Registration &c., 106 NE2d 722, 729-731 (Ill. 1952); Farney v. Anderson, 372 NE2d 151, 152-154 (Ill. App. 1978); Med. Licensing Bd. of Indiana v. Ward, 449 NE2d 1129, 1141-1142 (Ind. App. 1983); Arthurs v. Bd. of Registration in Medicine, 418 NE2d 1236, 1244 (Mass. 1981); New Jersey State Bd. of Optometrists v. Nemitz, 90 A2d 740, 745-746 (N.J. Super. Ct. App. Div. 1952); C. F. Braun & Co. v. Corp. Comm. &c. of Oklahoma, 609 P2d 1268, 1272-1274 (Okla. 1980); Rolfe v. Psychiatric Security Review Bd., 633 P2d 846, 851-853 (Or. App. 1981); In re Schramm, 414 NW2d 31, 35-37 (S.D. 1987); Dotson v. Texas State Bd. of Med. Examiners, 612 SW2d 921, 923-924 (Tex. 1981); Gilbert v. State of Wisconsin, Med. Examining Bd., 349 NW2d 68, 81-82 (Wis. 1984).

        In re Schramm, supra.

       (Citations, punctuation and footnotes omitted.) Id. at 35-36.

       See Croft v. Arizona State Bd. of Dental Examiners, 755 P2d 1191, 1197 (Ariz. App. 1988); Levinson v. Connecticut Bd. of Chiropractic Examiners, 560 A2d 403, 411-415 (Conn. 1989); Hebert v. Louisiana State Racing Comm., 476 S2d 823, 825 (La. App. 1985); Leahy v. North Carolina Bd. of Nursing, 488 SE2d 245, 248 (N.C. 1997); see also cases cited in In re Schramm, supra, 414 NW2d at 36.

       (Footnote omitted.) Id.

       (Citations and punctuation omitted.) Id. at 36-37.

       OCGA § 50-13-15 (4).

       See Franz, supra, 642 P2d at 797; Gilbert, supra, 349 NW2d at 81-82.


author: Judge Harold R. Banke.

text:
    A98A2239.
    BARTRAM ENVIRONMENTAL, INC. v. REHEIS et al.
    (509 SE2d 114)
   Judge Harold R. Banke.

Bartram Environmental, Inc. (“Bartram”) appeals from a superior court order affirming the decision of an administrative law judge which upheld the State’s denial of Bartram’s application for a solid waste landfill permit. Greg A. Emmons, Ron Smith, and Citizens for a Better Jackson County, Inc. (hereinafter “Intervenors”) opposed the issuance of a permit.

The underlying case arose after Bartram applied to the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources for a solid waste handling permit for the construction and operation of a municipal landfill to be built on 402 acres in the City of Arcade (“City”). After extensive planning and expenditures, Bartram requested the City to hold the final public hearing mandated by OCGA § 12-8-24 (d). The City scheduled and advertised the hearing for November 6, 1996, at the Arcade City Hall at 7:00 p.m. In the meantime, the Intervenors sought injunctive relief against the City. On November 1, the trial court issued an order permanently enjoining the City from taking any actions regarding Bar-tram and the proposed landfill site. A few days later, David H. Flint, the attorney for both the City and for Bartram, confirmed with the court that the order enjoined the City from conducting the scheduled public hearing. As a result, the City canceled the public hearing which it had advertised for November 6.

It is undisputed that the EPD cannot issue a permit without (1) a public hearing held “by the governing authority” (of the county or city) in which the solid waste handling facility is to be located; (2) on a date not less than two weeks before the time the permit is to be issued; (3) with at least thirty days advance notice of such hearing posted at the proposed site; and (4) advertised in a newspaper of general circulation serving the county of the proposed activity. OCGA § 12-8-24 (d).

After verifying that the City was absolutely prohibited from holding the scheduled public hearing, Bartram leased the Arcade City Hall for the evening of November 6, 1996, and it conducted a hearing to discuss the proposed landfill. The transcript of that 20-minute. hearing discloses that Pete Denicke, the president of Bar-tram, announced, “I will now call the advertised public hearing to order.” (Emphasis supplied.) Denicke informed the attendees that “[i]n accordance with Section 12-8-24 Subsection (d) of the Georgia Comprehensive Solid Waste Management Act, as amended, notice of this public hearing was advertised in The Jackson Herald. . . .”

On November 8, 1996, Jerald Cohn, chairman of Bartram, directed a letter to the manager of the EPD’s Commercial & Industrial Solid Waste Program. Bartram’s letter to the EPD stated: “[ejnclosed is the certified transcript of the public hearing referred to in O.C.G.A. § 12-8-24 (d) held on Wednesday, November 6, 1996, at the Arcade City Hall. The proposed site was posted with a sign and the hearing was advertised and authorized by the City of Arcade. (See enclosed.) However, in a recent ruling by Judge Robert W. Adamson of the Piedmont Judicial Circuit, the Arcade City Council was prevented from being present at this hearing. Therefore, Bar-tram Environmental conducted the public hearing. We believe that this process meets the requirements of the Georgia Comprehensive Solid Waste Management Act of 1990 as amended. If you have any questions, please do not hesitate to contact me.”

On December 3, 1996, Harold F. Reheis, the Director, EPD, Georgia Department of Natural Resources, notified Bartram that on advice of counsel the EPD would refrain from further processing of Bartram’s application until resolution of the Intervenors’ suit. City of Arcade v. Emmons, 228 Ga. App. 879 (494 SE2d 186) (1997).

In late November, the trial court heard evidence to determine whether the circumstances surrounding the City Hall meeting conducted by Bartram constituted contempt of its order enjoining the City. The court made a specific finding that “there was an effort by Bartram to mislead the EPD by the representations regarding the meeting set forth [in the November 8 letter and its attachments from Bartram to the EPD]. The purpose of that misrepresentation was to procure final action on the subject permit by EPD.” The trial court directed the City to purge itself of contempt by sending an official letter to the Director of the EPD bearing the signatures of the mayor and councilpersons, advising the Director that Bartram’s November 8 letter misrepresented the advertising and authorization by the City and that “anything purporting to be a hearing on November 6, 1996, was not, in fact, a hearing authorized or otherwise allowed by the City.” It is undisputed that Bartram did not inform the EPD of this order. The City appealed, and over a year later, this Court invalidated the order on jurisdictional grounds. Emmons, 228 Ga. App. at 886 (4).

To comply with the court’s directive, on December 6, 1996, the City sent a letter to the Director which stated that Bartram’s November 8 letter to the EPD misrepresented both the advertising and authorization by the City. On January 8, 1997, counsel for Intervenors wrote the Director to inform him about the underlying facts related to the November 6, 1996 hearing. In late January, the Intervenors and certain local legislators met at the State Capitol with the Director to express their concerns about alleged misrepresentations related to the proposed landfill.

After consulting with the Attorney General, the Director informed Bartram in a February 11, 1997 letter that under the authority granted to him under OCGA § 12-8-23.1 (a) (3) (B) (ii), he was refusing to issue the permit as a result of Bartram’s attempt to obtain the permit by misrepresentation or concealment. Bartram appealed the Director’s decision to an ALJ under OCGA § 12-2-2 (c) (2).

The ALJ conducted an evidentiary hearing and determined that the Director’s action was justified. The ALJ found that Bartram attempted to show compliance with OCGA § 12-8-24 (d) by insinuating to the EPD that the public hearing as required by that law had occurred, when, in fact, the governing authority, the City, had been enjoined from holding that hearing. Further, Bartram’s letter of November 8 was found to contain material inaccuracies: (1) that on November 6, the “public hearing referred to in O.C.G.A. § 12-8-24 (d)” had taken place; and (2) that the November 6 hearing was “the hearing [that] was advertised and authorized by the City of Arcade.” In affirming the Director’s decision, the ALJ determined that “through a combination of misrepresentations and concealment, [Bartram] attempted to obtain a permit from the Director. The evidence to that effect being clear and convincing, the Director was authorized to refuse to grant a permit to [Bartram].”

Bartram then unsuccessfully appealed the ALJ’s final decision to the Superior Court of Fulton County. Enumerating three errors, Bar-tram appeals the superior court’s affirmance of the decision of the ALJ. Held:

1. The trial court did not apply an incorrect standard of review to the factual findings of the ALJ. Without question, both the Director and the ALJ were required to find that the factual evidence of misrepresentation and concealment satisfied the clear and convincing evidence standard. Williamson v. Echols, 205 Ga. App. 453, 455 (1) (422 SE2d 329) (1992). Nevertheless, review by a superior court of an administrative agency decision under OCGA § 50-13-19 (h) (5) is restricted to an “any evidence” standard. Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991); Commr. of Ins. v. Stryker, 218 Ga. App. 716, 717 (1) (463 SE2d 163) (1995).

2. The trial court did not err in upholding the decision of the ALJ. Notwithstanding Bartram’s claim to the contrary, the Director’s decision did not lack clear and convincing evidence that Bartram attempted to obtain the permit by misrepresentation or concealment. The required public hearing must be conducted by a “governing authority” not a private entity. The City did not and could not authorize Bartram to act on its behalf and had been permanently enjoined from holding the public hearing it had advertised. The misleading statements uttered by Bartram at the hearing, Bartram’s conduct in submitting the November 8 letter which contained misleading statements, as well as its submission of a so-called “certified copy of the transcript of the public hearing” and the other exhibits relating to advertisement of the hearing and the sign posting, constitute clear and convincing evidence of misrepresentation or concealment justifying the ALJ’s decision. See Flowers v. Ga. Real Estate Comm., 141 Ga. App. 105 (1) (232 SE2d 586) (1977).

Decided November 10, 1998.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellant.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, John E. Hennelly, Isaac Byrd, Assistant Attorneys General, Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellees.

3. Bartram contends that the trial court erred in ruling that its rights to due process were not implicated since Bartram could not “demonstrate the requisite claim of entitlement to a legitimate property interest.” Bartram asserts that it was prejudiced by the Director’s denial of its permit application which it claims the Director based on ex parte communications and political meetings. Bartram alleges that it was never afforded an opportunity to rebut inaccurate information provided to the Director.

Pretermitting any consideration of the nature of the inchoate property interest asserted here, we find that Bartram was afforded due process. See, e.g., Recycle & Recover v. Ga. Bd. of Nat. Resources, 266 Ga. 253, 254 (2) (466 SE2d 197) (1996). “Due process requires that the scheme for granting or denying permits provide objective criteria to control the issuing authority’s discretion and notice of the criteria for issuing or granting a permit. [Cit.]” Quetgles v. City of Columbus, 268 Ga. 619, 622 (4) (491 SE2d 778) (1997).

Without question, Bartram submitted a deficient application which failed to comply with the objective statutory criteria mandating a public hearing be held by the governing authority. OCGA § 12-8-24 (d). See Grove v. Sugar Hill Investment Assoc., 219 Ga. App. 781, 785 (2) (466 SE2d 901) (1996) (implicit purpose of having hearings is to assure public officials’ accountability and to “promote reasoned decisions . . . after public discussion”); see Gouge v. City of Snellville, 249 Ga. 91, 94 (3) (287 SE2d 539) (1982). Further, after the Director denied its application, Bartram had notice and a full opportunity to respond to that decision at the de novo evidentiary hearing conducted by the ALJ. Goldrush II v. City of Marietta, 267 Ga. 683, 694 (6) (482 SE2d 347) (1997). This is all that due process requires. Id.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

Scott R. Tolbert, Ernest Depascale, Jr., amici curiae.

       The ALJ ordered that the Intervenors be made a party respondent.

       Enclosed with the letter were a certified copy of the notice of public hearing, published October 2,1996; a certified copy of the transcript of the public hearing held on November 6, 1996; photos of a sign posted on the site advertising the public hearing; photos taken at the hearing; and a copy of the superior court order from November 1, 1996.

       OCGA § 12-8-23.1 (a) (3) (B) (ii) authorizes the Director to deny a permit “if the director finds by clear and convincing evidence that the applicant for a permit... has obtained or attempted to obtain the permit by misrepresentation or concealment.”


author: Beasley, Judge.

text:
    A98A1993.
    MACKEY v. THE STATE.
    (509 SE2d 68)
   Beasley, Judge.

A jury found Abner Clark Mackey guilty of both rape (OCGA § 16-6-1) and child molestation (OCGA § 16-6-4), as charged in an indictment, based on one incident of forcing his 15-year-old female employee into sexual intercourse. Merging the two counts for sentencing, the court entered a judgment of conviction and sentence on the rape count alone. Mackey enumerates three errors. The first two concern alleged ineffective assistance by the post-judgment attorney handling the motion for new trial, i.e., failure to contend that the trial attorney did not (a) pursue a plea in bar based on double jeopardy or (b) raise an issue of selective prosecution. The third enumeration is that the victim’s examining physician was permitted to testify that his findings were consistent with a sexual assault.

1. “An accused may be prosecuted for both rape and child molestation based upon the same conduct, but he may not be convicted of both.” Even though the rape and child molestation guilty verdicts arose out of the same act of intercourse, trial counsel did not raise a double jeopardy claim on this ground, and post-judgment counsel did not present this omission in the motion for new trial as an instance of ineffective assistance. Failure of post-judgment counsel at the new trial hearing to raise a particular ground for ineffective assistance against trial counsel waives appellate review.

Mackey, representing himself on appeal, claims post-judgment counsel rendered ineffective assistance in waiving this point. Although remand and a hearing on an ineffective assistance claim against post-judgment counsel are generally in order, it is unnecessary here because the matter is determinable from the record.

Trial counsel’s failure to pursue a futile motion or plea does not constitute ineffective assistance. Thus, post-judgment counsel’s decision to omit such a claim against trial counsel would also not constitute ineffective assistance.

A plea based on double jeopardy would yield no surcease from the conviction. No double jeopardy claim arose, for Mackey was not convicted of both counts. The court merged the two guilty verdicts and entered a judgment of conviction and sentence only on the rape count. “Conviction is not the verdict; it is the judgment on the verdict or guilty plea. Therefore, although OCGA § 16-1-7 (a) provides that one cannot be ‘convicted’ of more than one crime arising from the same conduct, this Code section has no application to the verdict.” Mackey does not stand convicted of the child molestation count.

Mackey also argues that the court erred in (a) refusing to give his request to charge the lesser offense of child molestation (citing Parker v. State ) and (b) instructing the jury that “[sjexual acts directed to children are, in law, forcible and against the will of a child.” These asserted deficiencies are not considered on appeal because a party may not expand his enumeration of error by argument and citation in the brief.

Moreover, the claim would fail. Not only did the court charge the jury on the lesser offense, but the jury found Mackey guilty on this count. The court was authorized to sentence on the greater offense nevertheless.

2. Mackey claims that post-judgment counsel also failed to complain of trial counsel’s choice not to raise selective prosecution as a defense. Trial counsel’s omission waived the issue on appeal, and post-judgment counsel’s omission of this ground for an ineffective assistance assertion likewise waived this ground for appellate review. But because selective prosecution as a defense would have failed, neither trial counsel’s nor post-judgment counsel’s actions were constitutionally wanting.

“To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.”

Mackey has only alleged that the victim’s teenage boyfriend, who allegedly had intercourse with the victim two weeks before the rape, was not also prosecuted for child molestation and rape. But Mackey had to show “that others generally are not prosecuted for the same misconduct. . . .” Not only was the misconduct materially different, but identifying only one other person who was not prosecuted is normally insufficient.

As to the second element, Sabel v. State emphasized that “[s]ome selective enforcement is not in itself a constitutional violation. To be a constitutional violation, the selective enforcement must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification.” No discriminatory motive is evident. To the contrary, it is not arbitrary for the State to prosecute a 57-year-old employer who forced himself upon his 15-year-old student trainee, and not to prosecute the victim’s peer boyfriend with whom she willingly (although this “consent” was legally ineffectual) engaged in intercourse.

3. Mackey contends, unsuccessfully, that the court erred in allowing the victim’s physician to testify that, based on the child’s history and the physician’s physical findings, her findings from the physical examination were “consistent with sexual assault” to a reasonable degree of medical certainty. The State did not ask, and the physician did not testify, whether she believed the victim had been sexually assaulted. Testifying that the results of an examination are consistent with sexual assault does not address the ultimate question of fact (whether Mackey raped or sexually molested the child) and is “within the bounds of permissible expert testimony.” It would not be within a jury’s ken to draw a professional inference from medical evidence gathered through expert examination.

Decided November 5, 1998

Reconsideration denied November 12, 1998

Abner C. Mackey, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        Lamar v. State, 243 Ga. 401, 403 (3) (254 SE2d 353) (1979); see OCGA § 16-1-7 (a); Wofford v. State, 226 Ga. App. 487, 488 (1) (486 SE2d 697) (1997).

        Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993); Stone v. State, 229 Ga. App. 367, 370 (2) (494 SE2d 48) (1997); Keanum v. State, 212 Ga. App. 662, 663 (1) (442 SE2d 790) (1994) (specific grounds for ineffective assistance not raised in pleadings or at hearing are waived).

        Martin v. State, 228 Ga. App. 548, 549 (492 SE2d 307) (1997).

       See id. at 550; McClain v. State, 226 Ga. App. 714, 719 (5) (487 SE2d 471) (1997); Elrod v. State, 222 Ga. App. 704, 705 (475 SE2d 710) (1996) (where record sufficient, appellate court may decide ineffectiveness issue without remand).

        Roberts v. State, 263 Ga. 807, 809 (2) (e) (439 SE2d 911) (1994).

       (Citation and punctuation omitted.) Sartin v. State, 223 Ga. App. 759, 761-762 (4) (479 SE2d 354) (1996); see Walthour v. State, 269 Ga. 396, 399 (3) (497 SE2d 799) (1998); Black’s Law Dictionary (5th ed.), p. 301.

        Glisson v. State, 181 Ga. App. 585 (1) (353 SE2d 202) (1987); see Hoover v. State, 198 Ga. App. 481 (2) (402 SE2d 92) (1991).

       256 Ga. 543, 548 (2) (350 SE2d 570) (1986).

        Steed v. Deal, 225 Ga. App. 35 (2) (482 SE2d 527) (1997).

       See, e.g., Glisson, supra, 181 Ga. App. at 585 (1).

        Chaney v. State, 232 Ga. App. 297, 300 (2) (500 SE2d 416) (1998).

        Hayes, supra, 262 Ga. at 882 (2).

       See Roberts, supra, 263 Ga. at 809 (2) (e).

       (Citations and punctuation omitted.) Carver v. State, 185 Ga. App. 436, 438 (3) (364 SE2d 877) (1987).

       (Emphasis in original.) Gayton v. State, 184 Ga. App. 387, 388 (361 SE2d 691) (1987).

       Id.

       250 Ga. 640, 643 (4) (300 SE2d 663) (1983), overruled on other grounds, Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984).

       (Citations omitted.) Sabel, supra, 250 Ga. at 643 (4).

        See Brown v. State, 268 Ga. 154, 155 (486 SE2d 178) (1997); Richardson v. State, 256 Ga. 746, 747 (2) (353 SE2d 342) (1987); Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) (1987).

        Jones v. State, 232 Ga. App. 505, 506 (3) (502 SE2d 345) (1998); Brooks v. State, 231 Ga. App. 561, 565 (5) (500 SE2d 11) (1998); see Allison v. State, 256 Ga. 851, 853 (4)-(6) (353 SE2d 805) (1987).


author: Eldridge, Judge.

text:
    A98A2103.
    COTTON STATES MUTUAL INSURANCE COMPANY v. STALLINGS et al.
    (508 SE2d 688)
   Eldridge, Judge.

Cotton States Mutual Insurance Company (“Cotton States”) appeals the trial court’s order dismissing its complaint for declaratory judgment against Gloria and Lawrence Stallings on the grounds that a declaratory judgment action was not the proper method for determination of the issues involved in this case.

In its complaint, Cotton States set forth the following facts: Cotton States issued to James E. Lowe, Jr., an automobile insurance policy which afforded bodily injury liability coverage in the amount of $50,000 per person. Such insurance policy covered Mr. Lowe’s daughter, Kathryn Marette Lowe.

On March 4,1996, Gloria and Lawrence Stallings were traveling east on County Road 1 in Effingham County, Georgia, in a 1991 Chevrolet C-10. A vehicle driven by Kathryn Marette Lowe was traveling south on County Road 204. At the intersection of the two roads, there was a stop sign for vehicles, such as the Stallings’, which were traveling east on County Road 1. There was no stop sign for vehicles, such as Ms. Lowe’s, which were traveling south on County Road 204.

At the intersection of the two roads, the vehicles collided, and, as a result of the collision, Gloria Stallings was thrown into the bed of the Chevrolet pickup truck, knocked unconscious, and seriously injured. At the scene of the collision, Lawrence Stallings told the police that he was driving the 1991 Chevrolet C-10. Cotton States, however, contends that, based on the physical evidence of the collision, Gloria Stallings was actually driving the Chevrolet C-10.

Cotton States alleged that, if Lawrence Stallings was the driver of the Chevrolet C-10, Cotton States would be willing to offer its policy limits of $50,000 to settle Gloria Stallings’ personal injury claims. However, if the Chevrolet C-10 was driven by Gloria Stallings, Cotton States contended that her negligence of either failing to stop at the stop sign, or failing to yield the right-of-way to Ms. Lowe, would be of such comparative negligence as to defeat any claims Gloria Stallings might assert. Cotton States further alleged that such question of fact has put them in a position of uncertainty and insecurity with respect as to whether they have an obligation to settle Gloria Stallings’ claim for the policy limits. Therefore, Cotton States requested that the trial court determine who was the driver of the 1991 Chevrolet C-10 involved in the collision and find that Cotton States not be considered to be acting in bad faith in failing to offer its policy limits to Gloria Stallings until such determination was made.

Cotton States’ sole enumeration of error is that the trial court erred in dismissing Cotton States’ complaint as a genuine controversy exists, and that its complaint does not disclose with certainty that Cotton States is not entitled to the declaratory relief sought.

(a) Cotton States argues that Gloria Stallings had no standing to bring a motion to dismiss as she was in default at the time she brought such motion. Cotton States did not make this argument below. Accordingly, we cannot consider this argument for the first time on appeal. “We are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at [the trial level]. [Cit.]” Ramsay v. State, 220 Ga. App. 618, 623-624 (469 SE2d 814) (1996).

(b) “The purpose of the Declaratory Judgments Act is ‘to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.’ OCGA § 9-4-1.” Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 344 (489 SE2d 803) (1997). “While our declaratory-judgment statute should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies.” (Citations and punctuation omitted.) Sentry Ins. v. Majeed, 194 Ga. App. 276, 277-278 (390 SE2d 269) (1990), aff’d, 260 Ga. 203 (391 SE2d 649) (1990). “[W]here the rights of the parties have already accrued and there are no circumstances showing any necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest,'the plaintiff is not entitled to a declaratory judgment. The declaratory judgment action makes no provision for a judgment which is advisory.” (Citations and punctuation omitted.) Morgan v. Guaranty Nat. Cos., supra at 344.

Decided October 26, 1998

Reconsideration denied November 12, 1998

Forbes & Bowman, Morton G. Forbes, Catherine M. Bowman, Scot V. Pool, for appellant.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Michael J. Classens, Mary E. Adams, for appellees.

In this case, Cotton States admitted in its complaint that it has a duty to defend under the policy and the rights of the parties thereunder have already accrued. Cotton States is not “walking in the dark” as to what legal duties are imposed upon it under the terms and conditions of the insurance policy. What Cotton States is seeking is a declaration of the viability of its defense to both the main action and any future action that may be filed by the insured for its failure to settle the claim, i.e., that the actual driver of the 1991 Chevrolet C-10 was Gloria Stallings. “A declaratory judgment is not available to a party merely to test the viability of its defenses.” (Citations and punctuation omitted.) Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992).

Therefore, the trial court did not err when it dismissed Cotton States’ declaratory judgment action.

Judgment affirmed.

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


author: ELDRIDGE, Judge.

text:
    A98A2213.
    GIBBS v. ABIOSE.
    (508 SE2d 690)
   ELDRIDGE, Judge.

Appellant Engrid Gibbs was involved in an automobile collision on June 30, 1995 with the appellee Fatai Abiose. Gibbs filed suit seeking recovery of property damages to her automobile, rental car expenses, and court costs. During the course of the litigation, Abiose failed to submit to a court ordered deposition, because he contended that Gibbs bought the Porsche 911 Carrera Targa from Peter Uabesia in a wrecked and unrepaired condition and that no additional damages occurred to the Porsche in the collision between him and Gibbs. Due to Abiose’s failure to submit to deposition, the trial court struck Abiose’s answer and declared him in default as to the issue of liability. The case was tried before a jury on the issue of damages only.

At trial, the evidence showed the following: Gibbs testified that on June 20, 1995, she purchased a Porsche 911 Carrera Targa from Peter Uabesia, d/b/a Pete’s Express Auto, and drove it home. Gibbs further testified that, at the time she purchased the Porsche, it was in good condition and did not have any body damage. Gibbs testified that she did not drive the Porsche again until June 30, 1995, when she drove it from her home to a nearby restaurant. As Gibbs left the restaurant, she was involved in a collision with Abiose. Gibbs testified that she had only driven the Porsche 20 to 30 miles prior to the collision and had not noticed if the speedometer or odometer was working properly.

The police were not called to the scene of the collision between Gibbs and Abiose, and, therefore, there was no investigating police officer’s report. However, Gibbs and Abiose exchanged telephone numbers and insurance information. After the collision, Gibbs drove her automobile to the restaurant where she had just eaten dinner and left it to be picked up by a tow truck.

On August 1, 1995, Edward Clayborn Cooley, a total loss adjuster with Allstate, inspected Gibbs’ Porsche at Sadisco Salvage Yard (“Sadisco”). After Cooley completed his inspection, he sent a report, which included the vehicle identification number and which described the Porsche’s options, to Certified Collateral Corporation (“Certified Collateral”) in order to obtain the current market value of the Porsche. When Certified Collateral sent Allstate its report, Certified Collateral indicated on the report that Sentry Insurance Company (“Sentry”) had requested the current market value on the same automobile a couple of months earlier for the same physical damage.

Cooley contacted Sentry and discovered that the Porsche had previously been in a collision on May 4, 1995, and that Sentry had paid out their property damage limits of $10,000 and allowed the owner to keep the Porsche. A claims representative of Sentry telefaxed copies of photographs its adjuster had taken of the Porsche after the May 4,1995 collision. Cooley determined that the right rear end damage shown on the photographs was identical to the damage he had just noted on the Porsche, with the exception of additional rust where the paint had been knocked off.

Cooley contacted George Hill, an independent appraiser, whom Sentry had requested to inspect the Porsche after the May 4, 1995 collision. Hill testified that he had inspected the Porsche at Sentry’s request on May 12, 1995. On this date, Hill had photographed the Porsche and wrote a report of his inspection. Hill further testified that at the time of his May inspection that, in addition to the damage to the right rear end, the Porsche was generally in poor condition.

After the June 30, 1995 collision between Gibbs and Abiose, Hill, at the request of Abiose, went to Sadisco to re-inspect the Porsche. Hill testified that the Porsche involved in the May 4, 1995 collision was the same Porsche involved in the collision between Gibbs and Abiose, as it had the same vehicle identification number. Hill further testified that the damage to the Porsche was identical to the damage he had previously noted on May 12, 1995, with the exception of additional rust. Additionally, the odometer showed the same mileage as when he had inspected the car on May 12, 1995, indicating that the Porsche had not been driven since.

Hill further testified that he had owned his own body shop for 11 years and had often worked on Porsche automobiles, and that in his opinion there was insufficient time for Gibbs’ Porsche to be repaired between the May 4, 1995 collision and the June 30, 1995 collision. Hill testified that it would take between six and eight weeks to complete the repair work because it would be necessary to specially order parts, and the damage to the Porsche was extensive. Hill also testified that, in his opinion, the Porsche had not been repaired since the May 4, 1995 collision.

Gibbs called her own expert, David Aria. Aria had not seen the Porsche until it was delivered to his repair facility from the Sadisco lot by Gibbs’ attorney. Aria knew nothing about the condition of the Porsche prior to the time it was brought to his lot. Therefore, Aria could not testify as to when the Porsche had been damaged. However, he testified that it could have been damaged on May 4, 1995. Significantly, Aria testified that, whenever the Porsche was damaged, the oil cooler sustained damage, which would have prevented the Porsche from being driven. Aria further testified that, if a vehicle was towed on a flat bed truck, as he towed Gibbs’ Porsche, its mileage would not change on the odometer.

The jury returned a verdict in favor of Gibbs, but found damages in the amount of zero dollars. Gibbs appeals.

1. There was no error in the trial court denying Gibbs’ motion for judgment notwithstanding the verdict. A trial court is only authorized to grant a j.n.o.v. “[w]here there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” (Citations and punctuation omitted.) South Fulton Medical Center v. Poe, 224 Ga. App. 107, 108 (480 SE2d 40) (1996). Under this standard and the evidence in this case, there was no error in the trial court’s denial of Gibbs’ motion for j.n.o.v.

2. Gibbs contends that the trial court erred in admitting evidence as to liability.

OCGA § 9-11-55 (a) provides in relevant part that when a case is in default, the plaintiff is entitled to judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages . . . with the right of the defendant to introduce evidence as to damages[.]” “Defenses which go to the right of recovery are not available to the defendant in default even though the same defense may also go to the assessment of damages. [Cit.]” Whitby v. Maloy, 150 Ga. App. 575, 576 (258 SE2d 181) (1979). Therefore, Abiose would be entitled to “contest the issue of damages by rigid cross-examination and by the introduction of evidence so long as [such evidence] did not touch on the issue of liability. [Cits.]” Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 856 (459 SE2d 592) (1995).

After considering the testimony Gibbs complains of, we conclude that the trial court did not err in allowing it. The challenged testimony that Gibbs’ Porsche had been in a collision approximately eight weeks earlier and that the damage to the Porsche after this collision was identical to the damage that existed after the previous collision did not challenge Abiose’s liability for any damages which occurred in the collision between Abiose and Gibbs or the right of Gibbs to recover such damages, but went only to the amount of damages as shown by the evidence. Accordingly, the testimony was admissible.

3. Gibbs further alleges that the trial court erred in excluding evidence of her damages for towing and storage of the Porsche.

However, the jury found that the damage to Gibbs’ Porsche was not caused by the collision between her and Abiose. Accordingly, the exclusion of evidence of towing and storage, if error, would be harmless.

4. Having examined the appellate record in this case, this Court finds that Gibbs’ assertion that the trial court erred in becoming a partial arbiter in the parties’ controversy and in engaging in unlawful ex-parte communications with defendant’s counsel is meritless.

5. Gibbs alleges that the trial court erred in qualifying Hill and Cooley as expert witnesses and in allowing their opinion testimony.

“Generally speaking, nothing more is required to qualify a witness as an expert than to show that, through education, training, or experience, he has special knowledge concerning the matter of science or skill to which his testimony relates.” (Citations and punctuation omitted.) Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195, 196 (355 SE2d 83) (1987). “This Court has repeatedly held that it is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert.” (Citations and punctuation omitted.) Wingfield v. State, 229 Ga. App. 75, 84 (493 SE2d 235) (1997).

We find there was sufficient evidence to support the trial court’s qualification of both Hill and Cooley as experts in the areas of their opinion testimony. Accordingly, there was no abuse of discretion in the present case.

6. Gibbs asserts that the trial court erred in admitting photographs of the Porsche taken by counsel for Abiose, Hill, and Cooley and in admitting a fax transmission of a photograph which was received by Cooley from Sentry Insurance. Gibbs argues that no foundation had been laid for the introduction of the photographs and that they were not the “best evidence.”

The best evidence objection goes to documentary evidence and not to photographs. “[T]he best evidence rule is a rule which is designed to give preferential treatment to the original writing when the contents of a writing are sought to be proved. [Cits.]” Smith v. State, 236 Ga. 5, 8 (222 SE2d 357) (1976). “The best evidence rule applies only to writings. [Cits.]” Perkins v. State, 260 Ga. 292, 295 (392 SE2d 872) (1990). Therefore, the rule does not apply to photographs. Smith v. State, supra. If the best evidence rule applied to photographs, then the negative from which the photograph was printed would be the “best evidence.”

A foundation was laid for the introduction of the photographs by testimony showing that the photographs were true and accurate representations of the condition of the Porsche. “[T]he quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter within the discretion of the court. [Cit.]” Tenant v. State, 151 Ga. App. 891, 893 (262 SE2d 204) (1979). Contrary to Gibbs’ argument, “[i]t was not necessary to show that the witness himself had taken the photographs, or had them in his custody. [Cit.]” Sackett v. L. L. Minor Co., 244 Ga. 375, 376 (260 SE2d 37) (1979).

Accordingly, there was no abuse of discretion by the trial court in admitting the photographs.

7. The trial court did not err in assessing OCGA § 9-15-14 attorney fees against Gibbs and her counsel.

The trial court granted Abiose’s motion for attorney fees pursuant to OCGA § 9-15-14 (a) and (b) against both Gibbs and her counsel. The trial court determined that Gibbs and her counsel were put on notice at least as early as April 11,1996, pursuant to a letter from Abiose’s counsel, stating that Gibbs’ claim that her Porsche was damaged in the July 7, 1995 collision between the parties to this action lacked substantial justification or any justiciable issue of law or fact, because the damage to the Porsche occurred on May 4, 1995, when Peter Uabesia (who owned the Porsche on May 4,1995, and later sold the Porsche to Gibbs) was involved in a collision. The plaintiff and her counsel did not drop their claim or position, but continued to pursue their claim or position through trial. Additionally, the trial court found that Gibbs and her counsel could not have reasonably believed that a court would accept their asserted position. The trial court further found that, upon the trial of this case and a review of the evidence presented at trial, the factual issues addressed in Abiose’s April 11, 1996 letter were firmly established.

In Mitcham v. Blalock, 268 Ga. 644, 648 (491 SE2d 782) (1997), in determining if an award by the trial court of OCGA § 9-15-14 attorney fees was proper, the Supreme Court found “[t]o the extent the trial court’s award was based on [OCGA] § 9-15-14 (a), it must be sustained if there is any evidence to support it. [Cit.] To the extent the award was based on [OCGA] § 9-15-14 (b), it must be sustained unless the trial court abused its discretion. [Cit.]” The Supreme Court further found that “[t]he evidence outlined [in that case] was sufficient to support the trial court’s award and establishes that the trial court’s award was not an abuse of discretion.” Id.

Likewise, in this case, the evidence was sufficient to support the trial court’s award against Gibbs and her counsel and establishes that the trial court’s award was not an abuse of discretion.

8. Gibbs alleges the trial court erred in denying her attorney fees for having (1) to respond to three motions for protective order filed by Abiose regarding his deposition (two motions were withdrawn prior to Gibbs filing a response and the trial court’s ruling), and (2) to file her motion to strike Abiose’s answer for failure to comply with the court order requiring him to give his deposition.

“Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Citations and punctuation omitted.) West v. Equifax Credit Information Svcs., 230 Ga. App. 41, 42 (495 SE2d 300) (1997).

(a) On April 19, 1996, Abiose filed a motion for protective order on the grounds that Gibbs had noticed his deposition to be taken in Atlanta, Georgia, when in fact he resided in Chicago, Illinois. Gibbs never responded to this motion and, prior to the trial court’s ruling, served Abiose on May 21, 1996, with another notice of his deposition to be taken in Atlanta, Georgia. Abiose filed a second motion for protective order on May 21,1996. Prior to Gibbs’ response to the motions and prior to any ruling by the trial court, Abiose withdrew his motions for protective order on May 31,1996, stating that the parties had agreed to take Abiose’s deposition in the Chicago area.

Gibbs did not respond to Abiose’s first two motions for protective order, did not make a request for attorney fees, and did not submit evidence as to what her reasonable and necessary attorney fees were. Therefore, this portion of Gibbs’ enumeration of error is meritless.

(b) On August 30, 1996, Gibbs served Abiose with a third notice of his deposition which stated that it was to be taken in Atlanta, Georgia. On September 3, 1996, Abiose filed a third motion for protective order requesting the trial court to enter an order that the deposition of Abiose not be taken or, in the alternative that Abiose not be compelled to come to Atlanta. On October 8,1996, Gibbs filed, for the first time, a response to Abiose’s motion for protective order. While Gibbs had requested $750 attorney fees, her counsel did not file an affidavit as to what his reasonable and necessary attorney fees were for having to respond to the motion. On October 11, 1996, the trial court ordered that the parties agree within seven days of October 8, 1996, on a date to take Abiose’s deposition in Chicago, Illinois, and that Abiose’s deposition be taken within thirty days of October 8, 1996. The order did not grant or deny Gibbs’ request for attorney fees for having to respond to the motion.

“A determination of the amount of an award of attorney fees cannot be based on guesswork.” (Citations and punctuation omitted.) Mitcham v. Blalock, 214 Ga. App. 29, 32 (447 SE2d 83) (1994). Gibbs failed to prove the actual and reasonable cost of her having to respond to Abiose’s motion for protective order. Under such circumstances, an award of attorney fees was not authorized, and there can be no abuse of the trial court’s discretion in failing to grant her the requested attorney fees. Id.

(c) On May 23, 1997, after the case had been placed on the trial calendar, Gibbs filed a motion to strike Abiose’s answer, for entry of a default judgment, and for attorney fees for the failure of Abiose to submit to the court ordered deposition. No set amount of attorney fees was requested, and Gibbs’ counsel did not file an affidavit stating what his reasonable and necessary attorney fees were for having to bring the motion. After a hearing, the court entered an order on September 12, 1997, finding that Abiose flagrantly and wilfully defied the terms and conditions of the trial court’s previous order, striking Abiose’s answer, and finding Abiose in default. Ruling on Gibbs’ motion for attorney fees was reserved. Subsequent to the trial court’s order, Gibbs filed a renewed motion for entry of default judgment, which was never ruled on by the trial court; such motion was moot due to the entry of the trial court’s previous order on September 12, 1997.

After the jury’s verdict, Gibbs renewed her request for attorney fees, and the trial court allowed her to submit an affidavit of her counsel in regard thereto. In Gibbs’ counsel’s affidavit, he averred that his reasonable and necessary attorney fees were $1,137.50 for having to file his motion to strike Abiose’s answer and for entry of default judgment and $437.50 for having to file his renewed motion for default judgment. On March 20, 1998, the trial court denied Gibbs’ request for attorney fees.

There was no abuse of discretion by the trial court in denying Gibbs’ motion for attorney fees for having to file her renewed motion for default judgment, as the filing of such motion was unnecessary because the trial court had already struck Abiose’s answer and declared him in default as to the issue of liability.

Further, there was no abuse of discretion in the trial court denying Gibbs’ motion for attorney fees for having to file her motion to strike Abiose’s answer and for entry for default judgment. The ultimate sanction had already been granted by the trial court, i.e., the dismissal of Abiose’s answer and the entry of a default judgment as to liability. Further, at the time of the trial court’s ruling, the trial court had determined that Gibbs had pursued a claim that both she and her counsel knew lacked substantial justification or any justiciable issue of law or fact. To grant an award of attorney fees under these circumstances would be unjust. See OCGA § 9-11-37 (b). The trial court did not err in denying Gibbs’ request for attorney fees.

9. This Court, having found in Divisions 1, 7, and 8 that the trial court properly: (1) denied Gibbs’ motion for j.n.o.v.; (2) granted Abiose’s motion for OCGA § 9-15-14 attorney fees; and (3) denied Gibbs’ request for attorney fees, did not commit any error in denying Gibbs’ motion to amend the finding of facts and to vacate these orders or in denying her motion to set aside these orders.

10. The trial court did not err in denying Gibbs’ motion for new trial.

In addition to a sufficiency of the evidence argument, Gibbs raised several additional arguments in her motion for new trial, all of which have been decided adversely to Gibbs in the previous divisions of this opinion, with the exception of her allegation that the trial court erred in its charge to the jury.

(a) While Gibbs made a broad general allegation in her motion for new trial that the trial court erred in the charge, she did not point to any portion of the charge that she thought was error. Further, on appeal Gibbs’ brief in argument, citation to the record, and authorities do not address any error that the trial court may have made during the charge. Therefore, any error Gibbs may allege occurred in the charge to the jury is abandoned under Court of Appeals Rule 27 (c) (2) (3). Dalton v. Vo, 230 Ga. App. 413 (497 SE2d 245) (1998).

Decided October 26, 1998

Reconsideration denied November 12, 1998

Kunle Ogundele, for appellant.

Fain, Major & Wiley, John K. Miles, Jr., for appellee.

(b) “The appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses. Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict or the verdict is supported by only slight evidence or the evidence is conflicting or preponderates against the verdict[,] where no material error of law appears, this court will not disturb the trial judge’s judgment in overruling the motion for new trial. (Citations and punctuation omitted.)” Haynes v. McCambry, 203 Ga. App. 464, 465 (416 SE2d 893) (1992); Locke v. Vonalt, 189 Ga. App. 783 (377 SE2d 696) (1989). Under the facts of this case, the trial court’s denial of Gibbs’ motion for new trial was not an abuse of discretion.

11. Abiose’s motion to assess frivolous appeal damages and Gibbs’ motion for sanctions against Abiose for the filing of the motion for frivolous appeal are denied.

Judgment affirmed.

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

       Gibbs initially stated to Abiose’s insurer, Allstate Insurance Company (“Allstate”), that the accident occurred on July 7,1995. Gibbs later notified Allstate that the correct date of the accident was June 30, 1995.

       The Porsche’s odometer showed on both occasions that the Porsche had been driven 69,418 miles. Hill’s original report for Sentry stated that the odometer reading was 89,418. However, at trial, Hill explained that a German “6” looks like an “8,” and that initially he had misread the number, because it was dark and rainy and a plastic cover was over the windows, making the interior of the car dark.

       Gibbs also alleges in a separate enumeration of error that the trial court erred in denying her motion for litigation expenses and attorney fees. However, the record does not show that she ever requested any additional attorney fees or litigation expenses. Further, Gibbs did not submit evidence of what such reasonable and necessary attorney fees may have been.


author: McMurray, Presiding Judge.

text:
    A98A1028.
    MATHIS v. THE STATE.
    (510 SE2d 300)
   McMurray, Presiding Judge.

Defendant Mathis filed this pro se appeal from the denial of his motion to vacate, set aside or modify illegal sentence. Held:

“A trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass as occurred here, OCGA § 15-6-3 (8) (D); Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991), but may resentence a defendant at any time if the sentence entered is void, i.e., imposes a sentence the law does not allow. Id.” Manry v. State, 226 Ga. App. 445, 446 (487 SE2d 80). In the case sub judice, defendant Mathis failed to show any basis for holding his sentence void, and thus the superior court had no authority to change defendant’s sentence in response to his motion. Broadwell v. State, 224 Ga. App. 193, 194 (2) (480 SE2d 215).

Decided November 12, 1998

Cecil W. Mathis, Jr., pro se.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Of the two issues argued by defendant in support of his motion, reliance upon Banks v. State, 225 Ga. App. 754, 756 (5) (484 SE2d 786), which requires a sentencing trial court to consider probation as a part of the applicable sentence, was inappropriate since that case is inapplicable to the facts of the case sub judice. Defendant’s second issue, that certain prior convictions had been consolidated for trial within the meaning of OCGA § 17-10-7 (d), also lacks merit under the authority of such cases as Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329); Mims v. State, 225 Ga. App. 331, 332 (2) (484 SE2d 37); Parker v. State, 170 Ga. App. 295, 296 (2) (316 SE2d 855), rev’d on other grounds, Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389).

We have reviewed defendant’s remaining enumerations of error and find no merit in contentions that defendant was entitled to traverse the defenses of the district attorney, discovery of documents, or an oral hearing on his motion. Furthermore, we are unaware of any authority supporting defendant’s contention that he was entitled to appointed counsel to argue his motion. Defendant’s enumerations of error being without merit, the judgment of the superior court must be affirmed.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.