text:
    A98A1818.
    ROCKDALE COUNTY et al. v. FINISHLINE INDUSTRIES, INC. OF GEORGIA.
    (518 SE2d 720)
   Blackburn, Presiding Judge.

Rockdale County and Rockdale County Tax Commissioner (referred to collectively as the County) appeal the trial court’s order in which it granted a Freeport tax exemption pursuant to OCGA § 48-5-48.1 to Finishline Industries, Inc. of Georgia (Finishline). Finishline brought the underlying action in equity seeking a determination that it was entitled to a Freeport exemption and that the County was enjoined from collecting additional taxes. For the reasons set forth below, we reverse the trial court.

In the trial court’s findings of fact, which are not disputed by the parties, it found that Finishline did not file a 1996 personal property report or return or an application for a Freeport exemption for any personal property located on its premises by the filing deadline. It further found that Finishline did not receive a report form from the County as it had in prior years to use for applying for a Freeport exemption. Finishline took no action with regard to its 1996 ad valorem taxes until it received a tax bill in September 1996, when it contacted the Rockdale County Board of Tax Assessors and complained that it had not received a Freeport exemption application or personal property report form. Finishline requested that the Board accept a late application; however, such request was denied as being outside the Board’s authority. Thereafter, Finishline filed the underlying action seeking equitable relief.

1. The burden of timely filing the application for Freeport exemption lies with Finishline. Finishline’s failure to satisfy its burden of proving that it timely filed for such exemption, precludes its entitlement thereto. Applications for Freeport exemptions and personal property report forms are required by law to be furnished by the tax commissioner and filed by the date on which the tax commissioner closes the books. See OCGA § 48-5-48.1 (a). This Court strictly enforces the required filing deadline. See Gwinnett County Bd. of Tax Assessors v. Makita Corp., 218 Ga. App. 175, 177 (460 SE2d 538) (1995). In Makita Corp., we reversed the trial court’s determination that Makita was entitled to a Freeport exemption from ad valorem taxation because Makita failed to prove that it had timely applied for such exemption. In the present case, it is undisputed that the filing deadline of April 1, 1996, was not met by Finishline. Additionally, although the County is required to furnish the report forms, the tax code does not require that the County mail the report forms to taxpayers, or to insure delivery thereof if mailed. The County is required only to make such forms available. There is no evidence in the record that the forms were not available to Finishline by requesting them from the County. We further note that the trial court found that the County contends that it sent a Freeport application form and a personal property report form to the same address as that used for the tax bill, which was received by Finishline.

The statute imposes a duty on the taxpayer to file a timely return. See OCGA § 48-5-48.1. The risk of relying on the U. S. Post Office to deliver forms mailed by the State is on the taxpayer. Any failure to receive the application for Freeport exemption form does not excuse the taxpayer from meeting its burden to file the application, anymore than a failure to receive a state or federal income tax return form would excuse the taxpayer from filing such return. Finishline failed to comply with its statutory duty and, therefore, is not entitled to a Freeport tax exemption for tax year 1996.

2. The trial court determined that Finishline took no action to appeal or otherwise obtain review of the notice of assessment as permitted by law. Two avenues of review are permitted by law in order to obtain relief from an improper tax assessment: (1) Finishline could have appealed the notice of assessment pursuant to OCGA § 48-5-311 which allows appeals “as to matters of taxability, uniformity of assessment, and value”; or (2) Finishline could have paid the amount assessed and sought a refund pursuant to OCGA § 48-5-380 which provides for refunds of taxes “erroneously or illegally assessed.” Either statute provides an adequate remedy at law to contest a tax assessment. See Marconi Avionics v. DeKalb County, 165 Ga. App. 628, 630 (302 SE2d 384) (1983) (“taxpayer need not comply with the appeal procedure provided in OCGA § 48-5-311 (e) . . . prior to proceeding under OCGA § 48-5-380”) and Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 210 (367 SE2d 43) (1988) (“OCGA § 48-5-311 provides a statutory appeal system which authorizes any taxpayer to appeal from an assessment by the county board of tax assessors ‘as to matters of taxability, uniformity of assessment, and value’ ”).

In numerous cases [the Supreme Court of Georgia has] held that a superior court should not exercise its equitable jurisdiction in tax assessment cases to address issues concerning valuation, taxability, uniformity, and constitutionality, including the constitutionality of appraisal methods. Wilkes v. Redding, 242 Ga. 78, 79 (247 SE2d 872) (1978); Barr v. Jackson County, 238 Ga. 332 (232 SE2d 923) (1977); Tax Assessors v. Chitwood, 235 Ga. 147, 153-154 (218 SE2d 759) (1975); Chilivis v. Backus, 236 Ga. 88, 90 (222 SE2d 371) (1976). [They] held that a taxpayer may raise such issues in a statutory appeal, and that such appeals constitute an adequate remedy at law, precluding the court’s exercise of its equitable powers. Wilkes, supra, 242 Ga. at 79. These cases establish that as a matter of policy and judicial economy ad valorem tax disputes should be resolved first at the local level through the appeal procedures created specifically for that purpose.

City of Atlanta v. North By Northwest Civic Assn., 262 Ga. 531, 535-536 (422 SE2d 651) (1992).

In the present case, Finishline contends that the County waived the ability to argue its failure to pursue administrative remedies because it did not raise this issue in the trial court. Finishline’s contention is without merit because subject matter jurisdiction of a court is not a matter which can be waived.

Decided May 27, 1999

Reconsideration denied June 9, 1999 — Cert. applied for.

Maddox, Starnes & Nix, John A. Nix, Thomas A. Bowman, Robert L. Zoeckler, for appellánts.

Serio & Swilley, Salvatore J. Serio, for appellee.

[P]arties cannot by waiver or consent confer equity jurisdiction on a court where it is otherwise without jurisdiction. . . . [E]quitable relief is improper if the complainant has a remedy at law which is adequate, i.e., as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.

(Punctuation omitted.) Sherrer v. Hale, 248 Ga. 793, 797-798 (2) (285 SE2d 714) (1982).

Adequate remedies at law were available to Finishline. See North By Northwest, supra. Therefore, the trial court was without subject matter jurisdiction to adjudicate Finishline’s equitable claims.

Judgment reversed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A0154, A99A0155.
    RENFROE v. ARRINGTON; and vice versa.
    (519 SE2d 3)
   Smith, Judge.

Joann Renfroe filed a complaint alleging dental malpractice against Ronnie Arrington. The trial court granted summary judgment to Arrington on two of the three counts and denied summary judgment on the remaining count. These appeals followed.

In Case No. A99A0154, Renfroe appeals the trial court’s ruling granting summary judgment to Arrington on Count 1, and in Case No. A99A0155 Arrington cross appeals. Because we conclude that Arrington was entitled to summary judgment on all counts of Renfroe’s complaint, we affirm the trial court’s judgment in Case No. A99A0154, and we reverse its judgment in Case No. A99A0155.

The material facts of this case are essentially undisputed. Arrington performed dental work for Renfroe over a period of several months, beginning in February 1995. After performing a dental examination and concluding that Renfroe had mild to moderate periodontal disease, either Arrington or his hygienist performed periodontal cleaning, filled teeth, extracted two teeth, and prepared and fitted Renfroe with dentures. Arrington last saw Renfroe in early August 1995. In October 1995, Renfroe was diagnosed with subacute infectious endocarditis. This disease, according to Arrington,

is an infection of the lining of the heart or the heart valves caused by a blood borne bacteria or other organism. Patients with histories of certain heart problems or rheumatic fever are at risk of [contracting] subacute infectious endocarditis and it is generally considered appropriate to administer an antibiotic as a prophylactic measure prior to undertaking any dental procedure which could cause bleeding.

Renfroe filed this malpractice action, alleging in Count 1 that her illness was caused by Arrington’s failure to obtain a proper medical history and to consult a physician as indicated by her available medical history. In Count 2, she alleged that Arrington extracted teeth without a contemporaneous x-ray film to determine whether, and how much, infection existed in the area of her extracted teeth. In a third count, she alleged that Arrington caused her illness by his failure to ensure that her gums were “periodontally sound” before fitting her for dentures. The trial court granted summary judgment to Arrington on Count 1, concluding that even assuming Arrington failed to take a proper medical history, Renfroe did not show how this failure caused her illness. The court also granted summary judgment to Arrington on Count 3, on the ground that Renfroe failed to show that Arrington’s alleged failure to ensure that her gums were periodontally sound proximately caused Renfroe’s illness. The trial court denied Arrington’s motion concerning Count 2, however, concluding that genuine issues of material fact existed.

1. In Case No. A99A0154, the trial court correctly concluded that Renfroe failed to show that Arrington’s alleged failure to properly obtain her medical history proximately caused her injuries. This claim involves a medical history portion of a patient information form Renfroe completed during her initial visit with Arrington. The second page of the form asks the following questions: “Do you have or have you had any of the following diseases or problems?” Two columns of blocks appear on the form for the patient to mark “yes” or “no” to the question. Renfroe checked “no” to all boxes in the left-hand column indicating that she had never suffered from rheumatic fever or rheumatic heart disease, congenital heart lesions, cardiovascular disease, high or low blood pressure, anemia or blood disorder, asthma or bronchitis, diabetes, shortness of breath, difficulty in breathing, and several other diseases. She checked several boxes marked “yes” in the right-hand column, indicating that she had suffered from all the diseases in that column: tuberculosis, nervous condition, goiter or thyroid disease, convulsion or epilepsy, frequent nose bleeds, venereal disease, and serious childhood diseases. During her deposition, however, Renfroe stated that she had mistakenly checked “yes” to these questions. She also failed to answer some questions on the form, such as whether she was allergic to certain drugs, but she stated during her deposition that these questions were left blank because they did not apply to her and that if she had answered the question, the answer would have been “no.” Renfroe admitted filling out similar forms for other doctors, indicating that she had no health problems, and she denied ever having rheumatic fever, scarlet fever, or any knowledge of any type of heart problems or serious disease before seeing Arrington.

Also during her deposition, Renfroe explained that she became aware, after, she completed Arrington’s patient information form, that she had given an inaccurate response concerning whether she had suffered from anemia or blood disorder. She stated that she did not know the meaning of the word “anemia” at the time she filled out the form but that- she had been told years before that she suffered from “low” blood. Arrington testified by affidavit, however, that during his initial examination of Renfroe, she did not display any signs of anemia and that “[n] either a history of anemia in the past nor the presence of mild anemia during treatment would require a dentist to provide dental treatment in any manner different from that provided by [me]: A dentist would not prescribe an antibiotic because a patient was anemic.”

On motion for summary judgment, Arrington argued that no causal relationship existed between any inadequacy of Renfroe’s medical history obtained by him and her illness. In response, Renfroe submitted the affidavit of her expert, Dr. Finkelstein, which incorporated the earlier expert affidavit she filed in compliance with OCGA § 9-11-9.1. In the earlier affidavit, Finkelstein testified that the initial medical history showed that Renfroe suffered from serious illnesses that would have required consultation with a physician before performing any dental work upon Renfroe or “in the alternative, if the medical history given by Ms. Renfroe was inaccurate, Dr. Arrington failed to get a correct and proper medical history.” He further stated that Arrington’s failure to obtain a proper medical history, among other alleged breaches, “could lead to subacute infectious endocarditis in a patient experiencing treatment such as Ms. Renfroe received from Dr. Arrington.”

Finkelstein’s second affidavit, filed in response to Arrington’s motion for summary judgment, added that Arrington failed to take a proper and complete medical history

in that when presented with a person of the educational and economic background of Ms. Renfroe, a dentist should orally go over each question to be sure that said patient understands the question and to annotate in the chart that this was done along with any corrections or additions that the dentist subsequently finds.

In a subsequent affidavit, Finkelstein testified that after questioning a patient concerning his or her medical history, if the patient is unsure about her medial history, a dentist is required “to contact the patient’s personal physician prior to any invasive procedures. If the plaintiff has no personal physician, the dentist should require the plaintiff to have a checkup with a physician.”

A factual dispute exists as to whether Arrington asked Renfroe, during her initial visit, if all of her responses to the questions on the patient information form were correct. He testified that he did question Renfroe and clarified her responses, while she testified that he did not. We also note that Arrington acknowledged during his deposition, after testifying that he asked Renfroe questions to help clarify and correct her responses, that he should have noted any changes on her record but failed to do so. Arrington, however, still was entitled to summary judgment on this count of Renfroe’s complaint, notwithstanding this factual dispute, together with Arrington’s failure to update Renfroe’s chart, as well as any failure by Arrington to review each individual question with Renfroe and to consult a physician or refer Renfroe to a physician. To prevail on a claim of medical or dental malpractice, a plaintiff must show that the duty inherent in the doctor-patient relationship has been breached and that the breach was the proximate cause of the plaintiff’s injury. Anthony v. Chambless, 231 Ga. App. 657, 659 (500 SE2d 402) (1998). “Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.” (Citations, punctuation, and footnote omitted.) Id.

Here, as observed by the trial court in its well-reasoned order, even assuming that Arrington failed to take a proper medical history by failing to question Renfroe about each response on the form and failing to note on the form that her responses were incorrect, Renfroe has not shown how this failure proximately caused her injuries. If Arrington had reviewed each question with Renfroe, he would have learned that she never had the diseases she indicated on the form, with the exception of anemia, obviating the need to refer her to a physician. And it is clear that Renfroe was not unsure or confused concerning her past medical history, with the exception of her history of anemia. As for her anemia, according to Arrington’s undisputed testimony, this condition would not have required antibiotics, and Arrington would not have altered his course of treatment.

We note some evidence in the record showing that Renfroe suffered from a heart murmur. It is not clear from the record whether this condition existed before Arrington treated Renfroe or was discovered in October 1995 when Renfroe was diagnosed with subacute infectious endocarditis. But the record is clear that Renfroe was not aware of this condition, if it existed, when she was treated by Arrington. When Renfroe was hospitalized in October 1995 and diagnosed with subacute infectious endocarditis, she was treated by Dr. Maki. During Renfroe’s first visit with Dr. Maki, she told him that she had never suffered from rheumatic fever or scarlet fever. She also admitted that when she saw Dr. Maki, she had no knowledge of having any past heart problems. Dr. Maki’s notes contained the following recitation: “[Renfroe] has never heard of having a heart murmur before being identified as having one by her family physician, Dr. Brown.” This shows that if Arrington in fact had questioned Renfroe about each illness indicated on the patient information form, he would not have learned from her that she suffered from a heart murmur, even if one existed at the time of Arrington’s examination.

Because Renfroe clearly was unaware that she suffered from any of the diseases listed on the patient information form, particularly diseases which could have placed her at risk for contracting subacute infectious endocarditis, she has shown no causal relationship between any improper medical history and her injury, and summary judgment in Arrington’s favor was warranted.

Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 205-206 (345 SE2d 904) (1986), relied upon by Renfroe, is not controlling. In Beaver, this court concluded that the defendant’s showing in support of its motion for summary judgment was insufficient on the issue of whether its actions proximately caused plaintiff’s injuries. Id. at 206. But here, Arrington succeeded in piercing Renfroe’s pleadings on the causation issue by showing that she was totally unaware at the time of her initial visit with Arrington of any medical condition identified by Arrington as placing her at risk for subacute infectious endocarditis. As the non-movant on motion for summary judgment, after Arrington pierced her pleadings by showing that no evidence supported the essential element of causation, Renfroe was required to show that genuine issues of fact remained. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). She failed to show a causal connection between any alleged failure to take a proper medical history and her subsequent illness. Her expert’s affidavit stating that Arrington’s failure to obtain a proper medical history could have caused Renfroe’s injuries, was insufficient; as discussed above, the mere possibility that a defendant’s breach of the duty of care caused plaintiff’s injuries cannot establish liability. Chambless, supra at 659.

2. In Case No. A99A0155, Arrington contends the trial court erroneously denied his motion on Count 2 of Renfroe’s complaint. Renfroe alleged in Count 2 that Arrington breached the standard of care by extracting two teeth without taking contemporaneous x-rays “to determine if, and how much, infection existed in the area of the teeth extracted.”

In denying summary judgment to Arrington on Count 2, the trial court determined that a question of fact existed as to whether Renfroe suffered from mild to moderate periodontal disease, as stated by Arrington, or from moderate to severe disease, as stated by Finkelstein. The court referred to Arrington’s deposition testimony that patients with severe periodontal disease are given antibiotics to protect them from bacteria in the bloodstream. Based on these facts, the trial court concluded that a genuine factual issue existed as to whether Renfroe “suffered from severe periodontal disease that would require a contemporaneous x-ray and the administration of antibiotics which may have prevented” her illness.

We agree with Arrington that the trial court erred in denying summary judgment on this count of Renfroe’s complaint. The evidence on which the trial court apparently relied in making its ruling involved Arrington’s testimony concerning the treatment of periodontal disease. He testified that he may have prescribed antibiotics to Renfroe if he had determined that her tooth “had an infection other than a periodontal infection.” Arrington explained that he might prescribe antibiotics if he saw “visible signs of infection” to protect a patient from “bacteremia,” the introduction of bacteria into the bloodstream. He stated that a patient can contract bacteremia from treatment of periodontal disease, and that he knew Renfroe would get bacteremia but did not believe that she would suffer any problem as a result. Arrington acknowledged that he would prescribe an antibiotic for treatment for bacteremia only if a patient’s “periodontal disease was fairly severe.” He found Renfroe’s periodontal disease to be mild to moderate, however, and did not prescribe antibiotics.

Finkelstein’s testimony that Renfroe suffered from moderate to severe periodontal disease, which might have required administration of antibiotics, did nqt create a genuine issue of material fact under the allegations of Renfroe’s complaint. Arrington’s testimony concerning the need for antibiotics concerned measures to be taken during the treatment of periodontal disease, not those to be taken while extracting teeth. But Count 2 of Renfroe’s complaint does not allege that Arrington breached any standard of care concerning treatment of periodontal disease by failing to prescribe an antibiotic.

Even assuming that failure to treat properly Renfroe’s periodontal disease was raised by the complaint and that the evidence showed that she suffered from severe periodontal disease, Renfroe has failed to point to competent evidence showing that any failure by Arrington to prescribe antibiotics or to take x-rays contemporaneously with the extraction of her teeth was the proximate cause of her injury.

On motion for summary judgment, Arrington testified by affidavit that he examined Renfroe’s teeth before the extractions and found improvement of her periodontal disease and “no evidence of the presence of any infection which would indicate a need for prescribing an antibiotic.” After the extractions, he examined the extracted teeth and their sockets, and he testified that “[n]either showed evidence of infection.” He also explained the uses of x-rays ■ and the need for antibiotics with respect to the extraction of teeth:

In the absence of any indication of active infection, it is neither necessary nor appropriate for a dentist to prescribe an antibiotic for the extraction of a tooth. Further, while an x-ray may show an area where an infection could exist, an x-ray cannot confirm or rule out the presence of infection. An x-ray is not an appropriate study for that purpose.

In response, Renfroe submitted the affidavit of her expert, Finkelstein, in which Finkelstein incorporated his earlier OCGA § 9-11-9.1 affidavit, and stated that the x-rays available to Arrington “were not adequate to perform” the extraction of Renfroe’s teeth. Finkelstein’s previous affidavit recited that Arrington breached the standard of care by failing to. perform x-rays contemporaneously with Renfroe’s extractions to determine whether infection existed and whether antibiotics were required and that this breach could lead to the injuries sustained by Renfroe.

Arrington pierced Renfroe’s pleadings by introducing evidence that he saw no signs of infection in the area of the extracted teeth either before or after they were extracted and that an x-ray could not confirm or rule out the presence of an infection. The evidence submitted by Renfroe in response to Arrington’s motion was insufficient to create a genuine issue of material fact. First, Finkelstein testified only that the alleged breach associated with the failure to take contemporaneous x-rays “could” lead to subacute infectious endocarditis, and as discussed above, the mere possibility that a plaintiff was injured as a result of a defendant’s alleged breach of the standard of care is insufficient to sustain a claim for medical malpractice. Chambless, supra at 659. See also Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257) (1997) (summary judgment to hospital affirmed when plaintiff’s expert testified only that possibility existed that decedent’s death could have been prevented through use of measures in addition to medication).

Decided May 24, 1999

Reconsideration denied June 9, 1999.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, Jr., Howard J. Stiller, for appellant.

Hodges, Erwin, Hedrick & Coleman, William A. Erwin, for appellee.

The evidence in this case was uncontradicted that the area of Renfroe’s extractions did not show signs of infection requiring administration of antibiotics and that an x-ray of these teeth made prior to extraction would not have been used in any event to determine whether infection existed. Furthermore, the only evidence that failure to take x-rays contemporaneously with Renfroe’s extractions caused her subsequent illness was purely speculative and conjectural in nature. Under these circumstances, Arrington was entitled to summary judgment on Count 2 of Renfroe’s complaint.

Judgment affirmed in Case No. A99A0154. Judgment reversed in Case No. A99A0155.

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

       The same legal standard that controls the duties of physicians and surgeons controls the duties of dentists to their patients. Gunthorpe v. Daniels, 150 Ga. App. 113 (1) (257 SE2d 199) (1979).


author: Andrews, Judge.

text:
    A99A0475.
    DEPARTMENT OF HUMAN RESOURCES v. MITCHELL.
    (518 SE2d 440)
   Andrews, Judge.

Ronald Paul Mitchell was severely injured while working at Southwestern State Hospital (the hospital) in a community service program as a court-ordered condition of being allowed to serve his sentence for criminal trespass on probation. Mitchell sued the Georgia Department of Human Resources (DHR), which operated the hospital, claiming under the Georgia Tort Claims Act (GTCA) that the DHR, through its employees at the hospital, negligently caused his injuries. After a jury rendered a verdict in favor of Mitchell in the amount of $1,514,982, the trial court entered a judgment reducing the verdict to $1,000,000 under § 50-21-29 of the GTCA. The DHR appeals.

Mitchell was charged with burglary and entered a negotiated plea of guilty to the offense of criminal trespass. As part of the sentence imposed, Mitchell was ordered to serve 12 months on probation and perform 80 hours of community service work. The community service work was ordered as a condition of probation pursuant to the provisions of OCGA §§ 42-8-70 through 42-8-74 (the community service act), which sets forth procedures governing work by probationers for public or private agencies approved by the court to participate in a community service program. The DHR hospital was an agency approved by the superior court for participation in a community service program. While performing community service work at the DHR hospital under the direction and supervision of hospital employees, Mitchell suffered severe injuries when he fell from a truck being operated by a hospital employee.

Mitchell sued the DHR under the GTCA alleging it was liable for the negligence of its employees in failing to properly supervise him and in failing to properly operate the truck, which failures he alleged were the proximate cause of his injuries. After the case was tried before a jury on allegations of ordinary and gross negligence, the jury rendered a verdict in favor of Mitchell concluding that his injuries were caused by the ordinary negligence of the DHR hospital.

1. The DHR claims that, because the hospital was approved by the court as an agency participating in a community service program for probationers pursuant to the community service act, it was entitled to immunity from liability for Mitchell’s injuries under the provisions of OCGA § 42-8-71 (d). Accordingly, the DHR claims the trial court erred by denying its motion to dismiss and motion for a directed verdict made on the ground that it was immune from liability for ordinary negligence under the provisions of OCGA § 42-8-71 (d).

Section 42-8-71 (d) of the community service act provides as follows:

No agency or community service officer shall be liable at law as a result of any of his acts performed while participating in a community service program. This limitation of liability does not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct.

Thus, subsection (d) of the statute provides immunity for ordinary negligence, but not for gross negligence, recklessness, or wilful misconduct. The subsection contains two terms elsewhere defined in the community service act: “ Agency’ means any private or public agency or organization approved by the court to participate in a community service program,” (OCGA § 42-8-70 (a) (1)), and “ ‘Community service officer’ means an individual appointed by the court to place and supervise offenders sentenced to community service. Such term may mean a paid professional or a volunteer.” OCGA § 42-8-70 (a) (3).

In construing OCGA § 42-8-71 (d), the trial court concluded that the phrase “his acts” refers to acts by a probationer and held that the effect of this section was “to grant immunity to the Agency and Community Service Officer’ in the event the negligence of a community service worker, i.e. a criminal defendant performing community service work, injures a third party.” Since the present case involved a claim that an agency employee negligently injured a probationer, the trial court concluded that OCGA § 42-8-71 (d) provided no immunity to the DHR hospital, as the approved agency.

We disagree with the trial court’s construction of OCGA § 42-8-71 (d). The first sentence of that section states that, “No agency or community service officer shall be liable at law as a result of any of his acts performed while participating in a community service program.” The personal reference to “his acts” in -the sentence may be construed as referring back to the personal acts of an “officer” — meaning either an “agency officer” or a “community service officer.” Although this construction may render the sentence grammatically correct, and makes sense for the immunity granted to a “community service officer,” an individual defined in the community service act, it makes no sense for the immunity granted to an “agency officer,” an individual mentioned nowhere in the community service act. A construction that makes sense in relation to other parts of the community service act is to construe the first sentence to mean that immunity is granted to an “agency” approved by the court under the act or to a “community service officer” appointed by the court under the act. Unlike “agency officer,” “agency” is a term defined in the community service act. Moreover, this construction is consistent with the second sentence of OCGA § 42-8-71 (d), which limits the immunity granted in the first sentence and provides that: “This limitation of liability does not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct.” Consistent with a grant of immunity in the first sentence to any “agency,” the second sentence is grammatically correct when the term “actions” is construed to refer to the impersonal actions of any “agency” as well as to the personal actions of a “community service officer.”

Since a grammatically correct construction would create immunity for an “agency officer” with no significant meaning in the context of the community service act, it is necessary to consider related parts of the act in order to ascertain the legislative intent. Collins v. C. W. Matthews Contracting Co., 213 Ga. App. 109, 111 (444 SE2d 100) (1994). Our task is not to blindly adhere to correct grammatical construction, but to construe the statute to implement the intent of the legislature. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). “Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.” Echols v. Thomas, 265 Ga. 474, 475 (458 SE2d 100) (1995). Construing the first sentence of OCGA § 42-8-71 (d) in relation to the entire community service act, it is clear that the legislature intended to give immunity to any “agency” approved by the court to participate in a community service program or to any “community service officer” appointed by the court. Accordingly, we adopt the construction which carries out the intent of the legislature in creating the community service act rather than one which gives preference to grammatical correctness.

Since the DHR hospital was an agency under the community service act, and the jury found the DHR liable on the basis of the ordinary negligence of its employees, the DHR was entitled to the immunity granted by OCGA § 42-8-71 (d), and the trial court erred by denying its motion for a directed verdict.

2. In denying the DHR’s motion for a directed verdict, the trial court also held that, even if immunity was granted to the DHR as an agency under OCGA § 42-8-71 (d), the immunity granted by this statute was superseded by the 1991 amendment to the Georgia Constitution (permitting the waiver of sovereign immunity by the enactment of a tort claims act) and the subsequent enactment of the GTCA pursuant to the amendment.

Section 42-8-71 (d) of the community service act grants limited immunity for any agency approved for participation in a community service program. The immunity was granted, not only to public agencies such as the DHR, but also to private agencies. OCGA § 42-8-70 (a) (1). By providing community service work as a condition of probation, the community service act advances a public policy of providing a constructive and economical alternative to incarceration for less serious offenders. The immunity granted by OCGA § 42-8-71 (d) was enacted by the legislature in 1984 to promote this public policy by granting limited protection from liability to encourage more public and private agencies to participate in community service programs.

In 1991, the State Constitution was amended to extend sovereign immunity “to the state and all of its departments and agencies” and to provide that the state’s sovereign immunity could be waived by an act of the General Assembly specifically waiving sovereign immunity and setting forth the extent of such waiver. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Section (a) of the 1991 amendment further provided that the General Assembly could also waive the state’s sovereign immunity by enacting a state tort claims act. Pursuant to the 1991 amendment, the General Assembly subsequently enacted the GTCA, which recognized “the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,” and granted a limited waiver of the state’s sovereign immunity. OCGA §§ 50-21-21; 50-21-23; 50-21-24.

The immunity granted under OCGA § 42-8-71 (d) in 1984 to public and private agencies approved for participation in community service programs promotes a public policy that was not superseded or repealed by implication by the 1991 constitutional amendment or by the GTCA enacted pursuant to the amendment. Gilbert v. Richardson, 264 Ga. 744, 749, n. 6 (452 SE2d 476) (1994); see Johnson v. Gwinnett County, 215 Ga. App. 79-80 (449 SE2d 856) (1994) (immunity granted by OCGA § 31-11-8 to providers of emergency medical services promotes public policy and was not waived by subsequent constitutional waiver of sovereign immunity).

3. Contrary to Mitchell’s contention, there is no basis for concluding that the DHR was not entitled to the immunity granted by OCGA § 42-8-71 (d) because of a failure to comply with other requirements of OCGA § 42-8-71 relating to application by an agency for participation in a community service program. Subsection (a) of OCGA § 42-8-71 requires that an agency application show the number of offenders who may be placed with the agency, the work to be performed, and provisions for supervising the offenders. Subsection (c) of OCGA § 42-8-71 provides that: “If an agency violates any court order or provision of this article, the offender shall be removed from the agency and the agency shall no longer be eligible to participate in the community service program.” Mitchell’s contention is that the DHR hospital forfeited its eligibility to participate in the program and its immunity under OCGA § 42-8-71 (d) because it: (1) accepted placement of more probationers in the community service program than it originally indicated it would accept on its application to the court for participation in the program (applied for four to six, and accepted nine); (2) used probationers for a different type of work than indicated in its application (grounds keeping rather than housekeeping); and (3) supervised the probationers with a person not listed on the application (grounds keeping supervisor rather than the listed housekeeping supervisor).

There has been no determination by the court that the DHR hospital violated a court order or provision of the community service act, or that it is no longer eligible to participate in the community service program. Even if a court made those determinations with respect to an approved agency, the agency would still be entitled to any immunity granted under OCGA § 42-8-71 (d) for acts that preceded the court’s determinations. Moreover, Mitchell’s complaints against the DHR hospital with respect to its application are technical at best and cannot be considered violations within the meaning of OCGA § 42-8-71 (c). All nine offenders accepted by the DHR hospital in the community service program were placed there with the approval of the court and the community service officer. There is no contention that Mitchell was doing a type of work not acceptable under the community service act or that violated the terms of the probation pursuant to which he was placed in the community service program. Furthermore, to the extent lack of proper supervision constituted ordinary or gross negligence that was the proximate cause of Mitchell’s injuries, those claims were considered by the jury.

Decided May 25, 1999

Reconsideration denied June 9, 1999 — Cert. applied for.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Kimberly L. Schwartz, Assistant Attorney General, for appellant.

Davis, Zipperman, Kirschenbaum & Lotito, E. Marcus Davis, Christopher R. Smith, for appellee.

In any event, although some of these claims were raised by Mitchell in the trial court, the trial court did not rule on them, nor did Mitchell file a cross-appeal, so they were not properly preserved for appellate review. Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 577 (442 SE2d 860) (1994).

4. We need not address the DHR’s additional enumerations of error.

Judgment reversed.

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

       The issue of whether the DHR was entitled to sovereign immunity under the GTCA is not presented in this appeal. See OCGA § 50-21-24 (2); Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 526-528 (486 SE2d 917) (1997) (physical precedent).


author: Blackburn, Presiding Judge.

text:
    A99A0573.
    CAMP et al. v. EMSA LTD. et al.
    (518 SE2d 482)
   Blackburn, Presiding Judge.

In this medical malpractice action, Thomas Camp, the surviving husband of Alice Camp, and Charles Camp, the administrator of the estate of Alice Camp (the Camps) appeal .the trial court’s denial of their motion for a directed verdict and their motion for a new trial, following a jury verdict in favor of EMSA Ltd. and Emergency Medical Service Associates (defendants). The verdict was supported by the evidence, and we affirm.

The Camps contend that the trial court erred in failing to direct a verdict for plaintiffs and in failing to grant their motion for new trial based on the verdict being strongly against the weight of the evidence. In reviewing a trial court’s denial of a motion for directed verdict, this Court must view the evidence favorably to the prevailing party and determine whether there was any evidence at trial to support the verdict. Tate v. Holloway, 231 Ga. App. 831, 832 (499 SE2d 72) (1998).

Viewed in this light, the evidence shows that 79-year-old Alice Camp was admitted to the emergency room at Doctor’s Memorial Hospital in Augusta on the evening of July 23, 1994. Camp complained of mid-sternal chest pain that radiated to her shoulders and neck, a severe headache, vomiting, diarrhea, and sweating. She advised the emergency room nurse that the symptoms began when she sneezed while working in the garden earlier that day.

Concerned that Camp might be suffering a heart attack, Dr. Ramirez, an emergency room physician, ordered various tests which ruled out this diagnosis. Dr. Ramirez also performed a neurological examination which did not reveal neck rigidity, loss of function of Camp’s extremities, or a worsening headache, symptoms which could indicate a neurological problem. Thereafter, Dr. Ramirez ordered x-rays of Camp’s sinuses and treated her for sinusitis. Camp asked to go home, and she was dismissed from the hospital. Early the next morning, Camp died from a cerebral hemorrhage.

At trial, the Camps argued that Dr. Ramirez failed to evaluate Camp for a cerebral aneurysm and that the undiagnosed aneurysm ultimately caused her death. Dr. Peter Collis, an expert witness for the Camps, opined that Dr. Ramirez breached the standard of care for emergency room physicians by failing to discover and diagnose Camp with an aneurysm. In addition, Dr. Brian Frist, who performed the autopsy on Camp, testified that, while he could not find any remnant of an aneurysm, he believed that Camp died from a ruptured cerebral aneurysm.

Expert witnesses for the defendants, however, contradicted the Camps’ witnesses. Dr. Alfred Gervin opined that Dr. Ramirez’s treatment of Camp complied with the applicable standard of care for emergency room physicians. Dr. Stephen Vogel testified that Camp’s autopsy was inconclusive as to whether she had a cerebral aneurysm, and further opined that it was likely that she did not. Likewise, Dr. Wayne Beveridge was of the opinion that Ms. Camp did not die from an aneurysm.

Thus, while the Camps offered expert testimony that the treatment did not comply with the applicable standard of care, the defendants offered expert testimony which showed that the treatment did comply. “It is for the jury to determine whether the facts upon which the expert bases his opinion do exist and, if so, whether the expert’s opinion that those facts constituted medical malpractice should be accepted.” (Punctuation omitted.) Kapsch v. Stowers, 209 Ga. App. 767, 769 (1) (434 SE2d 539) (1993). Here, the evidence at trial was in conflict as to whether Camp had an aneurysm and whether Dr. Ramirez’s treatment complied with the applicable standard of care. The jury returned a verdict for the defendants, answering only the first question on the verdict form: “On the Claims of [the Camps against the defendants] do you find: (1) The medical care rendered by defendants’ employee (Dr. Ramirez) failed to meet the appropriate standard of care? NO.”

Decided May 26, 1999

Reconsideration denied June 9, 1999 — Cert. applied for.

Chad A. McGowan, for appellants.

Fulcher, Hagler, Reed, Hanks & Harper, David H. Hanks, for appellees.

It is the function of the jury to resolve conflict in testimony; this Court will not substitute its judgment for that of the jury and will neither weigh evidence nor determine witness credibility. Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997).

(Citations and punctuation omitted.) Harris v. Leader, 231 Ga. App. 709, 713 (2) (499 SE2d 374) (1998). As to the Camps’ complaint that the verdict for the defendant was against the weight of the evidence, “ ‘[only] the trial court is vested with the authority to grant a new trial on a matter relating to the weight of the evidence.’ ” College Park Cabs v. Justus, 227 Ga. App. 66, 70 (5) (488 SE2d 88) (1997). Although there was conflicting evidence, there was evidence to support the verdict, and the trial court did not err in denying the Camps’ motion for a directed verdict or the motion for new trial based on the verdict being strongly against the weight of the evidence.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge. Smith, Judge,

text:
    A99A0842, A99A0843.
    HARRISON v. THE STATE (two cases).
    (518 SE2d 755)
   Eldridge, Judge.

On October 2, 1998, defendant Kimberly Harrison and her husband, defendant Jerry Lee Harrison, were tried and convicted of simple battery in a joint, non-jury trial. They both challenge their convictions, raising identical enumerations of error. We reverse both convictions.

The facts, viewed in a light most favorable to the verdict, are as follows: Bainbridge City Police Officer Patrick Henry Thomas testified that he was called to the defendants’ home on July 18, 1998. Ms. Harrison and her father, as well as Mr. Harrison and his mother, were present; the defendants’ children also were present. The officer testified that both defendants had been drinking alcohol. According to the officer, Mr. Harrison had a cut and some abrasions on his face; Ms. Harrison had a “busted” lip. Both defendants, in each other’s presence, told the officer that they had been involved in a domestic dispute which had escalated into a situation where each individual struck the other at least one time. However, both defendants told the officer that the other spouse had started the fight by striking the first blow. The officer arrested both defendants and charged them with simple battery.

The trial court decided to try both of the defendants at the same time, since the charges arose from the same conduct; neither party objected to the joint trial. However, both defendants invoked their marital privilege to avoid testifying against the other. See OCGA § 24-9-23 (a).

After hearing the officer’s testimony, the trial court found both defendants guilty of simple battery. Both defendants appeal and raise four identical enumerations of error. Held:

Case No. A99A0842

1. In her first enumeration, Ms. Harrison contends that the trial court erred in admitting, over objection, hearsay testimony of Officer Patrick Thomas, i.e., Mr. Harrison’s statements that Ms. Harrison was the initial aggressor. We agree and reverse her conviction.

(a) Under OCGA § 24-3-1 (b), testimony which otherwise is inadmissible hearsay may be admitted out of necessity. “To qualify as an exception to the hearsay rule, there must be a necessity for the exception and a guaranty of the testimony’s trustworthiness.” (Footnotes omitted.) Drane v. State, 265 Ga. 663, 664 (1) (461 SE2d 224) (1995). “One way to satisfy the first prong is by showing that the declarant is [unavailable], and there is no [other] live witness at all[.] [Cits.]” Lane v. Tift County Hosp. Auth., 228 Ga. App. 554, 561 (492 SE2d 317) (1997). See also Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987) (declarant was the only eyewitness to the homicide); Chrysler Motors Corp. v. Davis, 226 Ga. 221, 225 (173 SE2d 691) (1970); Sorrows v. State, 234 Ga. App. 357, 358 (505 SE2d 842) (1998); C & S Bank of Albany v. Swain, 185 Ga. App. 881, 884 (366 SE2d 191) (Beasley, J., dissenting) (dead declarant was the only witness), reversed on other grounds, Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (372 SE2d 423) (1988). Generally, a spouse who refuses to testify against a defendant by invoking the marital privilege is “unavailable” for the purpose of finding necessity under OCGA § 24-3-1 (b). Drane v. State, supra at 664 (1); Higgs v. State, supra at 608 (4); Lane v. Tift County Hosp. Auth., supra at 561; Patterson v. State, 202 Ga. App. 440, 443 (4) (414 SE2d 895) (1992); Glisson v. State, 188 Ga. App. 152, 154 (2) (372 SE2d 462) (1988).

However, in this case, two additional adult eyewitnesses were present at the defendants’ home on the night of the incident. Although a trial court may still admit hearsay testimony under the necessity exception when additional eyewitnesses are available to testify, Lane v. Tift County Hosp. Auth., supra at 561, we find that the State has failed to demonstrate the need for the challenged testimony. The investigating officer apparently did not interview these two additional witnesses. The State has offered no explanation as to why they were not interviewed or called as witnesses in this trial to testify as to their observations regarding this incident. Accordingly, we find that the State has failed to demonstrate the requisite necessity to justify admission of the hearsay testimony.

(b) Further, even if the State had been able to demonstrate a need for the testimony, the State also had the burden of showing that the hearsay testimony has “a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” (Citations, punctuation, and emphasis omitted.) Higgs v. State, supra at 607-608 (3), citing Chrysler Motors Corp. v. Davis, supra at 224 (1). See also Drane v. State, supra at 664 (1); Patterson v. State, supra at 443 (4); C & S Bank of Albany v. Swain, supra at 882. In evaluating the reliability of hearsay statements, the trial court should look at the totality of the circumstances surrounding the statements, including whether the statement was “made in circumstances in which it is unlikely to have been untrue [.]” C & S Bank of Albany v. Swain, supra at 884 (Beasley, J., dissenting). See also Roper v. State, 263 Ga. 201 (429 SE2d 668) (1993); Swain v. C & S Bank of Albany, supra at 550. The court also may consider whether the declarant subsequently confirmed or repeated the statements to others; whether any evidence was presented to corroborate the statements; and whether the statement was made as part of the res gestae of the incident or occurred at a separate time and place. See Drane v. State, supra at 664 (1); Mallory v. State, 261 Ga. 625, 627-628 (2) (409 SE2d 839) (1991); Nunnery v. State, 234 Ga. App. 371, 372 (1) (506 SE2d 888) (1998); Sorrows v. State, supra at 358.

In this case, the police officer testified that, upon his arrival at the defendants’ home, both defendants were intoxicated and angry. When questioned by police, each defendant charged the other with initiating a fight, thereby asserting self-defense to justify their subsequent participation in the fight. Because both defendants faced criminal charges, both defendants had the incentive to construct a statement that established a defense for their own actions while further hurting their spouse, i.e., exposing them to arrest and prosecution for battery. As such, these statements were inherently unreliable. Therefore, under the circumstances in this case, the hearsay testimony did not have sufficient indicia of reliability to support its admission under the necessity exception.

Further, the State has failed to demonstrate that the statements were admissible as part of the res gestae. See OCGA § 24-3-3; see also Wilbourne v. State, 214 Ga. App. 371 (448 SE2d 37) (1994).

(c) Finally, the State claims on appeal that the statements should be admitted based upon the long-standing rule in Georgia law, i.e., that “anything seen or heard by a witness in the presence of a defendant is admissible and does not constitute inadmissible hearsay in this state [,]” even if the declarant is unavailable for cross-examination. (Citation omitted.) Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). See also Moore v. State, 207 Ga. App. 673 (428 SE2d 678) (1993); Broome v. State, 141 Ga. App. 538 (2) (233 SE2d 883) (1977). “When the defendant does not testify, such evidence is obviously admissible if it is an admission or confession, it is certainly admissible when the defendant testifies and is subject to cross-examination!,] or when it is in the nature of res gestae.” (Citations omitted.) Hartley v. State, 207 Ga. App. 683, 684 (428 SE2d 683) (1993). However, after recognizing the substantial potential for constitutional violations created by this rule in criminal trials, the Supreme Court of Georgia has severely limited its application. See Jarrett v. State, 265 Ga. 28, 29 (453 SE2d 461) (1995) (holding that a witness in a criminal trial “may not testify as to a declarant’s statements [under the admission against interest exception to the hearsay statute] based on the acquiescence or silence of the accused”); Faircloth v. State, 253 Ga. 67, 69 (3) (316 SE2d 457) (1984) (indicating that, because the reliability of a hearsay statement depends on the veracity of the declarant, the inability to cross-examine an unavailable declarant at trial renders the statement inadmissible); see also Luallen v. State, 266 Ga. 174 (465 SE2d 672) (1996); Mallory v. State, supra at 630. Although the State failed to assert this “presence of the defendant” rule as a basis for admission of the hearsay at trial, this Court still could find that the challenged testimony was admissible under this rule. Stovall v. State, 216 Ga. App. 138 (453 SE2d 110) (1995) (“A trial court’s ruling will be affirmed if it is right for any reason. [Cit.]”).

However, none of the cases cited by the State in support of this proposition involved a situation comparable to the one before this Court. This case involves the joint trial of two defendants who also were victims. Each defendant objected to the introduction of their spouse’s hearsay statement to police. Each defendant (1) had a defense that directly conflicted with and, in fact, was antagonistic to the other; (2) possessed the constitutional right to avoid self-incrimination and could not be compelled to give testimony; and (3) had the statutory right to invoke the marital privilege to avoid testifying against their spouse.

Therefore, in this case, if the hearsay statements of their spouse are introduced against each of the defendants in the absence of the spouse/declarant, and the defendants are forced to testify in order to dispute the hearsay statements, the defendants are faced with a difficult — and inherently unfair — choice: (1) invoke their constitutional rights and statutory privilege and waive the opportunity to dispute the hearsay, (2) waive their rights and privilege and confirm their statements to police, but risk self-incrimination on cross-examination, or (3) testify that their spouse did not batter them and automatically incriminate themselves as the original aggressors.

Accordingly, because this complex situation raises very serious constitutional questions that have not been resolved elsewhere, and because the State has failed to demonstrate how admission of this evidence could survive such constitutional challenges, we decline to find these statements admissible on the sole basis that the defendants were present when they were made to the investigating officer.

(d) Accordingly, the trial court erred in admitting the hearsay evidence over the defendants’ objections. Since the remaining evidence was insufficient to support Ms. Harrison’s conviction, it is reversed. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Ms. Harrison’s remaining enumerations are rendered moot by our decision in Division 1, supra.

Case No. A99A0843

Mr. Harrison raised the same issues on appeal as those asserted by his spouse. For the same reasons, his conviction for simple battery must be reversed.

Judgments reversed.

Pope, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I agree that the judgments must be reversed in these appeals. I do not, however, believe that we need to decide whether Officer Thomas’s testimony was inadmissible hearsay, because even were it admissible it would be insufficient to support the conviction of either defendant under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thomas’s testimony simply presents completely contradictory statements as to who was the aggressor. It affords no basis for either choosing between the two versions or for forming an independent opinion, which is what the trial court apparently did. Since the general grounds are enumerated as error by both defendants and no evidence was presented that would authorize the fact finder to convict either defendant, I would reverse on that basis.

Decided May 28, 1999

Reconsideration denied June 9, 1999 — Cert. applied for.

Ronnie J. Lane, for appellant (case no. A99A0842).

Gilbert J. Murrah, for appellant (case no. A99A0843).

Ben Kirbo, Solicitor, for appellee.

       Under OCGA § 16-5-23 (a), “[a] person commits the offense of simple battery when he either (1) [intentionally makes physical contact of an insulting or provoking nature with the person of another or (2) [intentionally causes physical harm to another.” (Punctuation omitted.)

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Such situation differs from the more common domestic violence scenario involving one active aggressor and one passive victim.

       See Moore v. State, 240 Ga. 210 (240 SE2d 68) (1977); Hurston v. State, supra; see also Franklin v. State, 208 Ga. App. 740, 741 (431 SE2d 733) (1993); Hartley v. State, supra; but cf. Reeves v. State, 194 Ga. App. 539, 540 (391 SE2d 35) (1990) (in which defendant’s failure to object waived several bases for excluding the hearsay testimony).

       As such, this case is distinguishable from one in which a victim who is not charged with a crime may decide to avoid testifying against his or her spouse by invoking the marital privilege. Sound public policy supports the statutory provision which precludes the State from forcing a person to provide testimony which incriminates their spouse.

       Ms. Harrison also asserted that the testimony was inadmissible under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) (“Bruton”). Bruton precluded the use, during a joint trial, of a co-conspirator’s extrajudicial confession which also incriminated his co-defendant, finding that it violated the non-confessing co-defendant’s Sixth Amendment right of confrontation. See also OCGA § 24-3-52; Livingston v. State, 268 Ga. 205 (486 SE2d 845) (1997). In contrast, this case involves two defendants who were acting independently against each other and, therefore, were not co-conspirators or even co-defendants in the traditional sense, because they were not involved in a conspiracy or any joint activity. However, because this Court has already established that this testimony was inadmissible hearsay, we will not address whether the evidence was also inadmissible as a Bruton violation.


author: Judge Harold R. Banke.

text:
    A99A0013.
    BRADLEY v. THE STATE.
    (519 SE2d 261)
   Judge Harold R. Banke.

In a bench trial, James Russell Bradley was convicted of driving under the influence of alcohol and failure to maintain lane. In his sole enumeration of error, Bradley contests the sufficiency of the evidence. Among other claims, Bradley contends that the State failed to prove venue. Held:

Criminal actions must generally be tried in the county where the crime occurred. OCGA § 17-2-2 (a). When the evidence of venue does not conflict and no challenge to venue is made at trial, slight evidence suffices to prove venue. Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988).

The State’s case against Bradley consisted solely of the testimony of a state patrol officer and a videotape. But neither the officer nor the videotape mention any particular county. Although Bradley did not challenge venue at trial, we have not found nor has the State directed our attention to any evidence in the record showing that these offenses occurred in Spalding County. Compare Barker v. State, 211 Ga. App. 279 (2) (438 SE2d 649) (1993). Since the arresting officer was a state trooper and not a county law enforcement officer, no inference could be made that he was acting within the territorial jurisdiction of a particular county. Compare Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998); Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525) (1989). Nor did the state trooper’s testimony that he observed Bradley’s vehicle weaving while northbound on Georgia Highway 3 and again after Bradley turned onto Baptist Camp Road, prove venue since the trooper did not specify the county. Calloway v. State, 227 Ga. App. 775, 776-777 (2) (490 SE2d 521) (1997) (mere street address insufficient to establish venue), overruled on other grounds, Joiner, supra.

In an attempt to save its case, the State asserts that the trial judge had familiarity with the area of the traffic stop and the roads involved. The State claims that the judge would have known that Baptist Camp Road and Manley Road are located only in Spalding County, Georgia. But judicial notice of such purported geographical facts was not noted by the court on the record and the parties were not afforded an opportunity to be heard on that issue. See Graves v. State, 269 Ga. 772, 776 (4) (a) (504 SE2d 679) (1998) (new rule on judicial notice to apply prospectively only). Nor are we, as a reviewing court, free to resort to judicial notice to legitimize a judgment. See id. at 773 (1) (when sufficient evidence of venue is lacking, the verdict cannot stand). Therefore, we reverse.

Decided June 9, 1999.

Virgil L. Brown & Associates, Larkin M. Lee, Bentley C. Adams III, for appellant.

Newton & Howell, Griffin E. Howell III, for appellee.

Judgment reversed.

Blackburn, P. J, and Barnes, J., concur.


author: Barnes, Judge.

text:
    A99A0617.
    In the Interest of D. L. T. et al., children.
    (519 SE2d 257)
   Barnes, Judge.

Claiming insufficient evidence, Donald Tucker appeals the termination of his parental rights to his three minor children, D. L. T, C. D. T, and T. D. T. Because the trial court was authorized to find that there was clear and convincing evidence in favor of termination, we affirm.

The record shows that when Tucker’s parental rights were terminated by the Walton County Juvenile Court on July 14, 1998, D. L. T. was eight years old, C. D. T. was seven years old, and T. D. T. was five years old. The children’s mother, Margaret Diane Tucker, surrendered her rights to the children on March 16,1998, four months earlier.

Walton County’s Department of Family & Children Services (“DFACS”) was not the first to intervene and monitor the care the Tuckers provided to their children. The record shows that Clayton County’s DFACS became involved in 1990 until the parents moved to Rockdale County in 1995. At that time, Rockdale County’s DFACS took over until the parents moved to Walton County in 1996.

In July 1990, Clayton County received two reports that the oldest child, who was one year old, was not receiving proper care. Specifically, the trailer in which the family lived was filthy, the child did not appear to be receiving proper food because he was “frail and skinny,” and he was left unsupervised. Clayton County investigated and determined there was “not sufficient credible evidence to prove or disprove” the allegations.

In August 1991, Clayton County received another report that the home was nasty with trash everywhere, the oldest child never bathed, and a cast on his foot was filthy. Clayton County investigated again, making announced and unannounced visits. The home was found to be cluttered and the caseworker made house-cleaning recommendations. The case was closed after improvements were made.

In January 1993, Clayton County received a report that the three children were wearing only underwear and diapers in the middle of winter, trash and dirty clothes were throughout the home, and the parents were not keeping the youngest child, a three-month-old infant, on an apnea monitor. These allegations were confirmed by a caseworker. During unannounced visits, the caseworker discovered the oldest child, who was over three, wearing a soiled diaper which “was very heavy from the material that was in it” and nothing else. The middle child, who was almost two, was also wearing only a soiled diaper and the caseworker saw him pick up a dirty bottle from the floor and drink spoiled milk. This child communicated with grunting noises and did not speak. Both of these children had matted hair and their feet, face, and hands were black from dirt. The two-month-old infant was sitting in a swing with a towel under her chin to prop up a bottle. The sleeper worn by the infant was dirty and foul-smelling. She was not connected to an apnea monitor as directed by her physician. Mr. and Mrs. Tucker were both at home during one visit and neither one noticed when the bottle fell out of the infant’s mouth onto the floor.

The caseworker described the home as unsafe and unsanitary. Dirty clothes and rotten food were strewn throughout the house and there were a lot of “active” roaches and gnats in the home. An outdoor trash can was inside the home and a lot of bugs were crawling out of it into the home. Dirty dishes and diapers were lying on the kitchen floor and it was difficult to navigate.

After the allegations of neglect were confirmed, DFACS assigned two family service workers to the family to work with them on their parenting and hygiene skills. Both parents attended parenting classes. When the situation appeared to stabilize, a caseworker visited only once every two weeks.

In September 1993, a Clayton County police officer responded to a “911 hang-up call” at the Tuckers’ residence. When he arrived, he saw an open sliding door in the back of the home and could hear children crying inside. When no one responded to his repeated announcements, he went inside to check on the children. After entering the home, he found a three-year-old, two-year-old, and nine-month-old who were not attended by an adult. The home was in disarray with rotting food on the counter tops and floor of the kitchen. Matches and knives were also lying on the kitchen floor. Fecal matter was on the couch in the living room. The children were caked with dirt, had a foul smell, and their training pants and diapers were filthy.

The officer arrested both of the Tuckers for cruelty to children and took the children into protective custody. When he arrested Mr. Tucker, Mr. Tucker did not offer any explanation for the condition of the children or appear surprised by it.

After taking custody of the children, Clayton County’s DFACS prepared a reunification plan which involved progressing from supervised visits to unsupervised visits to overnight visits. Mr. and Mrs. Tucker also attended additional parenting classes.

During one overnight visit in April 1994, two caseworkers made an unannounced visit at 3:00 p.m., six hours after the children had been picked up by Mr. and Mrs. Tucker. When the caseworkers knocked on the door, no one answered. When they saw movement in a window, they discovered the children were locked in a room together. For approximately 30 to 35 minutes, they talked to the children through the window and tried to help them get out of the room. During this time period, the oldest child chased the middle child around the room while biting and scratching him. When the caseworkers were unable to free the children, they called their supervisor who notified the police. When the police entered the home after repeatedly announcing their presence, they discovered that the children were locked in a bedroom. Approximately five or six minutes after the police entered the home, Mr. and Mrs. Tucker exited their bedroom, explaining that they had been taking a nap.

After this incident, the Tuckers were once again limited to supervised visits. After the Tuckers progressed again to unsupervised visits and made improvements, the department placed the children back into the home full-time, with the department retaining legal custody. When the Tuckers moved to Rockdale County in February 1995, the judge returned legal custody to the Tuckers and Clayton County DPACS transferred the Tuckers’ file to its counterpart in Rockdale County.

Before Clayton County’s file was copied and transferred, Rockdale County received an independent report in November 1995 that the children were unsupervised. They initiated an investigation and documented concerns with supervision of the children, the hygiene of the children, and housekeeping in the home. During this time, Mrs. Tucker and the children were involved in an automobile accident. Approximately one week after the middle child was released from the hospital, another referral came in about a cigarette bum on his face. This child frequently missed his rehabilitation appointments following his release from the hospital, and the department took steps to make sure he received his medical care. During the time this department intervened, it continued to receive reports of inadequate supervision and housekeeping standards. When conditions improved in September 1996, the department closed its case.

In February 1997, Rockdale County reopened the case because it received reports that the children were running around unsupervised, there was no food in the home, and the children were not placed in child safety seats or seat belts when riding in an automobile. The department also received reports that Mrs. Tucker was a prostitute, that Mr. Tucker was aware of it, and that this activity took place in the presence of the children. The caseworker testified there was very little food in the home on the first visit after these reports and that she initially thought the home had a dirt floor because there was so much dirt on top of a dirt-colored carpet. The Tuckers moved to Walton County in April 1997, before Rockdale County could complete its investigation and confirm all of the allegations against the Tuckers.

In May 1997, Evelyn Bates, a caseworker employed by the Walton County DFACS, responded to a report that the children were always hungry and had very poor hygiene. Bates interviewed the two older children at their school in the morning and then went to the family home around lunchtime. Bates testified that the trailer was very dirty with clothes strewn from one end of the trailer to the other. There was so little food in the kitchen that Bates told Mrs. Tucker that she would return with food later that afternoon.

When Bates returned around 4:00 p.m., no one answered the door so she asked the eight-year-old boy, who was playing outside, if his mother was at home. He told her that his mother was in her bedroom having sex with a customer. He also told her that his father knew about his mother’s customers. When he went inside and told his mother that DFACS was there, his mother came out in a pair of shorts that were buttoned, but not zipped. When she claimed that nothing was wrong and that a friend was visiting, Bates left and called the police from a nearby store.

When the police officer arrived, the two oldest children confirmed to him that their mother had sex with customers. The middle child, who was seven, added that “his daddy sometimes got his mama customers” and that when a customer did not have money “daddy would hit them with a baseball bat.” In a later conversation with the police officer, the two older children explained that their mother would get naked with customers on her bed and the youngest child, a four-year-old girl, would sometimes stay in the bedroom while this occurred. When confronted about this activity by the police officers, Mrs. Tucker admitted that she had been practicing prostitution since she moved to Walton County. She was then arrested and the children were placed in foster homes.

When the children were taken into custody, they were very hungry and filthy from accumulated dirt. All of them had lice and nits. The five-year-old had a tick in her ear and the seven-year-old had three wads of paper stuck in his ear which were rotting. None of them knew how to clean themselves after a bowel movement or how to bathe.

Bates testified that after the children were taken into custody, Mr. Tucker denied that the children had been without food, that their clothes were not clean, and that they had not been bathing. He also denied knowing that his wife was prostituting herself. Sergeant Mike McHugh testified that after he arrested Mrs. Tucker for prostitution in May 1997, she told him her husband did know about it and he did not mind.

Elin Reynolds, a foster care case manager with the Walton County DFACS, testified that Mr. Tucker told her on June 10, 1997 that both he and the children knew his wife was prostituting and there was nothing he could do about it. He also told her his wife had probably slept with five hundred men in the previous two months and “that ninety out of a hundred didn’t pay her and the remaining would give her ten to twenty dollars.” He further admitted that he would fight with his wife in front of the children about not getting enough money out of her sleeping with other men.

During other conversations with Reynolds, Mr. Tucker denied all responsibility for the condition of the home and the children dating back to 1993 when they were first taken into protective custody. He consistently claimed it was his wife’s responsibility to take care of the children because he worked all day.

Reynolds also testified that the children were out of control during her supervised visits with Mr. Tucker from June 1997 through August 1997. During the majority of these visits, he sat and read a book while the children ran around the visitation room. The children were so loud that people in adjoining offices were unable to talk on the telephone.

Another Walton County DFACS employee, Renee Harrison, testified that she became responsible for the Tucker case in September 1997 and continued as the caseworker until the July 1998 termination hearing. She supervised the Tuckers’ visits with the children, during which the children were frequently out of control, requiring her to intervene several times during the visit to calm them down. Examples of their behavior including throwing objects at the walls, banging on the walls, screaming, standing on tables, and running in and out of the visitation room.

Dr. William Buchanan, a clinical psychologist, interviewed the children, administered a variety of tests, and prepared a psychological assessment in May 1998. Dr. Buchanan testified that he diagnosed all three children as neglected and that the oldest boy’s diagnosis also included physical abuse by his father. This child told Dr. Buchanan that his father had thrown him up against a wall and also knocked his teeth out on a separate occasion. All three children had issues with food and were fearful that they would not receive enough to eat. One of them told Dr. Buchanan that the parents would eat in front of the children and not give them anything to eat.

Mr. Tucker testified that he divorced his wife in March 1998, four months before the July 1998 hearing to determine if his parental rights should be terminated. He stated that he had not had any contact with his ex-wife since the summons in his divorce action was served on her. He also testified that he attended parenting classes and obtained a certificate after completing the course in June 1998. He further testified he was currently on lesson five of a seven-lesson home study course on nutrition. He admitted that he had made mistakes in the past and asked the trial judge for “one more chance to show that I can take care of these children.”

A trial court is authorized to terminate a parent’s rights with respect to a child if there is clear and convincing evidence that the child is deprived due to the parent’s misconduct, that the deprivation is likely to continue, and that the continued deprivation is likely to harm the child. OCGA § 15-11-81 (a), (b) (4) (A). The appropriate standard of review of the trial court’s ruling is whether, viewing the evidence in a light most favorable to the appellee, a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. See Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982); In the Interest of Y. P., 188 Ga. App. 554, 555 (373 SE2d 657) (1988).

In this appeal, Tucker’s sole enumeration of error is that there was a lack of clear and convincing evidence that the children’s deprivation was likely to continue or was not likely to be remedied. OCGA § 15-11-81 (b) (4) (A) (iii). The facts recited above, established at the termination hearing by clear and convincing evidence, show the deprivation of Tucker’s three children was likely to continue, and would not be remedied if they remained with their father. A court can consider the past conduct of a parent when determining whether conditions of deprivation are likely to continue. In the Interest of K. W., 233 Ga. App. 140, 143 (2) (503 SE2d 394) (1998). “The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987).

In this case, the fact that Mr. Tucker is now divorced from his wife and has attended yet another round of parenting and nutrition classes does not overcome the clear and convincing evidence that deprivation of the children is likely to continue. Mr. Tucker attended several parenting classes in the past and the conditions in the home did not permanently improve. Mr. Tucker cannot place all of the blame for the past deprivation of his children on his ex-wife simply because he worked during the day and relied on her to care for the children. Both parents are responsible for the care and well-being of their children and if one of them fails in this duty, it is the obligation of the other to carry the load. Mr. Tucker received numerous chances to show he could properly care for his children and failed to do so. As a result, the trial court did not err in terminating Tucker’s rights under OCGA § 15-11-80 (b) (4).

Decided June 9, 1999.

David J. Farnham, for appellant.

Thurbert E. Baker., Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, John R. Laseter, for appellee.

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0269, A99A0270.
    OWENS v. McGEE & OXFORD; and vice versa.
    (518 SE2d 699)
   Blackburn, Presiding Judge.

In Case No. A99A0269, Pamela Owens appeals the jury’s award against her in the underlying action to collect past due fees brought by her former attorneys, McGee & Oxford. In Case No. A99A0270, McGee & Oxford cross-appeal, contending that the trial court erred in failing to grant their motion for summary judgment and motion for directed verdict. For the reasons set forth below, we affirm the jury’s verdict.

Case No. A99A0269

1. In her initial enumeration of error, Owens contends that the trial court failed to grant her motion for directed verdict which was based on numerous grounds.

The standard of review of a trial court’s denial of a motion for a directed verdict is the “any evidence” standard, and the evidence is construed most favorably toward the party opposing the motion. Accordingly, this standard of review requires [Owens] to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.

(Citation and punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 854 (501 SE2d 30) (1998).

So viewing the evidence, Owens retained McGee & Oxford to represent her in her divorce action. After some services had already been performed, Owens signed a letter agreement in which she agreed to pay McGee & Oxford for costs and expenses, as well as an hourly rate for the time expended on her behalf by McGee & Oxford attorneys and paralegals. The agreement provided that it became effective upon McGee & Oxford’s receipt of the countersigned copy and payment of the remainder of the retainer fee. It also acknowledged previous payment of $2,800 of the agreed upon $6,000 retainer fee. The agreement further provided that McGee & Oxford’s duties ended “upon the entry of a final judgment” and that “services for any appeal or proceeding to enforce any judgment will require a separate agreement between us for such services.” During its representation of her, McGee & Oxford provided Owens with monthly statements. Owens refused to pay the amounts outstanding on these bills. Thereafter, McGee & Oxford brought the underlying action to recover $46,946.03 in attorney fees plus interest owed by Owens.

(a) Owens argues that because McGee & Oxford withdrew their representation prior to obtaining a final judgment, they cannot recover under the contract. The question that must be resolved is whether the subject agreement is an entire contract or a severable one. See OCGA § 13-1-8 (a).

The issue of the severability of a contract is determined by the intention of the parties, as evidenced by the terms of the contract. If it appears that the contract was to take the whole or none, then the contract would be entire. Whenever there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire, and is not apportionable either at law or in equity.

(Citations and punctuation omitted.) Medical Doctor Assoc. v. Lab-Quip Co., 201 Ga. App. 880, 881 (412 SE2d 625) (1991).

In the present case, the contract provided that McGee & Oxford would represent Owens at an hourly rate. The language in the contract which provides that the law firm’s duties would “end upon the entry of a final judgment,” merely indicates that the law firm has no contractual duty to represent the client in future actions to enforce any judgment or to handle any appeal in the case, absent their agreement to do so. It did not require a final judgment in the case in exchange for a specific amount of compensation. Under these circumstances the contract must be considered severable, and a final judgment is not a condition precedent to the entitlement to fees.

(b) McGee & Oxford withdrew its original damage claims based on quantum meruit and submitted its case to the jury solely on its contract claims. It is therefore unnecessary to address Owens’ contentions as to such quantum meruit claims.

(c) Owens asserts that no claim for interest was properly shown. She argues that interest is not recoverable because she never received a demand for the exact amount sought in the complaint. Pursuant to OCGA § 7-4-16,

[t]he owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid.

Additionally, “[ujnless otherwise provided in writing signed by the obligor, a commercial account becomes due and payable upon the date a statement of the account is rendered to the obligor.” OCGA § 7-4-16. A commercial account is defined, in pertinent part, as “an obligation for the payment of money arising out of a transaction to sell or furnish . . . goods or services.” OCGA § 7-4-16.

The contract signed by Owens provided that any statement which remained unpaid after forty-five days would bear interest of one-and-one-half percent per month. Additionally, Owens received a demand for the amount owed as of the date of the demand. She was billed in February 1993 for the $54,196.03 then owed. After that time, her former husband paid $7,250 on the account. “A debt is liquidated when it is certain how much is due and when it is due.” (Punctuation and emphasis omitted.) Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988).

Based on the foregoing, a claim for prejudgment interest was properly made in the trial court.

(d) Owens asserts that the trial court erred in denying her motion for directed verdict on attorney fees contending that McGee & Oxford did not present proper evidence of same.

Initially, Owens argues that McGee & Oxford were not entitled to seek attorney fees under OCGA § 13-6-11.

OCGA § 13-6-11 allows attorney fees where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . . As to whether the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense, mere refusal to pay a disputed claim, without suit is not sufficient to award attorney fees. The key to the test is whether there is a bona fide controversy. Where none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to unnecessary trouble and expense. However, recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy.

(Punctuation omitted.) Wheat Enterprises v. Redi-Floors, supra at 856-857.

In the present case, the jury was authorized to find that Owens failed to demonstrate that a bona fide controversy existed regarding her obligation to pay for the legal services rendered by plaintiff on her behalf. Therefore, the issue of attorney fees was properly presented to the jury.

Owens also asserts that McGee & Oxford failed to make a proper evidentiary showing regarding the reasonableness of the amount of attorney fees requested. However, as Owens failed to raise this issue in the trial court, it has been waived and may not be considered on appeal. See Leader Nat. Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 116 (375 SE2d 231) (1988) (“A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal”). (Punctuation omitted.)

(e) Owens contends that McGee & Oxford breached its fiduciary duty to her and, therefore, it is prevented from any recovery in contract. Owens asserts that McGee & Oxford’s bill for $.25 per photocopy was unreasonable and that by this charge McGee & Oxford breached its fiduciary duty to her. Owens’ expert testified that charging $.25 per photocopy is “probably unreasonable.” However, Joseph McGee testified that his bills were reasonable. This conflict in the evidence creates a jury issue and, therefore, the trial court did not err in denying Owens’ motion for directed verdict on this ground. As the jury found for plaintiff, we do not further address the effect of unreasonable copy costs on the right of an attorney to compensation.

Owens further argues that McGee & Oxford’s withdrawal from the case was a breach of its fiduciary duty. However, Joseph McGee testified to the work he completed in order to preserve any issues for a new trial or appeal in Owens’ underlying case. He further testified that such work was performed after discussing it with Owens. Under these circumstances, the jury was authorized to find that McGee & Oxford did not breach its fiduciary duty. This enumeration is without merit.

2. By several enumerations of error, Owens contends that the trial court erred in failing to give certain charges to the jury regarding the proper measure of damages under quantum meruit.

A requested charge should be given only where it embraces a correct and complete principle of law which has not been included in the general instructions given and where the request is pertinent and adjusted to the facts of the case. Neither should a jury charge be given which is inapplicable to the facts.

(Citation and punctuation omitted.) Hayden v. Sigari, 220 Ga. App. 6, 10 (5) (467 SE2d 590) (1996).

As previously stated, McGee & Oxford withdrew any claim for quantum meruit and submitted their claims to the jury on written and oral contract. Therefore, any charges based upon quantum meruit were not adjusted to the evidence and were properly disregarded by the trial court.

3. Owens contends that the trial court erred by failing to instruct the jury as follows: “I charge you that when a party to a contract has been injured he is bound to lessen the damages sustained by him as far as is practicable by use of ordinary care and diligence.” Owens argues that this charge is applicable because McGee & Oxford did not file suit for almost two-and-one-half years. Owens’ position is without merit. McGee & Oxford was within its rights to seek payment or compromise from Owens prior to filing suit. Because the requested charge was not a complete statement of the law, adjusted to the pleadings, law, and evidence, omission of it did not constitute reversible error. Hayden, supra.

4. In her final enumeration of error, Owens contends that the trial court erred when it charged the jury:

Now, ladies and gentlemen of the jury, I charge you that if you find that the Plaintiff has performed all of its obligations under the contract in this case, you must find the Defendant liable for all damages to Plaintiff as a result of the Defendant’s breach of its obligation to pay Plaintiff under the contract.

Owens argues that by this charge, the court essentially directed a verdict in favor of McGee & Oxford. Owens’ argument is without merit as the charge clearly states that the jury must first determine that she breached the agreement and that she is responsible for those damages flowing from the breach. The trial court did not commit reversible error in giving this charge.

Decided May 26, 1999

Reconsideration denied June 10, 1999 — Cert. applied for.

Glenville Haldi, for appellant.

Steven Montalto, for appellee.

Case No. A99A0270

5. In its first enumeration of error contained in its cross-appeal, McGee & Oxford contend that the trial court erred in denying its motion for summary judgment. This enumeration of error is moot. “Denial of a motion for summary judgment is rendered moot by the court’s entry of judgment on the verdict. Thus, an appellate court will not review the denial of a motion for summary judgment following a trial on the merits.” (Citations and punctuation omitted.) Fowler v. Smith, 230 Ga. App. 817, 819 (1) (a) (498 SE2d 130) (1998).

6. In its second enumeration of error, McGee & Oxford contend that the trial court erred in denying its motion for directed verdict. Inasmuch as the jury returned a verdict in favor of plaintiff, any error in failing to direct a verdict is rendered moot. In any event, however,

[i]n determining whether the trial court erred by denying the motion for directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict.

(Punctuation omitted.) Pope v. Professional Funding Corp., 221 Ga. App. 552, 553 (1) (472 SE2d 116) (1996). See also Wheat Enterprises v. Redi-Floors, supra.

Because McGee & Oxford’s claims were based on an oral and written contract, the jury would have been authorized to believe Owens’ testimony that the firm agreed to continue working for her for compensation that would be determined later. This conflict in the evidence required that the case be submitted to the jury. Therefore, the trial court did not err in denying McGee & Oxford’s motion for directed verdict.

Judgments affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       The invoice also included a notation that $84.98 remained in the trust account.