author: Pope, Presiding Judge. Eldridge, Judge, Andrews, Chief Judge,

text:
    A98A0765.
    HARRIS v. MURRAY.
    (504 SE2d 736)
   Pope, Presiding Judge.

Laura S. Harris brought a medical malpractice action against Samuel D. Murray, Jr., M.D., and filed with her complaint an expert affidavit as required by OCGA § 9-11-9.1. The affidavit showed on its face that the expert executed it under oath before a notary public. In a subsequent deposition, the expert testified that the notary public whose jurat appeared on the affidavit did not administer an oath to him before he signed it. The trial court granted summary judgment in favor of Murray on the basis that Harris failed to comply with the affidavit requirement of OCGA § 9-11-9.1 because without an oath the document was not an affidavit. Harris claims the trial court erred in granting summary judgment to Murray because (1) Murray waived lack of compliance with OCGA § 9-11-9.1 as a defense by failing to raise the defense in his initial responsive pleading; and (2) the affidavit was in fact executed under oath.

1. Prior to discussing the application of OCGA § 9-11-9.1 to the facts of this case, we must first determine which version of the statute applies. The present action was filed on December 14, 1995. In 1997, the legislature amended § 9-11-9.1 with an effective date of July 1, 1997. Ga. L. 1997, pp. 916, 919, § 2. Section 2 of the 1997 amendments provided that the 1997 act “shall apply only to actions filed on or after [the effective] date.” Id. Accordingly, the legislature expressed its intention that the 1997 amendments apply prospectively.

In Vester v. Mug A Bug Pest Control, 231 Ga. App. 644 (500 SE2d 406) (1998), this Court recognized that § 9-11-9.1 is a statute governing procedural rather than substantive matters; that the effective date of the 1997 amendments to § 9-11-9.1 was July 1,1997, and that the legislature provided in Section 2 of the amendments that the 1997 act “ ‘shall apply only to actions filed on or after (the effective) date.’ ” Id. at 649. Despite the above-quoted language indicating prospective application of the 1997 amendments, Vester concluded that: “Such language is applicable only to laws that create substantive rights that cannot be given retroactive effect, because the parties are vested with substantive rights. See OCGA § 1-3-5; Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988); Pritchard v. Savannah Street &c. R. Co., 87 Ga. 294 (13 SE 493) (1891). This Court has held that OCGA § 9-11-9.1 is procedural in nature, conveying no vested rights, and can be applied retroactively. Kneip v. Southern Engineering, 260 Ga. 409, 410-411 (4) (395 SE2d 809) (1990); Blackmon v. Thompson, 195 Ga. App. 589 (394 SE2d 795) (1990); Precision Planning v. Wall, 193 Ga. App. 331 (387 SE2d 610) (1989). As a procedural law, notwithstanding the legislative attempt to make the application prospective only, the reenactment has retroactive application.” Id.

The above-quoted holding in Vester is contrary to long established law, subverts the clear legislative intent for prospective application of the 1997 amendments, and we therefore overrule it. The correct rule is that “where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. Pritchard v. The Savannah Street &c. Co., 87 Ga. 294 (13 SE 493) (1891); Slaughter v. Culpepper, 35 Ga. 25 (1866).” (Emphasis supplied.) Polito v. Holland, 258 Ga. at 55. The legislature expressed its intention that the 1997 amendments to § 9-11-9.1 be given prospective application by plainly stating that the 1997 act “shall apply only to actions filed on or after [the effective] date.” Ga. L. 1997, pp. 916, 919, § 2. Vester incorrectly cited Pritchard, 87 Ga. 294 and Polito, 258 Ga. 54 for the proposition that only statutes creating substantive rights can be given prospective application. In fact, these cases recognize the power of the legislature to give prospective application to procedural statutes by expressing a legislative intention to do so. Vester also misleadingly cites Kneip, 260 Ga. 409; Blackmon, 195 Ga. App. 589, and Precision Planning, 193 Ga. App. 331, in support of its conclusion that the 1997 amendments apply retroactively. Although these cases correctly concluded that § 9-11-9.1 is procedural and that the statute applied retroactively, all three cases dealt with the 1987 version of the statute and its 1989 amendment. Contrary to the 1997 amendments to § 9-11-9.1, neither the 1987 version of the statute nor the 1989 amendment contained any expression by the legislature that they were to be given prospective application. Ga. L. 1987, pp. 887, 889-890, § 3; Ga. L. 1989, pp. 419, 421-422, § 3. Accordingly, the 1997 amendments to OCGA § 9-11-9.1 do not apply retroactively to this case; rather, the former version of the statute controls.

2. We find no merit in Harris’ contention that Murray waived his defense under OCGA § 9-11-9.1.

Murray’s defense under § 9-11-9.1 was that the expert affidavit, which appeared valid on its face when it was filed with the complaint, was subsequently shown not to be an affidavit because it was not given under oath. Murray raised this defense after the expert testified on deposition that no formal oath was administered to him when he executed the affidavit.

Prior to the 1997 amendments to § 9-11-9.1, former subsection (e) of the statute provided in pertinent part that: “Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15. . . .” In Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 724 (470 SE2d 283) (1996), we construed former subsection (e) in a case where the malpractice plaintiff failed to file any document purporting to be the required expert affidavit with the complaint, and the malpractice defendant did not raise this failure as a defense in its initial responsive pleading. On these facts, we concluded that under the plain language of the statute, the defendant’s failure to raise the lack of an affidavit in its initial responsive pleading was a waiver of the defense. Id. at 724.

The waiver holding in Seely is inapplicable to the present facts. Because Harris filed a document with the complaint which appeared on its face to be a valid expert affidavit in compliance with OCGA § 9-11-9.1, Murray initially had no reason to challenge the affidavit and, therefore, he had no duty under the statute to raise any § 9-11-9.1 defense in his initial responsive pleading to the complaint. When Murray subsequently deposed the expert, the expert testified that no formal oath was administered to him before he executed the affidavit. Upon making this discovery, Murray’s first response was to file motions seeking dismissal or summary judgment on the complaint in which he raised the defense that Harris failed to file the required affidavit. Under these facts, there was no waiver of the § 9-11-9.1 defense. Because Murray acted diligently in raising the defense in the first pleading he filed after discovering evidence causing him to challenge the validity of the affidavit, he satisfied the statutory requirement that the defendant raise the failure to file the required affidavit “in its initial responsive pleading.” OCGA § 9-11-9.1 (e), (f); Phoebe Putney Mem. Hosp. v. Skipper, 226 Ga. App. 585, 586 (487 SE2d 1) (1997) (physical precedent), cert, granted by the Supreme Court and remanded to the Court of Appeals in unpublished order (1998).

This conclusion comports with our duty to construe the statute in a manner that gives effect to the intention of the legislature. City of Roswell v. City of Atlanta, 261 Ga. 657 (410 SE2d 28) (1991). Although the statute does not plainly address its application to the present facts, the legislature clearly intended to allow the defendant in a malpractice case to raise the failure to file the required expert affidavit at the defendant’s first opportunity. Murray’s first opportunity to file a responsive pleading raising the defense was not in his initial responsive pleading after the complaint, but in his initial responsive pleading after the deposition in which it was revealed that no formal oath was administered. To construe the statute under these facts to mean that defendants waive the defense unless they preserve it by raising it in their initial responsive pleading to the complaint would require defendants to universally raise possible defenses in response to the complaint without any factual basis at the time for doing so. The legislature could not have intended this result because it would place defendants attempting to preserve the defense in violation of the requirements of honesty and good faith in pleading and would subject them to possible abusive litigation claims. North Ga. Production Credit Assn. v. Vandergrift, 239 Ga. 755, 763 (238 SE2d 869) (1977); OCGA § 51-7-80 et seq.

3. Harris asserts that, contrary to the trial court’s finding, the expert affidavit was given under oath. We agree with this assertion.

“In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” Carnes v. Carnes, 138 Ga. 1, 6 (74 SE 785) (1912). It is not necessary that the oath administered be formal, nor is it necessary that any exact words or specific ceremony be used to constitute a valid administration of an oath. McCain v. Bonner, 122 Ga. 842, 846 (51 SE 36) (1905); Britt v. Davis, 130 Ga. 74, 77 (60 SE 180) (1908). “What the law requires is that there must be, in the presence of the officer, something done whereby the person to be bound consciously takes upon himself the obligation of an oath. It is not essential that affiant should hold up his hand and swear in order to make his act an oath, but it is sufficient if both affiant and the officer understand that what is done is all that is necessary to complete the act of swearing.” (Citations and punctuation omitted.) McCain, 122 Ga. at 846.

In the instant case, although the affiant did not hold up his hand and swear before signing the affidavit, it is uncontroverted that both he and the notary public understood that his actions and signing of the affidavit in the notary public’s presence were all that was necessary to complete the act of swearing. The record shows that in response to Murray’s summary judgment motion, Harris produced additional affidavits from Jeffrey S. Penner, M.D., the expert affiant on the § 9-11-9.1 affidavit, and from Laurette Ross, the notary public before whom Penner appeared to execute the § 9-11-9.1 affidavit.

Ross stated in her affidavit that “[o]n December 11,1995, Jeffrey S. Penner, M.D., appeared before me in order to execute an [expert] Affidavit to be given in [this case]. By his actions, I understood that he considered himself to be under oath when he executed the Affidavit.” Similarly, Penner stated in his second affidavit that “[o]n December 11, 1995,1 executed the document labeled Affidavit of Jeffrey S. Penner, M.D (hereinafter referred to as ‘First Affidavit’). At the time of executing the First Affidavit, I was standing before Laurette Ross, the notary public. As recited in the First Affidavit, I knew the document I was signing was intended to be an affidavit. I did consciously, in the presence of the notary, take upon myself the obligations of the oath. I intended all of the statements made in the First Affidavit to be truthful and understood myself to be under oath.”

Contrary to Chief Judge Andrews’ dissent, the evidence shows more than that Penner merely signed a document. The affidavit Penner signed clearly stated it was being made under oath, and Penner has said that he read and understood that it was being made under oath before he signed it. Furthermore, the signing was done in front of the notary public and she has sworn that by Penner’s actions she understood that he considered himself to be under oath when executing the affidavit. Because Penner signed the affidavit in front of Ross and because they both understood that what he had done was sufficient to complete the act of swearing, we must conclude that the affidavit was given under oath and is valid.

The dissent contends that this conclusion virtually eliminates the requirements for a valid oath set forth in McCain, supra, Britt, supra, and Carnes, supra. This contention is without merit. All three of those cases involved affidavits signed by affiants outside the presence of officers who later signed the affidavits. In both Carnes and Britt the Supreme Court found that affidavits signed by affiants outside the presence of the officers were invalid. In McCain, supra at 846, the Court determined that there was evidence the previously signed affidavit was valid when the affiant presented it to the officer, the affiant swore the affidavit was true, and then the officer signed the jurat. Our holding in the instant case, that the affidavit was valid because Penner signed it in front of Ross and they both understood that he was under oath, falls squarely under the authority of Carnes, Britt and McCain.

Moreover, this holding comports with the expressed intention of the legislature and our Supreme Court that the affidavit requirement be liberally construed in favor of the plaintiff and that amendment of the affidavit should be allowed to make it comport with OCGA § 9-11-9.1. “Because OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of § 9-11-9.1, which is to reduce the filing of frivolous malpractice suits.” Porquez v. Washington, 268 Ga. 649, 652 (492 SE2d 665) (1997). “[A] § 9-11-9.1 affidavit should be construed most favorably to the plaintiff with all doubts resolved in plaintiffs favor, even if an unfavorable construction of the affidavit may be possible.” Id. at 650. See also Gadd v. Wilson &c., 262 Ga. 234, 235 (416 SE2d 285) (1992). Moreover, when the sufficiency of the expert affidavit initially filed with the complaint is challenged, a plaintiff is allowed to present supplementary evidence in support of its sufficiency. Hewett v. Kalish, 264 Ga. 183, 184-185 (442 SE2d 233) (1994); Porquez, 268 Ga. at 651-652. This is true whether the challenge is to the expert’s competency or to the sufficiency of the expert’s statements regarding negligent acts. Id. As the Supreme Court stated in Porquez, “[pjermitting the plaintiff to amend the expert affidavit in order to meet the requirement that it set forth at least one claimed negligent act or omission by each defendant and its factual basis does not defeat the purpose of the statute, but instead helps to insure that the complaint is not frivolous.” Id. at 652. The court in Porquez also concluded that the Legislature intended for plaintiffs to have a broad right to amend defective affidavits under former § 9-11-9.1. Id. at 652. In support of this conclusion, Porquez pointed out that the 1997 amendment to § 9-11-9.1 provides in subsection (d) that if the defendant alleges by motion filed with the initial responsive pleading that the expert affidavit filed with the complaint is defective, the plaintiff may cure the alleged defect by amendment pursuant to OCGA § 9-11-15 within 30 days of service of the motion. Id.

In this case Harris clearly fulfilled the intent behind OCGA § 9-11-9.1 to thwart the filing of frivolous lawsuits by filing an expert affidavit, given under oath, that clearly states an act of professional negligence by the defendant Murray. The trial court’s grant of summary judgment to Murray was erroneous and must be reversed.

Judgment reversed.

Johnson, P. J., Beasley, Blackburn, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J, and Eldridge, J, concur specially. Andrews, C. J, dissents.

Eldridge, Judge,

concurring specially.

1. Reluctantly, I agree with the majority as to the need to overrule in part Vester v. Mug A Bug Pest Control, 231 Ga. App. 644 (500 SE2d 406) (1998), because the General Assembly in passing Ga. L. 1997, pp. 916, 919, § 2 (OCGA § 9-11-9.1), included the language when setting the effective date: “shall apply only to actions filed on or after [the effective] date,” which prohibits the. retroactive application of the Act. While the statement as to limitation of retroactivity by the General Assembly of procedural matter was dicta, the Supreme Court in Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988) quoting dicta in Pritchard v. Savannah Street &c. R. Co., 87 Ga. 294, 297-299 (13 SE 493) (1891) did state: “[generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be . . . retroactive [in] effect absent an express contrary intention. . . . Substantive law is that law which creates rights, duties, and obligations. Procedural law is that which prescribes the methods of enforcement of rights, duties, and obligations.” Accord Barner v. State, 263 Ga. 365, 367 (4) (434 SE2d 484) (1993); Cannon v. State, 246 Ga. 754, 755 (1) (272 SE2d 709) (1980); Thurman v. Mabry, 221 Ga. 153, 154 (143 SE2d 645) (1965); Logan v. State, 212 Ga. App. 734, 736-737 (b) (442 SE2d 883) (1994); Clary v. State, 151 Ga. App. 301, 302 (2) (259 SE2d 697) (1979); Rider v. Taylor, 166 Ga. App. 474, 475 (2) (143 SE2d 645) (1965). This was the first time that the General Assembly, in the many times amending the Civil Practice Act, has expressly restricted retroactive application of this procedural act. Thus, absent a clear and unambiguous expression of intent by the General Assembly, as in this amendment, to prohibit the retroactive application of a procedural act or amendment, such procedural act will apply retroactively.

2. While I agree with Division 2 of the majority in its entirety as it applies to OCGA § 9-11-9.1 prior to the effective date of Ga. L. 1997, pp.'916, 919, § 2,1 would point out that the General Assembly intended in the 1997 amendment to prevent such issues, as in this case, being raised later by either motion to dismiss, OCGA § 9-11-12 (b) (6), or by summary judgment, OCGA § 9-11-56, because the defendant shall raise such defense “by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit.” See OCGA § 9-11-9.1 (b) (as amended). The legislative intent was to prevent the very technical attack made in this case; either the motion to dismiss is made contemporaneously with the responsive pleading or no motion to dismiss can be later filed, because the purpose of OCGA § 9-11-9.1 was to reduce the number of frivolous malpractice suits being filed by requiring an affidavit which makes out a prima facie case of liability as a condition precedent and which would have been done, notwithstanding that the affidavit is defective but amendable. O-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989); accord Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994); Gadd v. Wilson &c., 262 Ga. 234, 235 (416 SE2d 285) (1992); Housing Auth. of Savannah v. Greene, 259 Ga. 435, 439 (5) (383 SE2d 867) (1989). OCGA § 9-11-9.1 merely imposes a pleading requirement. See Hewett v. Kalish, supra at 184. Thus, after July 1, 1997, such attack on the affidavit must be raised, not at the earliest possible opportunity, but contemporaneous with the responsive pleadings. See OCGA § 9-11-9.1 (b). Thus, if the expert witness’ deposition is taken and a material issue of fact is raised as to liability through the expert witness’ testimony, then any defect in the affidavit has been cured by the sworn testimony of such expert as to the facts and issues contained in the affidavit and the only method of attack remaining is on the merits of the case by summary judgment. See Porquez v. Washington, 268 Ga. 649, 651-652 (1) (492 SE2d 665) (1997); Hewett v. Kalish, supra at 184-185. A defect in pleading cannot be raised by summary judgment. See Porquez v. Washington, supra at 651-652; Hewett v. Kalish, supra at 184-185. If such procedure is not followed, then OCGA § 9-11-9.1 will be used as a procedural barrier to trial on the merits on technical grounds as to the affidavit alone. There would exist, not a frivolous malpractice suit, but a suit that could withstand summary judgment on the merits; however, discovery may disclose a latent defect in the affidavit, i.e., that no oath was properly administered in the notary’s presence, that the notary’s commission expired, that the lawyer-expert failed to pay bis current bar dues before time of the affidavit, or that some similar amendable defect existed to the affidavit.

3. I concur fully with Division 3 of the majority and the judgment.

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

Andrews, Chief Judge,

dissenting.

I fully concur with all that is said in Division 1 of the majority opinion. The majority correctly concludes that Vester v. Mug A Bug Pest Control, 231 Ga. App. 644 (500 SE2d 406) (1998) wrongly held that the 1997 amendments to OCGA § 9-11-9.1 have retroactive application. Accordingly, I agree with the majority that the 1997 amendments to § 9-11-9.1 do not apply retroactively; that Vester’s erroneous holding should be overruled, and that the pre-1997 version of § 9-11-9.1 applies to this case.

I also fully concur with all that is said in Division 2 of the majority opinion. I agree that Murray preserved his § 9-11-9.1 defense by diligently raising it in the first pleading he filed after the expert affiant testified in his deposition that no oath was administered to him by the notary before he executed the purported affidavit. I add that this is the only reasonable interpretation that can be given to § 9-11-9.1 under these circumstances. To otherwise conclude that the defense of lack of compliance with the expert affidavit requirement is waived if not filed with the initial responsive pleading to the complaint would construe the statute as allowing a plaintiff to file a document which purports on its face to be an affidavit, but in fact is not, escape any subsequent challenge to its validity, and proceed with a malpractice action without a valid expert affidavit. This would frustrate the recognized intent of the statute to reduce the filing of frivolous malpractice actions by requiring a valid expert affidavit to be filed with the complaint. 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (378 SE2d 708) (1989).

I respectfully dissent because I disagree with the majority’s conclusions in Division 3 that the purported affidavit was given under oath, and that the trial court erred by granting summary judgment to Murray. The trial court correctly concluded that the purported affidavit was not given under oath: Therefore, the trial court correctly granted summary judgment to Murray on the basis that the document was not an affidavit, and that Harris failed to file an expert affidavit with the complaint as required by § 9-11-9.1. The pre-1997 version of § 9-11-9.1, which applies in this case, plainly requires that Harris’ malpractice complaint be dismissed under these circumstances.

The majority finds that, even though the purported affidavit at issue was not executed with a formal oath, there was an informal oath sufficient to sustain the document as an affidavit. The evidence, however, does not support this holding.

On deposition, the expert affiant testified that the notary public whose jurat appeared on the purported affidavit did not administer an oath to him before he signed it. After making this discovery, Murray moved for dismissal of the complaint and for summary judgment on the basis that, without an oath, there was no affidavit and, therefore, Harris had failed to file an expert affidavit as required by OCGA § 9-11-9.1. In response to the summary judgment motion, Harris produced additional affidavits from Jeffrey S. Penner, M.D., the expert affiant on the purported § 9-11-9.1 affidavit, and from Laurette Ross, the notary public before whom Penner appeared to execute the § 9-11-9.1 affidavit.

Ross stated by affidavit that: “On December 11, 1995, Jeffrey S. Penner, M.D., appeared before me in order to execute an [expert] Affidavit to be given in [this case]. By his actions, I understood that he considered himself to be under oath when he executed the Affidavit.” Penner stated by affidavit that: “On December 11, 1995, I executed the document labeled Affidavit of Jeffrey S. Penner, M.D. (hereinafter referred to as ‘First Affidavit’). At the time of executing the First Affidavit, I was standing before Laurette Ross, the notary public. As recited in the First Affidavit, I knew the document I was signing was intended to be an affidavit. I did consciously, in the presence of the notary, take upon myself the obligations of the oath. I intended all of the statements made in the First Affidavit to be truthful and understood myself to be under oath.”

Under long established law, these facts are insufficient to show that anything was done which could be construed as an oath administered by the officer and taken by the affiant. “In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” Carnes v. Carnes, 138 Ga. 1, 6 (74 SE 785) (1912). It is not necessary that the oath administered be formal, nor is it necessary that any exact words or specific ceremony be used to constitute a valid administration of an oath. McCain v. Bonner, 122 Ga. 842, 846 (51 SE 36) (1905); Britt v. Davis, 130 Ga. 74, 77 (60 SE 180) (1908). “What the law requires is that there must be, in the presence of the officer, something done whereby the person to be bound consciously takes upon himself the obligation of an oath. It is not essential that affiant should hold up his hand and swear in order to make his act an oath, but it is sufficient if both affiant and the officer understand that what is done is all that is necessary to complete the act of swearing.” (Citation and punctuation omitted.) McCain, 122 Ga. at 846.

It is clear that, in order to show an oath was taken and administered, there must be more shown than simply statements after the fact by the affiant and the notary that an oath was intended — there must be evidence that, while the officer, the affiant, and the paper were present, something was done which amounts to the administration of an oath. Carnes, 138 Ga. at 6; McCain, 122 Ga. at 846. “[T]he mere opinion of the [affiant] that the [officer] understood he was swearing, because he went there for the purpose, can not avail, where his testimony as to what actually occurred shows that he did not in fact swear to the paper, and that there was nothing from which such an inference could legally be drawn.” Britt, 130 Ga. at 78. For example, “[t]he mere handing to an officer authorized to administer oaths of an affidavit previously signed by one who is recited therein as having been duly sworn, and in whose presence the officer signed the jurat without administering a formal oath, has been held not to amount to the administration of an oath. In a transaction of this character there is no unequivocal and present declaration or act on the part of the affiant by which he consciously takes upon himself the obligation of an oath. If, however, the affiant, at the time of tendering the affidavit to the officer, uses language signifying that he consciously takes upon himself the obligation of an oath, and the officer so understands and immediately signs the jurat, this will amount to such concurrence of act and intention as will constitute a legal swearing. The acts of the officer and of the affiant must be concurrent and must conclusively indicate that it was the purpose of the one to administer and the other to take the oath, in order to make a valid affidavit. When an affiant presents to the officer an affidavit previously signed by him, with the statement that he is familiar with its contents, that what is therein contained is true, and that he swears to the same, and the officer immediately, on the faith of such declaration, affixes his official signature to the jurat, this conduct would not only indicate that the affiant understood he was taking an oath, but also that the officer likewise so understood, and, by presently signing the jurat, evidenced his intention to administer an oath.” McCain, 122 Ga. at 846.

The facts in the present case show only that the affiant signed the purported affidavit in the presence of the notary; that the purported affidavit contained language that it was executed under oath, and that the purported affidavit was then presented to the notary who immediately signed the jurat without administering an oath. The only additional evidence presented by the affiant, Penner, was that, when he executed the document, he knew the document was intended to be an affidavit; that he understood himself to be under oath, and that he consciously took upon himself the obligations of an oath. Penner presented no evidence that he said anything in the presence of the notary or did anything in the presence of the notary, other than the fact he signed the purported affidavit. The notary stated only that Penner executed the purported affidavit in her presence and that she understood he considered himself to be under oath by his actions when he executed the purported affidavit. The only evidence of any action taken by Penner is that he executed the purported affidavit in the presence of the notary. There is no evidence of anything said or done by the notary, other than the fact that she signed the jurat.

In support of its conclusion that an oath was administered and taken, the majority contends that more occurred than the mere signing of the purported affidavit by Penner. The majority points out that the purported affidavit had language in it that stated it was executed under oath and that Penner said in his subsequent affidavit that, at the time he signed the purported affidavit, he understood himself to be under oath. The majority also points out that the signing took place in front of the notary, who said in her subsequent affidavit that, by Penner’s actions, she understood that he considered himself to be under oath when he executed the purported affidavit. However, the majority points to no evidence of action taken by Penner other than signing the purported affidavit. The above facts are cited by the majority to support its conclusion that: “Because Penner signed the affidavit in front of Ross and because they both understood that what he had done was sufficient to complete the act of swearing, we must conclude that the affidavit was given under oath and is valid.” (Maj. op. at p. 665.)

These facts show a total absence of evidence of any words spoken or any actions taken which amount to the administration and taking of an oath. In the absence of such evidence, the notary and the affiant have simply stated in subsequent affidavits, after the fact, that they understood an oath was intended. But they have provided no evidence that something was done which amounted to the actual administration and taking of an oath. This fails to satisfy the requirement that there be “such concurrence of act and intention as will constitute a legal swearing.” McCain, 122 Ga. at 846. Given that the only evidence of word or action was that the affiant signed the purported affidavit in the presence of the notary, and the notary immediately signed the jurat, the majority holding reduces a legal swearing to the simple act of signing the purported affidavit. This dismisses the oath requirement as no more than a technical formality and virtually eliminates the requirements for a valid oath set forth in McCain, 122 Ga. 842; Britt, 130 Ga. 74 and Carnes, 138 Ga. 1. Moreover, the majority’s additional contention that the liberal interpretation required to be given to § 9-11-9.1 affidavits supports its conclusion that there was a valid oath is misplaced. The favorable construction given to § 9-11-9.1 affidavits after they have been filed with a malpractice complaint has absolutely nothing to do with determining whether a document purporting to be an affidavit was in fact given under oath. If a document purporting to be an affidavit was not given under oath, it is not an affidavit, and no interpretation of § 9-11-9.1 can change that fact.

As this Court has previously stated, “ ‘[w]e can not but deprecate the tendency to treat the taking of an oath as a mere technical formality, worthy of little attention. In the strenuous age in which we live speed is deemed of prime importance. But one must still pause long enough to verify the statements contained in a paper prepared for use as an affidavit, by swearing to them . . .’ [quoting Britt, 130 Ga. at 78]. Whether the affiant testifies in view of his responsibility to God or only to the . . . law, in either event what he does is something more than merely to sign a paper.” (Punctuation omitted.) Gruber v. Fulton County, 111 Ga. App. 71, 78 (140 SE2d 552) (1965).

That a legal swearing amounting to an oath must consist of more than merely signing a purported affidavit in the presence of a notary is illustrated by the case of Bertha Mineral Co. v. Buie, 27 Ga. App. 660 (109 SE 539) (1921). In Bertha Mineral, the officer who signed the jurat described the purported affidavit as follows: “That is my signature (indicating the signature to the jurat. . . .) At the time this paper was signed (indicating said alleged affidavit) before me by [the affiant], I administered no oath or affirmation at all to him that I know of. I think he just signed his name.” Id. at 662. The evidence showed that the affiant told the officer that he wanted to swear to the paper in the presence of the officer. Id. at 663. But the affiant made no statement that the contents of the paper were true, and the officer did not question him about the contents of the paper. Id. at 663-664. Relying on McCain, 122 Ga. 842 and Britt, 130 Ga. 74, this Court concluded that: “While it is true that the introduction of the alleged affidavit in evidence, which appears on its face to be regular, cast the burden upon the party attacking it to show that it was not in fact legally executed, still it is our opinion that the evidence quoted above was sufficient to carry this burden. That evidence shows conclusively that no oath was administered, nor anything done which the law deems sufficient as amounting to the administration of an oath. Therefore the paper claimed to be an affidavit can neither suffice as such. . . .” Bertha Mineral, 27 Ga. App. at 663. We further concluded that, “[t]he mere statement that [the affiant] told the officer that ‘he wanted to swear to a paper’ in his presence is insufficient. What one wants to do and what one actually does are two entirely different things. The facts of the instant case do not, therefore, measure up to the test laid down in the McCain case, supra, since the evidence shows conclusively that the affiant did not in fact swear to the paper, and the facts failed to present anything from which such an inference could legally be drawn.” Bertha Mineral, 27 Ga. App. at 664.

Applying the facts of this case to the above controlling authorities, there is no evidence in the present record of anything said or done which could support an inference that Ross administered and Penner took an oath when the purported affidavit was executed. It follows that the purported affidavit was not in fact a valid affidavit, and therefore Harris failed to file an expert affidavit with her complaint as required by § 9-11-9.1.

Since Harris failed to file an expert affidavit with her malpractice complaint as required by § 9-11-9.1, the trial court properly granted summary judgment in favor of Murray and dismissed the complaint. Because the purported affidavit appeared on its face to be properly sworn, the application of pleading rules did not result in the complaint being subject to dismissal. See Hewett v. Kalish, 264 Ga. 183, 184 (442 SE2d 233) (1994). But after Murray discovered evidence that no oath had been given to the expert by the notary public, he moved for dismissal and summary judgment on the basis that Harris failed to file an expert affidavit. In considering matters outside the pleadings, the trial court treated the motion as one for summary judgment. Id. at 185. After considering Harris’ response to the motion, the trial court concluded that Murray pierced Harris’ pleading affidavit by showing that in the absence of an oath, the purported affidavit was no affidavit at all. See id. at 185. “In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with [other evidence].” Laurens County v. Keen, 214 Ga. 32, 35 (102 SE2d 697) (1958); Schmidt v. Feldman, 230 Ga. App. 500, 501 (497 SE2d 23) (1998); Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994).

Harris does not seek in this case to amend an insufficient or defective § 9-11-9.1 affidavit. The purported affidavit Harris filed with her complaint to comply with § 9-11-9.1 was in fact not an affidavit. Instead, Harris seeks an interpretation of § 9-11-9.1 that would allow her to obtain a valid affidavit and file it for the first time after the commencement of the action. No such construction can be placed upon the statute since this is precisely what § 9-11-9.1 prohibits by its plain terms.

Neither the liberal construction given to § 9-11-9.1 affidavits nor the broad right to amend such affidavits when they are insufficient or defective requires a different result. Section 9-11-9.1 affidavits are given a construction favorable to the plaintiff with respect to compliance with the procedural requirements of the statute. Porquez v. Washington, 268 Ga. 649, 650 (492 SE2d 665) (1997). Moreover, when the sufficiency of the affidavit is challenged, whether by a challenge to the expert’s competency or by a challenge to the sufficiency of the expert’s statements regarding negligent acts, the plaintiff is allowed to present supplementary evidence in support of the affidavit. Hewett, 264 Ga. at 184-185; Porquez, 268 Ga. at 651-652. However, the liberal construction and broad right granted under § 9-11-9.1 to amend defective affidavits has never been construed under the pre-1997 version of the statute to include the right to file a valid affidavit after the action has been commenced when no valid affidavit was filed with the complaint. Although, as the majority points out, the 1997 amendment to § 9-11-9.1 provides plaintiffs with a newly created 30-day period to cure alleged defects by amendment pursuant to OCGA § 9-11-15, the Legislature did not give the 1997 version of the statute retroactive application, and it has no application in this case. In fact, the pre-1997 version of § 9-11-9.1 applicable in this case precludes amendment under § 9-11-15 when the plaintiff fails to file an affidavit with the complaint. Since a writing in the form of an affidavit, but without a valid jurat, has no force or validity and amounts to nothing, standing alone or construed with other evidence, the unsworn writing in the form of an affidavit filed by Harris with her complaint was not an affidavit. Laurens County, 214 Ga. at 35; Harvey, 213 Ga. App. at 320; Schmidt, 230 Ga. App. at 501.

Decided July 16, 1998

Reconsideration denied July 30, 1998

Weinstock & Scavo, Michael Weinstock, John B. Levy, for appellant.

Harris’ failure to file an affidavit with the complaint subjected the complaint to dismissal for failure to state a claim under the express provisions of subsection (e) of § 9-11-9.1. Subsection (e) provides that: “Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” Construing subsection (e) in Hewett, the court held that “[b]y referencing subsection (b) [of § 9-11-9.1], which sets forth one exception when a plaintiff need not file an expert affidavit with the complaint, and by providing that the complaint can be amended if the plaintiff had the affidavit before filing the complaint but by mistake failed to file it, subsection (e) [of § 9-11-9.1] is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit.” Hewett, 264 Ga. at 185-186. Because subsection (b) of § 9-11-9.1 is inapplicable in this case, and Harris did not have an affidavit before filing the complaint, neither of these exceptions limits the application of Subsection (e). Under the plain and unambiguous terms of § 9-11-9.1 (e), Harris’ failure to file an affidavit with the complaint subjected the complaint to dismissal for failure to state a claim, and the failure could not be cured by amendment pursuant to OCGA § 9-11-15.

Beckmann & Pinson, William H. Pinson, Jr., William R. Dekle, for appellees.

Block, Lepore & Sanders, Matthew Lepore, amicus curiae.

       The complaint also names other defendants who are not parties to this appeal.

       Of course, this newly created 30-day right to cure alleged defects does not apply in the present case since, as previously stated, the 1997 amendments have no application here.


source: Caselaw Access Project

author: Johnson, Presiding Judge. Andrews, Chief Judge, Judge Harold R. Banke,

license: Public Domain

text:
    A98A0211.
    McCOMBS v. SOUTHERN REGIONAL MEDICAL CENTER, INC. et al.
    (504 SE2d 747)
   Johnson, Presiding Judge.

Following the grant of her application for interlocutory appeal, Linda McCombs appealed the order of the trial court denying her motion for default judgment against Synthes, Inc., Synthes North America, Inc. and Synthes Ltd., U.S.A. and granting a motion to dismiss filed by Southern Regional Medical Center, Inc. and its parent corporation, Georgia MedCorp, Inc.

Linda McCombs underwent spinal surgery at Southern Regional Medical Center, Inc., a hospital facility owned by Georgia MedCorp, Inc. The surgical procedure involved, inter alia, the installation of a plate device to stabilize her spine. The surgeon installed a plate system manufactured by Synthes (U.S.A.). After experiencing problems with the plate, which she contends was fractured, Linda McCombs brought a product liability suit against Synthes, Inc., Synthes North America, Inc., Synthes Ltd., U.S.A., Synthes Spine Company, L.P., a/ k/a Synthes Spine Company L.P., and Synthes (U.S.A.), a/k/a Synthes, U.S.A., alleging strict liability and negligent design, manufacture and testing of the plate system. She also sued all Synthes defendants, Southern Regional Medical Center, Inc., and Georgia MedCorp, Inc., under the Georgia Uniform Commercial Code (OCGA §§ 11-2-314 and 11-2-315) and the Magnuson-Moss Act (15 USC § 2301 et seq.) asserting that these seven defendants had breached implied warranties of merchantability and fitness of the product for a particular purpose. Synthes Spine Company, L.R was served on November 27, 1996, and the remaining Synthes defendants were served on December 9, 1996.

1. The trial court did not err in dismissing the breach of warranty claims against Southern Regional Medical Center, Inc. and Georgia MedCorp, Inc. Neither did the trial court err in dismissing McCombs’ claim under the Magnuson-Moss Act. We will not reverse the correct judgment of a trial court regardless of the reason given therefor. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989).

(a) Magnuson-Moss Act. As appellant has failed to cite authority or to argue in her brief that the trial court erred in dismissing the Magnuson-Moss Act breach of implied warranty claims, this issue has been abandoned. Court of Appeals Rule 27 (c); compare Mander son & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251) (1989).

Furthermore, the Magnuson-Moss Act, 15 USC § 2311 (b) (2), pertinently provides: “nothing in this title shall . . . impose liability on[ ] any person for personal injury.” See Santarelli v. BP America, 913 FSupp. 324 (M.D. Pa. 1996) (Magnuson-Moss Act does not create a private independent cause of action for personal injuries that are otherwise state law claims for breach of warranty). The trial court did not err in dismissing the Magnuson-Moss Act claims. OCGA § 9-11-12 (b) (6).

(b) Dismissal of Breach of Warranty Claims. The trial court did not err in dismissing the breach of warranty claims against Southern Regional Medical Center, Inc. and Georgia MedCorp, Inc. The two implied warranties at issue arise, if at all, by operation of OCGA §§ 11-2-314 and 11-2-315. However, Article 2 of the Georgia Uniform Commercial Code (UCC) applies to the sale of consumer goods, not to the provision of services. OCGA § 11-2-102. In a hybrid contract for both goods and services, where the predominant element is the furnishing of services, the Georgia UCC is inapplicable. Mail Concepts v. Foote & Davies, Inc., 200 Ga. App. 778, 779 (1) (409 SE2d 567) (1991).

In this case, McCombs did not go to Southern Regional to purchase a cervical plate but to have her spinal problem surgically repaired. Southern Regional furnished its facility for use by her surgeon, and it supplied the requisite underlying support services, including the recovery room, laboratory, pharmacy support, and nursing care, to help facilitate the surgery and her recovery from it. Thus, the transaction at issue was one involving “services and labor with an incidental furnishing of equipment and materials.” (Punctuation omitted.) J. Lee Gregory, Inc. v. Scandinavian House, 209 Ga. App. 285, 288 (1) (433 SE2d 687) (1993). As such, the Georgia UCC has no application. Id.; see OMAC, Inc. v. Southwestern Machine &c., 189 Ga. App. 42 (374 SE2d 829) (1988).

In these circumstances the trial court did not err in dismissing these counts as a matter of law. OCGA § 9-11-12 (b) (6). We will not reverse the correct ruling of a trial court regardless of the reason given therefor. See Vaughan v. Vaughan, 253 Ga. 76, 77 (317 SE2d 201) (1984); Tony v. Pollard, 248 Ga. 86, 88 (1) (281 SE2d 557) (1981).

2. Denial of Motion for Entry of Default. McCombs asserts the trial court erred in denying her motion for entry of default against three of the Synthes defendants, because they failed to timely file an answer. We agree.

McCombs alleged breach of warranty against the following seven defendants: Southern Regional Medical Center, Inc., Georgia MedCorp, Inc., Synthes, Inc., Synthes North America, Inc., Synthes, Ltd., U.S.A., Synthes Spine Company, L.P., and Synthes (U.S.A.). There apparently is no dispute on appeal that each named defendant is a separate legal entity. Plaintiff therefore is entitled to have each defendant respond to each separate averment of her complaint relating to that particular defendant. See generally OCGA §§ 9-11-10 (b); 9-11-12. The answer “is primarily a vehicle for denial”; but under the Civil Practice Act it also can incorporate defenses other than mere denial of allegations. Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383, 384 (2) (203 SE2d 290) (1973), rev’d on other grounds, Eckles v. Atlanta Technology Group, 267 Ga. 801, 806 (485 SE2d 22) (1997). “The purpose of [the] answer is to formulate issues by means of defenses addressed to the allegations of the complaint. . . . [I]t is required that an answer contain a statement of facts sufficiently definite so that the plaintiffs will be informed of the defense they must be prepared to meet.” (Punctuation omitted.) Knickerbocker Tax System, supra at 385 (2). “If in any case an answer has not been filed within the time required by [the Civil Practice Act], the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.” OCGA § 9-11-55 (a).

Pleadings are to be construed to do substantial justice. OCGA § 9-11-8 (f). However, justice is not obtained when a pleading is so liberally construed as to circumvent its true intent, especially when the opposing party is thereby deprived of a significant statutory right — as in this case, of having default entered. See generally OCGA § 9-11-55 (a). Averments in a pleading are required to be “simple, concise, and direct.” OCGA § 9-11-8 (e) (1). A principal purpose of this requirement is to minimize the risk that an opposing party will be misled either as to the nature or scope of the pleading. When pleadings are unnecessarily complex, confusing as to their scope, or are worded in such a manner as to identify only indirectly issues and parties, litigants are misled and justice thwarted. This type of procedural practice cannot be condoned.

This suit was filed in state court. With certain limited exceptions, the Uniform Rules of Superior Courts are applicable in state courts. Ga. Ct. & Bar Rules, Uniform State Court Rules, p. 4-3. Uniform Superior Court Rule 4.2 (2) pertinently provides: “No attorney shall appear in that capacity before a superior [/state] court until the attorney has entered an appearance by filing a signed entry of appearance form or by filing a signed pleading in a pending action. An entry of appearance and all pleadings shall state: (2) the identity of the party for whom the appearance is made. . . . The filing of any pleading shall contain the information required by this paragraph.” And, this information must be averred in a simple, concise, and direct manner. OCGA § 9-11-8 (e) (1). Moreover, “[e]very pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name.” OCGA § 9-11-11.

In Cato Oil &c. Co. v. Lewis, 250 Ga. 24, 26 (3) (295 SE2d 527) (1982), the defendant contended that it was not in default because its motion to strike, in effect, was an answer within the contemplation of the Civil Practice Act. In rejecting this argument and concluding that the parenthetical address of a factual contention in the pleading was insufficient to alter its “basic character” as a motion to strike, the Supreme Court observed: “It is usually informative, in determining what a pleading is, to look at what the pleader says it is.” Id. Using this guidance, we analyze the answer at issue.

The answer is captioned as “Answer of Defendant Synthes Spine Company L.P.” This caption reflects that the answer is that of one and only one defendant, Synthes Spine Company, L.P. The opening paragraph of the answer again refers to a single defendant, Synthes Spine Company, L.P. and states that it files this “its” (not their) answer to plaintiff’s complaint. Synthes Spine Company, L.P. also avers in that same paragraph that it has improperly been named as “Synthes, [QU.S.A.D], Synthes, Inc.[,j Synthes North America, Inc. and Synthes Ltd., U.S.A.” In paragraph 1, first defense, Synthes Spine Company, L.P., avers, “upon information and belief” that “Synthes, [QU.S.A.[)j, Synthes, Inc.[,] Synthes North America, Inc. and Synthes Ltd., U.S.A.” do not market, manufacture or distribute the product at issue and that the complaint should be dismissed as to those four entities. Synthes Spine Company, L.P. admits that it is the correct legal entity and states, “[djefendant now answers this Complaint on behalf of Synthes Spine Company, L.P. which should be substituted for Synthes, [QU.S.A.D], Synthes, Inc., Synthes North America, Inc., and Synthes Ltd., U.S.A.” Although certain of the remaining paragraphs in the answer refer to “this [djefendant,” paragraph 12 does make a broad reference to “these [djefendants in this case.” Other paragraphs in the complaint refer to “[djefendant Synthes,” and the bottom of each page of the complaint, except the first page, states “[ajnswer of [djefendant Synthes,” and lists the respective page number of the complaint. All references to “[djefendant Synthes” unequivocally are to Synthes Spine Company, L.P, as evidenced by the general statement in the opening paragraph that Synthes Spine Company, L.P. will hereinafter be referred to as “Synthes,” and by the context in which each reference to defendant Synthes Spine Company, L.P. is made. Moreover, the trial court ruled that only paragraph 1, first defense, of the answer constituted the joint answer of all the Synthes entities, thereby implicitly rejecting that the other paragraphs, including those expressly referring to “[djefendant Synthes,” were intended to apply to all the Synthes entities. As stated by the trial court, “[cjlearly, beginning with paragraph two, the [ajnswer applies only to the [djefendant Synthes Spine Company, L.P., and has no relationship to the other [djefendants.”

Even more compelling, especially in view of the requirement of USCR 4.2 (2), is that the answer is signed by two law firm attorneys who, as officers of the court, identify their representative capacity as, “ATTORNEYS FOR SYNTHES SPINE COMPANY, L.P.” (Capitalization in original.) No other Synthes defendant is listed by the attorneys as being represented by them in the answer at issue. Further, the certificate of service bears certification that there has been served a true and correct copy of ‘ANSWER OF DEFENDANT SYNTHES SPINE COMPANY L.P.” (Capitalization and bolding in original.) Likewise, this document contains an express statement following the signature of the attorney on the certificate that he and his firm are “ATTORNEYS FOR SYNTHES SPINE COMPANY, L.P.” (Capitalization in original.)

Two weeks later, the same law firm and attorney filed a separate answer on behalf of defendant Synthes (U.S.A.) therein asserting that it “opens the [d]efault as a matter of right.” This pleading, signed by the same law firm, contains a statement that the firm and attorney are “ATTORNEYS FOR SYNTHES (U.S.A.) and SYNTHES SPINE COMPANY L.P.” (Capitalization in original.) This pleading on its face, which does not purport to amend the original answer of Synthes Spine Company, L.P, and which recognizes the default, further evidences that the original answer was only that of Synthes Spine Company, L.P. Moreover, in paragraph 15 of this pleading, Synthes (U.S.A.), contrary to the averment in paragraph 1 of the original answer, “admits that Synthes (U.S.A.) . . . manufactured the plate in question.” That same date, the same law firm filed a separate first amendment to the answer of defendant Synthes Spine Company, L.P. This pleading too is signed by the law firm and its attorney as “ATTORNEYS FOR SYNTHES SPINE COMPANY, L.P,” as is its accompanying certificate of service. (Capitalization in original.)

Approximately a month after the trial court entered its order denying the motion to enter default and holding that the first paragraph of the original answer could be “construed” as an answer on behalf of the other Synthes defendants as well as defendant Synthes Spine Company, L.P, three other Synthes defendants then filed a pleading to amend their purported answer. This pleading collectively identifies defendants Synthes, Inc., Synthes North America, Inc., and Synthes Ltd., U.S.A. as “the other Synthes defendants.” The pleading is filed by a different law firm and attorney and does not assert that it is a pleading of the defendant Synthes Spine Company, L.P. The record also reveals that by letter addressed to the counsel of plaintiff Linda McCombs, the counsel for Synthes Spine Company, L.P., stated: “However, you have named the correct entity, Synthes Spine Company, L.P. and thus we couched our answer on behalf of that entity.”

The standard of review as to this issue is not that of abuse of discretion. In Heath v. Peachtree &c. Hosp., 200 Ga. App. 118 (1) (407 SE2d 406) (1991) and Ouseley v. Foss, 188 Ga. App. 766, 768-769 (374 SE2d 534) (1988), this Court was required to address a trial court’s interpretation of a pleading and did not utilize an abuse of discretion standard. But cf. Howell v. Styles, 221 Ga. App. 781, 782 (1) (472 SE2d 548) (1996) (holding trial court did not abuse its discretion in failing to treat pro se defendant’s answer as a motion to dismiss or in failing to dismiss, sua sponte, the complaint). Questions of pleading construction and interpretation present issues of law. Moreover, the operative facts are undisputed; the wording of the pleadings speaks for itself. “[W]hen the operative facts are undisputed and the trial court merely applies a conclusion of law to these undisputed facts ... , an appellate court owes no particular deference to such legal conclusions.” Garcia v. State, 207 Ga. App. 653, 654 (1) (a) (428 SE2d 666) (1993) (determining legality of a search); see Gwinnett County v. Davis, 268 Ga. 653, 654 (492 SE2d 523) (1997) (no deference is owed to trial court in regard to a question of law). In any event, the trial court’s construction of paragraph 1 of the answer is clearly erroneous. It is unreasonable to examine one paragraph out of the multiparagraphed answer in isolation and conclude that it was intended to be the pleading of all Synthes defendants hut that the remainder of the answer was intended to be the answer of only defendant Synthes Spine Company, L.P. This is especially true where, as in this case, both the caption of the pleading and the signature block of counsel of record reveal that the pleading is filed on behalf of only one defendant and the substance of the pleading will harmonize in its totality only if the answer is interpreted as being only the answer of Synthes Spine Company, L.P. “Liberal construction of a pleading does not encompass the imputation or engrafting to a claim of a meaning not reasonably deductible or inferable from the explicit language of the pleading.” Rossville Fed. &c. Assn. v. Ins. Co. of North America, 121 Ga. App. 435, 439 (2) (b) (174 SE2d 204) (1970). The answer can only be reasonably construed as being the pleading of a sole defendant, Synthes Spine Company, L.P.

As the other three Synthes defendants are separate legal entities, they cannot benefit from the answer filed solely by Synthes Spine Company, L.P. And, having filed no answer of their own, Synthes, Inc., Synthes North America, Inc. and Synthes Ltd., U.S.A. were in default. See Jesup Carpet &c. v. Ken Carpets &c., 142 Ga. App. 301, 303 (1) (235 SE2d 684) (1977); see generally OCGA § 9-11-55 (a).

Accordingly, the judgment of the trial court dismissing Linda McCombs’ breach of warranty claims under state and federal law is affirmed. The judgment of the trial court denying the motion for entry of default is reversed and the case remanded for consideration of any pending motion to open default of Synthes, Inc., Synthes North America, Inc. and Synthes Ltd., U.S.A.

Judgments affirmed in part, reversed in part, and remanded with direction.

Pope, P. J., Beasley, Smith, and Ruffin, JJ, concur. Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur in part and dissent in part.

Andrews, Chief Judge,

concurring in part and dissenting in part.

I concur with the majority in Division 1 and in the standard of review to be applied. I dissent as to Division 2 in light of the following cases: Porquez v. Washington, 268 Ga. 649 (492 SE2d 665) (1997); Hewett v. Kalish, 264 Ga. 183 (442 SE2d 233) (1994); Gadd v. Wilson & Co., 262 Ga. 234 (416 SE2d 285) (1992); Harris v. Murray, 233 Ga. App. 661 (504 SE2d 736) (1998); Bala v. Powers Ferry Psychological Assoc., 225 Ga. App. 843 (491 SE2d 380) (1997); Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649 (481 SE2d 612) (1997); Vitner v. Miller, 223 Ga. App. 692 (479 SE2d 1) (1996); Lee v. Visiting Nurse Health System, 223 Ga. App. 305 (477 SE2d 445) (1996); Howard v. City of Columbus, 219 Ga. App. 569 (466 SE2d 51) (1995); Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995); Hutchinson v. Divorce & Custody Law Center, 215 Ga. App. 25 (449 SE2d 866) (1994); Fidelity Enterprises v. Beltran, 214 Ga. App. 205 (447 SE2d 150) (1994); Minster v. Pohl, 206 Ga. App. 617 (426 SE2d 204) (1992); Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (424 SE2d 632) (1992).

Judge Harold R. Banke,

concurring in part and dissenting in part.

I fully concur in division 1. But, because the analysis of the majority devolves into procedural quicksand for the three uninvolved Synthes defendants, and because I believe the trial court did not err in finding that the pleading at issue was an answer for those three defendants, I must dissent.

Although the spirit and intent of the Civil Practice Act require that pleadings be liberally construed in favor of the pleader, the majority ignores that imperative. Glisson v. Hosp. Auth. of Valdosta, 224 Ga. App. 649, 654 (1) (481 SE2d 612) (1997). Similarly, the majority disregards our well-established preference that cases be resolved on their merits rather than by default. Ewing v. Johnston, 175 Ga. App. 760, 764 (1) (334 SE2d 703) (1985); see Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 270 (1) (277 SE2d 276) (1981).

After holding that these three Synthes defendants failed to file any answer whatsoever, the majority remands this case for consideration of a motion to open default. In so doing, the majority seems to suggest that default would be unfair to these three defendants who apparently had nothing to do with the plaintiff’s injury. Pinned by an appellate determination that they completely failed to respond to McCombs’ complaint, it is inconceivable to me that these defendants could demonstrate the requisite grounds of “providential cause” or “excusable neglect” or “proper case” necessary to open default. OCGA § 9-11-55 (b). First Union Nat. Bank &c. v. Floyd, 198 Ga. App. 99, 101 (2) (400 SE2d 393) (1990) (broad ground of “proper case” does not vest court with discretion to open a default for reasons which fall short of a reasonable excuse for failure to answer).

Not only do I disagree with the majority’s result, but also I cannot embrace its analysis. We are bound to liberally construe pleadings to effectuate substantial justice. Having carefully studied the answer at issue in that light, notwithstanding its nomenclature and its confusing references to “Defendant,” “Defendant Synthes,” and to the other Synthes entities by name, I must agree with the trial court’s determination that at least part of it constituted a collective answer of the five Synthes entities. In view of the internal ambiguity in this pleading, I cannot agree that the trial court abused its discretion in determining that this pleading was an answer by the Synthes defendants within the meaning of the CPA. Howell v. Styles, 221 Ga. App. 781, 782 (1) (472 SE2d 548) (1996). See Mills v. Bing, 181 Ga. App. 475, 476 (1) (352 SE2d 798) (1987); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561 (239 SE2d 217) (1977) (pleading requirements to be construed liberally in favor of pleader). See Bosworth v. Cooney, 156 Ga. App. 274, 279 (2) (274 SE2d 604) (1980). See also Brown v. Brown, 217 Ga. App. 245, 246 (457 SE2d 215) (1995).

Moreover, in reaching its result, the majority relies upon subsequent pleadings of other parties and examines the identity of the law firms and attorneys involved in those pleadings. Yet, inexplicably, the majority cites no precedent which authorizes looking beyond the four corners of a pleading when construing it. I believe that the analysis of the sufficiency of an answer should be confined to that answer read in conjunction with the complaint. See Mills, 181 Ga. App. at 476 (1) (content of document determines whether it is a responsive pleading not the document’s nomenclature). See McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 515 (250 SE2d 424) (1978) (CPA does not penalize irrevocably a party for one misstep in pleading). See OCGA § 9-11-8 (f).

Since the objectives of the CPA are to encourage substantial justice and the resolution of controversies on their merits, it is difficult to imagine how these goals will be furthered by placing these three defendants into default with no guarantee that they can extricate themselves. For these reasons, I must respectfully dissent in part.

Decided July 16, 1998

Martin C. Jones, Sharon S. Whitwell, for appellant.

Alston & Bird, Dow N. Kirkpatrick II, Lori G. Baer, Angela T Burnette, Kilpatrick Stockton, Susan A. Cahoon, Alan R. Perry, Jr., for appellees.

       In various paragraphs, the answer alternately employs “Defendant,” “Defendant Synthes,” and “these Defendants,” and also makes separate references to “Synthes (U.S.A.),” “Synthes, Inc.,” “Synthes, North America, Inc.” as well as to “Synthes Spine Company, L.P.” Synthes Spine appears to denote itself as “Defendant” in paragraphs 1, 2, 7, 9, 11, 15, 39, 41, 42, 44, 45, and 46. Yet, inexplicably, “Defendant Synthes” is the respondent in paragraphs 14-38, 40, 43, 45, and 47. In any event, some paragraphs may be read as a joint answer.


author: Smith, Judge.

text:
    A98A0807.
    OAKES v. THE STATE.
    (505 SE2d 33)
   Smith, Judge.

Todd Oakes was indicted jointly with his brother Patrick on one count of making terroristic threats and two counts of entering an automobile. A jury trial was held, and Patrick pled guilty during the trial to one count of entering an automobile. At the close of the evidence, the trial court granted Todd Oakes’s motion for a directed verdict on the terroristic threats charge. A jury found him guilty of both remaining counts, and he brings this appeal. We affirm.

Construed to support the verdict, the evidence at trial showed that Oakes, Patrick, and Bobby Beal, a friend of Patrick’s, were riding in a car owned and driven by Oakes. Patrick was in the front passenger seat, and Beal was in the back seat. They stopped at the parking lot of a lodge next to the grounds of the Georgia Mountain Fair. Patrick left the car carrying a tire iron, smashed the window of a nearby Ford Explorer, and took a purse before returning to Oakes’s car. In the process, he lost a shoe which was later found near the Explorer. A camera was taken from an unlocked car parked nearby at about the same time. That car was not damaged, and the camera was found unharmed, discarded in a ditch beside the parking lot. Patrick denied entering that car and taking the camera.

Patrick admitted entering the Explorer, but both he and Oakes denied that Oakes had any prior knowledge that Patrick intended to commit the crime. Patrick testified that he asked Oakes to stop the car so he could relieve himself and Oakes stopped the car in the parking lot at the lodge. He explained that as he exited the car, Beal passed him a tire iron Beal had earlier removed from Oakes’s trunk through the back seat. Although Patrick left the car from the front passenger seat, he stated Oakes did not see the tire iron because he concealed it under baggy pants and a loose shirt. He testified he was gone no more than five minutes, during which time he ran to the fairgrounds lot, knocked the window out of the Ford Explorer with the tire iron, grabbed the purse, threw away the tire iron, and ran back to his brother’s car, with the purse tucked into his shirt. When he returned to his brother’s car, he took the purse and passed it to Beal in the back seat; Beal then removed the wallet and passed the purse back to Patrick.

According to both Patrick and Oakes, Oakes first noticed the purse, which Beal had apparently passed back to him, while driving away. He asked Patrick about it and instructed him to throw it out of the car. Oakes testified that when he noticed Patrick with the purse in his hand he “knew right then that he had stole it.” Later, Oakes noticed Beal “going through” the wallet that had been in the purse and told Beal to “get it the hell out of the car” as well,

1. Oakes raises the general grounds, arguing specifically that it was undisputed that he did not commit the crimes directly and that the evidence was insufficient to support his conviction as a party to the crimes because the crime of entering an automobile requires specific intent, which was not proved.

Oakes is correct that the crimes with which he was charged require specific intent. They are committed by entering “any automobile or other motor vehicle with the intent to commit a theft or a felony.” OCGA § 16-8-18. He is also correct that because he did not directly commit the crime, conviction as a party to the crime required a showing that he intentionally aided or abetted Patrick in its commission or that he intentionally advised, encouraged, hired, counseled, or procured Patrick to commit the crime. OCGA § 16-2-20 (b) (3), (4). He is incorrect, however, in his assertion that the required showing was not made under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“While mere presence at the scene of a crime is insufficient to show that a defendant is a party to the crime, criminal intent may be inferred from conduct before, during and after the commission of the crime.” (Citations omitted.) Gaskin v. State, 221 Ga. App. 142, 143 (470 SE2d 531) (1996). In this case, the jury could have concluded from a consideration of Oakes’s conduct before, during, and after the crime that he had a specific intent to take part in the crimes. Oakes was driving the car used as transportation to and from the scene of the crime. A witness testified that the car left the parking lot “pretty fast.” Moreover, given the close proximity in which the brothers found themselves both before and after the crimes, the jury could well have chosen to disbelieve the brothers’ testimony that Patrick was able to conceal both the tire iron and the purse from Oakes until after the crimes were committed and they had driven away.

Questions of witness credibility are completely within the province of the jury. Brannon v. State, 266 Ga. 667, 668 (469 SE2d 676) (1996). A “rational trier of fact can choose to reject even ‘undisputed’ testimony if that fact finder believes that witness’s testimony to be unreliable.” Tate v. State, 264 Ga. 53, 56, n. 5 (440 SE2d 646) (1994). The jury could have considered the witnesses’ demeanor, any contradictory or inconsistent statements, and any other circumstances inconsistent with truth. Id. It is apparent that the jury weighed the credibility of the witnesses and decided this issue against Oakes.

Decided July 13, 1998

Reconsideration denied July 30, 1998.

Murphy C. Miller, for appellant.

Albert F. Taylor, Jr., District Attorney, William W. Woody, Assistant District Attorney, for appellee.

On appeal, this Court does not weigh the credibility of witnesses. We must construe the evidence in the light most favorable to the jury’s verdict, and we decide only the legal sufficiency of the evidence. West v. State, 224 Ga. App. 190 (1) (480 SE2d 238) (1997). We conclude that the evidence presented was sufficient to support Oakes’s convictions under the standard set forth in Jackson v. Virginia.

2. Oakes also asserts that the evidence failed to exclude every other reasonable hypothesis except his guilt. His arguments in support of this enumeration are almost identical to those in support of his first enumeration, and we find them similarly without merit. The fáct that Oakes’s version of events was undisputed did not make it credible. See Tate, supra. A jury is not required to exclude every hypothesis other than guilt; it must consider only every other reasonable hypothesis. Martin v. State, 228 Ga. App. 59, 61 (1) (491 SE2d 142) (1997). As detailed above, the jury’s verdict simply reflects its dissatisfaction with the explanations given by Oakes and his brother. Id.

Judgment affirmed.

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


text:
    A98A1022.
    HARRELL v. THE STATE.
    (505 SE2d 68)
   Smith, Judge.

Billy Ray Harrell was found guilty by a jury of burglary. He appeals from the judgment of conviction and sentence entered thereon, contending in his sole enumeration of error that the trial court erred in requiring the jury to continue its deliberations after announcing a verdict. Because we find that the jury’s original published verdict was invalid, we find no error in the trial court’s instructing the jury to continue its deliberations. Finding no error, we affirm.

The trial transcript shows that after the jury informed the court it had reached a verdict, the jury was brought into the courtroom and the foreman confirmed that a verdict had been reached. Before publishing the verdict, the court gave the jury some general instructions about their duties after this case was concluded. The verdict was then announced as not guilty. As the court was bidding the jurors goodbye, the following transpired: “JURY FOREMAN: Your Honor? THE COURT: Yes, sir. JURY FOREMAN: You’re not going to ask us for a vote? THE COURT: If it was a unanimous vote. JURY FOREMAN: Well, it wasn’t. JURY MEMBER: It was not unanimous. THE COURT: It was not unanimous? JURY MEMBER: Eleven to one. THE COURT: Well, we do not have a verdict then. The verdict has to be — JURY MEMBER: We were told it had to be unanimous. THE COURT: The verdict has to be unanimous, yes. JURY FOREMAN: It wasn’t. THE COURT: You do not have a unanimous verdict? JURY MEMBER: No, we don’t. It was eleven to one. THE COURT: Okay. Well, y’all will need to recommence your deliberations, then. JURY FOREMAN: So it has to be unanimous one way or the other, Your Honor? THE COURT: For there to be a verdict. JURY FOREMAN: One way or the other. THE COURT: That’s right. One way or the other, there has to be a verdict — a unanimous decision by the jury in order for there to be a binding verdict.”

The Court then instructed the jury to continue deliberating until a verdict was reached. A short time thereafter, the jury again indicated that a verdict had been reached. When this verdict was published, it was a guilty verdict. The court polled the jury as a whole as to whether that was their verdict, and noted that all 12 jurors nodded affirmatively. The prosecutor, the clerk, and defense counsel all agreed.

Harrell contends the trial court erred in requiring the jury to deliberate further after announcing its first verdict because the verdict was in proper form, had been published, and neither party had requested that the jury be polled. We note that the record does not show that Harrell raised any objection below to the trial court’s procedure. But even assuming he has preserved this issue for review, we find no error.

Georgia permits a criminal defendant to waive the right to a unanimous verdict. Copeland v. State, 241 Ga. 370, 371 (4) (245 SE2d 642) (1978). But Harrell did not do so. A unanimous verdict was therefore necessary, and upon revelation that the jury’s original verdict was less than unanimous, the trial court correctly concluded that the jury’s work was incomplete. In Jackson v. State, 177 Ga. App. 863 (341 SE2d 324) (1986), this Court held that under remarkably similar factual circumstances, the trial court had not erred in acting in similar fashion.

Decided July 30, 1998.

M. E. Thompson, Jr., for appellant.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Contrary to Harrell’s contention, for which he cites no pertinent authority, requiring the jury to deliberate until it reached a unanimous verdict in this case did not constitute double jeopardy. We find no error.

Judgment affirmed.

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


text:
    A98A1105.
    WILSON v. THE STATE.
    (505 SE2d 774)
   Smith, Judge.

William Chad Wilson was indicted by a Ware County grand jury on one count of theft by taking, OCGA § 16-8-2, one count of burglary, OCGA § 16-7-1 (a), one count of fleeing and attempting to elude a police vehicle, OCGA § 40-6-395 (a), two counts of felony obstruction of a police officer, OCGA § 16-10-24 (b), and two counts of aggravated assault on a police officer, OCGA § 16-5-21 (c). A jury acquitted him of aggravated assault but found him guilty of all other charges. Wilson’s motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Wilson asserts the general grounds. Construed to support the jury’s verdict, the evidence shows that the owner of a used car lot positively identified Wilson as the man who entered her business and took a car without permission. Wilson testified and contradicted this testimony, contending he had permission to “test drive” the car, but later abandoned it because he was “paranoid” as the result of crack cocaine and marijuana use. We do not re-weigh the evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence is sufficient to enable any rational trier of fact to find Wilson guilty of the crime charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990), aff’d, 261 Ga. 311 (404 SE2d 787) (1991). The jury was authorized to disbelieve Wilson’s testimony in favor of the victim’s, particularly since Wilson drove the vehicle over 100 miles from Waycross to Twin City, Georgia. He also made a statement to police admitting he took the car in order to visit his girlfriend in Twin City. See Bell v. State, 220 Ga. App. 293 (469 SE2d 714) (1996).

The evidence also shows that a business in Ware County was burglarized and three checkbooks taken. After the burglary, checks from the accounts began returning to the owner made out to Wilson and to his girlfriend. Wilson also acknowledged in his statement to police that he broke into the business to look for checks to support his drug habit and took three sets of checks. Wilson disavowed his statement to the police at trial, claiming that an acquaintance named “Alex” took the checks and that he and his girlfriend only advised and assisted Alex in passing the checks. As with the burglary charge, however, the jury was authorized to disbelieve this testimony.

Finally, several police officers testified that Wilson ran one patrol car off the road into a ditch and rammed a second patrol car during an extended high-speed chase at speeds of over 100 mph. After the police shot out two of Wilson’s car tires, he refused to obey the officers’ orders to exit the car and get on the ground, struggling with them until subdued by a police dog.

OCGA § 16-10-24 (b) provides that one who “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his duties by offering or doing a violence to the person of such officer ... is guilty of a felony.” The offense of felony obstruction is “meant to cover obstruction of law enforcement officers in general by the use of violence, threat of violence, or other unlawful means.” (Citations and punctuation omitted.) Pearson v. State, 224 Ga. App. 467, 468 (480 SE2d 911) (1997). The use of a motor vehicle to ram another vehicle or run it off the road obviously constitutes violence or the threat of violence. Wilson contended he inadvertently “had a little contact” with one patrol car and never saw the second car beside him. But the officer who was struck from behind testified that Wilson “was not braking at all” when he rammed the patrol car. Another officer testified that Wilson knew an officer was in front of him, made eye contact with the officers involved in the chase, and had full control of his vehicle when he ran the second patrol car off the road. Moreover, the entire incident was recorded on a patrol car’s video camera and played for the jury. Once again, this was a disputed issue of fact which was resolved against Wilson.

We conclude that the evidence was sufficient to enable a rational finder of fact to conclude that Wilson was guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wilson contends that the trial court erred in denying his motion to sever the burglary charge from the motor vehicle theft charge. “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.” (Citation and punctuation omitted.) Weaver v. State, 206 Ga. App. 560, 561 (426 SE2d 41) (1992). When evidence of both offenses is admissible as part of the circumstances of the defendant’s arrest, the trial court does not err in refusing to sever the offenses for trial. Id. Here, warrants were issued against Wilson on the charges of burglary and theft by taking approximately one month before his arrest. A police officer recognized Wilson driving a stolen car and knew of the outstanding warrants against him; the officer’s attempt to stop Wilson led to the high-speed chase and Wilson’s arrest. Moreover, the burglary charge was based in part upon the stolen checkbooks found in Wilson’s car after the high-speed chase. All this evidence was admissible as part of the circumstances of Wilson’s arrest, Paschal v. State, 181 Ga. App. 794, 795 (3) (354 SE2d 5) (1987), and the trial court did not abuse its discretion in denying the motion for severance.

Decided July 30, 1998.

John D. Staggs, Edward F. Smith, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A1132.
    In re J. S. G., a child.
    (505 SE2d 70)
   Smith, Judge.

David Howard Earwood appeals from the trial court’s order denying his petition for adoption. Upon review, we conclude that the trial court construed OCGA § 19-8-3 (c) too narrowly and that the petition should have been granted. We therefore reverse the judgment below.

The record shows that J. S. G. is the natural child of John Edward Gillespie and Gregg Hoglen. Earwood later married Hoglen, and during that marriage he established a parental relationship with his stepson, J. S. G. Earwood and Hoglen divorced before this adoption was initiated, and Earwood subsequently remarried. Earwood then filed a petition to adopt his former stepson, with whom he retained a close relationship even after divorcing J. S. G.’s mother. Hoglen acknowledged service and consented to the adoption, and Gillespie, the biological father, surrendered his parental rights and agreed to the adoption.

The trial court recognized that “a strong familial bond was established between” Earwood and J. S. G., that Earwood was continuing to provide both monetary and emotional support for J. S. G., and that they had “a sound, caring father-son relationship.” The court found, however, that OCGA § 19-8-3, which governs the subject of who may adopt a child, presented an insurmountable obstacle to the grant of Earwood’s petition for adoption.

OCGA § 19-8-3 (c) provides that when “a person seeking to adopt a child is married, the petition must be filed in the name of both spouses; provided, however, that, when the child is the stepchild of the party seeking to adopt, the petition shall be filed by the stepparent alone.” Reasoning that the petition could not be filed in the names of both Earwood and his wife because J. S. G. had a natural mother, Hoglen, and that the exception provided in subsection (c) for a “stepchild” did not apply because Earwood was no longer the stepfather of J. S. G, the trial court found that the requirements in OCGA § 19-8-3 could not be met.

We agree that the petition could not be filed in the names of both Earwood and his current spouse. We conclude, however, that the trial court construed the stepparent exception set forth in OCGA § 19-8-3 (c) too narrowly. We find that in this case, on these unusual facts, such a narrow construction should not have been applied to deny this adoption.

The trial court reasoned that OCGA § 19-8-3 (c) excepts only stepparent adoptions and pursuant to OCGA § 19-8-6 (a) (1), “the petitioner in a stepparent adoption must be the spouse of one of the natural parents of the minor child.” But OCGA § 19-8-3 (c), which creates the exception, does not refer to OCGA § 19-8-6 (a). It simply provides that the petition may be filed without joining a spouse “when the child is the stepchild of the party seeking to adopt.” Earwood’s petition for adoption may be granted, therefore, if J. S. G. is his “stepchild.”

The terms “stepchild” and “stepparent” or “stepfather” are not defined in our Code. Neither have we found any case law defining these terms. We are required to give the term “stepchild” in the statute its “ordinary signification.” OCGA § 1-3-1 (b). Black’s Law Dictionary 1413 (6th ed. 1990) defines “step-father” as “[t]he husband of one’s mother by virtue of a marriage subsequent to that of which the person spoken of is the offspring.” Webster’s New Universal Unabridged Dictionary 1784 (2nd ed. 1983) defines “stepparent” as “the person who has married one’s parent after the death or divorce of the other parent.” Neither definition includes a temporal restriction. And Earwood did marry J. S. G.’s mother subsequent to the dissolution of the union of which J. S. G. is the issue; he was the husband of J. S. G.’s mother at one point. We conclude, therefore, that the exception embodied in OCGA § 19-8-3 (c) may be applied to this situation, specifically allowing Earwood to petition for the adoption of J. S. G. without joining his current spouse.

Decided July 30, 1998.

James T. Irvin, for appellant.

John E. Gillespie, pro se.

While we recognize the trial court’s careful and well intentioned construction of the statute, under these circumstances we must reject it. Had Earwood petitioned the court to adopt J. S. G during his marriage to Hoglen, the adoption unquestionably would have been granted. And the trial court found that this adoption, even now, would be in the best interest of J. S. G. It cannot be better for any of the parties to force the man who has not supported or cared for J. S. G. and has willingly surrendered his parental rights to remain J. S. G.’s legal father, while denying the status of legal father to the man who has been a father to the child in fact and wishes to continue to do so. That would epitomize the elevation of form over substance, which we decline to do.

Judgment reversed.

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


author: Ruffin, Judge.

text:
    A98A1169, A98A1170.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al. v. FROST; and vice versa.
    (505 SE2d 236)
   Ruffin, Judge.

Thomas Lamar Frost, Jr., as administrator and next friend of his son Thomas Lamar Frost III, sued Dr. Francis Tedesco in his official capacity as the president of the Medical College of Georgia, and the Board of Regents of the University System of Georgia d/b/a the Medical College of Georgia (“Board of Regents”), claiming that the defendants’ negligence caused his son’s death. In Case No. A98A1169, the defendants appeal from the trial court’s denial of their motion to dismiss the action. In Case No. A98A1170, Frost appeals from the trial court’s setting aside of a default judgment entered against the defendants. For reasons which follow, we reverse with direction.

The underlying facts are as follows. On April 7,1995, Frost’s son, Thomas, sought treatment from Dr. Yogesh Pareek, a psychiatrist at the Medical College of Georgia’s out-patient clinic. Dr. Pareek diagnosed Thomas with major depression. Thomas returned to Dr. Pareek on April 10, 1995 for a scheduled session. Thomas advised Dr. Pareek that he had nothing to live for, and he asked the doctor about the best way to die. Thomas warned Dr. Pareek during the session that if the doctor attempted to commit him, he would run to his car where he kept a gun and shoot himself. Dr. Pareek left the room to notify public safety officials and to complete forms committing Thomas to Georgia Regional Hospital. While Dr. Pareek was absent from the room, Thomas left, went to his car, and shot himself.

On April 10, 1997, Frost sued Dr. Tedesco in his official capacity and the Board of Regents. Frost perfected service on the Board of Regents and Dr. Tedesco, but failed to provide the requisite notice to the Department of Administrative Services (“DOAS”) in accordance with OCGA § 50-21-26. After the defendants failed to file a timely answer to the suit, the trial court granted Frost a default judgment. The defendants moved to set aside the default judgment and to dismiss the action, highlighting Frost’s failure to properly notify DOAS. The trial court granted the motion to set aside the default judgment, denied the motion to dismiss, and certified the case for immediate review by this Court.

In Case No. A98A1169, the defendants assert that the superior court erred in denying their motion to dismiss since Frost failed to provide the ante-litem notice to the DOAS as required by OCGA § 50-21-26 and that Dr. Tedesco is immune from suit.

In Case No. A98A1170, Frost asserts, inter alia, that the trial court erred in setting aside the default judgment since the ante-litem notice to DOAS was not required. In support of this assertion Frost relies in part on the Supreme Court of Georgia’s decision in Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997).

Case No. A98A1169

1. We first conclude that Dr. Tedesco is immune from suit. OCGA § 50-21-25 (a) provides in part that “[t]his article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her duties or employment is not subject to lawsuit of liability therefor.” Moreover, “[a] person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission . . ., the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” OCGA § 50-21-25 (b). Because Dr. Tedesco, a state officer working for the Board of Regents d/b/a the Medical College of Georgia, a state agency, was sued only in his official capacity, he is entitled to immunity. OCGA § 50-21-25. Accordingly, the trial court erred in not dismissing Frost’s suit against him.

Furthermore, we note that Keenan is inapplicable. Keenan involved a physician, a faculty member at the Medical College of Georgia, who operated on a private-pay patient at the medical college hospital. The surgery resulted in brain damage to the patient, for which the patient’s husband sued the physician. The Supreme Court ruled that the physician was not acting within the course of his official duties as a state employee in treating the patient because the duties he was alleged to have violated were independent of his duties as a professor at the Medical College. Id. at 793. Accordingly, the physician was not shielded from liability by the provisions of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. Id.

While Frost attempts to apply Keenan here, the court limited the scope of Keenan by stating that “[b]ecause this case involves the exercise of . . . medical discretion on a private-pay patient that was not controlled by the government employer or by statute, we do not consider whether immunity is appropriate for state-employed physicians who are required to treat particular patients, or who are alleged to have violated governmental, as opposed to medical, responsibilities, or whose medical discretion is controlled or impacted by governmental standards or constraints.” Id. at 796, n. 17.

In the instant case, Frost sued Dr. Tedesco in his official capacity as the president of the Medical College. Frost never claimed that Dr. Tedesco treated Thomas as a private-pay patient and is therefore liable for his negligent treatment. As well, there is no evidence of record to show that Dr. Tedesco in any way assisted in Thomas’ psychiatric care. Clearly, Frost sued Dr. Tedesco for violations of his governmental duties as the president of the Medical College, rather than for any violation of his medical responsibilities. See id. Accordingly, Keenan is not controlling.

2. As it is clear that the Tort Claims Act applied in this case, Frost was required to comply with OCGA § 50-21-26 (a), which sets forth that “[n]o person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claims as follows: (1) [njotice of a claim shall be given in writing within 12 months of the date the loss was discovered ... (2) [njotice of a claim shall be given in writing and shall be mailed by certified mail... or delivered personally to . . . the Risk Management Division of the Department of Administrative Services.” Moreover, “[njo action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in [OCGA § 50-21-26 (a)].” OCGA § 50-21-26 (a) (3). See also Howard v. State of Ga., 226 Ga. App. 543 (1) (487 SE2d 112) (1997). Here, Frost failed to provide the requisite ante-litem notice, and accordingly, the trial court had no jurisdiction over Frost’s suit against the Board of Regents and Dr. Tedesco. Howard, supra; OCGA § 50-21-26 (a). Because the trial court had no jurisdiction over the action, it erred in denying the defendants’ motion to dismiss.

Decided July 30, 1998

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Dep uty Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Jennifer D. Roorback, Assistant Attorney General, for appellants.

Case No. A98A1170

On appeal, “[a] trial court’s ruling on a motion to set aside a judgment will be affirmed if there is any evidence to support it.” Hoesch America v. Dai Yang Metal Co., 217 Ga. App. 845, 849 (3) (459 SE2d 187) (1995).

As we have already concluded, Frost failed to provide the antelitem notice as required by the Tort Claims Act, so the trial court had no jurisdiction over Frost’s suit against the defendants. And, therefore, the trial court was without authority to grant either the default judgment or the motion to set aside the default judgment. Accordingly, the trial court’s order granting the motion to set aside the default judgment is void and a nullity. See Cabell v. State, 221 Ga. App. 192 (471 SE2d 222) (1996); Crotty v. Crotty, 219 Ga. App. 408 (465 SE2d 517) (1995); Borden, Inc. v. Holland, 212 Ga. App. 820, 822 (1) (442 SE2d 916) (1994). Inasmuch as the order granting the motion to set aside is void, the trial court’s judgment is reversed, and upon remand of this case the trial court is directed to vacate the order and dismiss the action for lack of jurisdiction. See Cabell, supra.

It is unnecessary to address Frost’s and the defendants’ other claims on appeal as the above analysis is dispositive of both appeals.

Judgment reversed with direction.

Pope, P J., and Beasley, J., concur.

Samuel W. Cruse, for appellee.

       Frost also sued his son’s psychiatrist, Dr. Yogesh Pareek, but never served Dr. Pareek with notice of the suit and ultimately abandoned his claim against the psychiatrist. Accordingly, Dr. Pareek is not a party to this appeal.