author: Beasley, Chief Judge. Birdsong, Presiding Judge,

text:
    A96A1584.
    JORDAN v. JOHNSON.
    (479 SE2d 175)
   Beasley, Chief Judge.

Jordan appeals from the denial of her motion for new trial, in this personal injury case arising from an automobile collision, on the grounds that Johnson violated the court’s order on a motion in limine and that the testimony elicited in response to Johnson’s violation went to the ultimate issue of negligence.

Jordan submitted a written motion which apparently was addressed in chambers before trial without the court’s order recorded. The motion sought an order “that there be no evidence offered or alluded to concerning the purported cause of the subject incident as noted by the investigating officer in the subject accident report... or the fact that plaintiff/defendant was cited as a contributing factor to the accident.” After trial, the court entered an order stating the motion “was in effect” and that there was no objection to it by defendant.

On direct examination of the investigating officer, plaintiff Jordan elicited the officer’s testimony as to what each party told her about how the collision occurred. On cross-examination, Johnson asked the officer whether, from information gained at the scene, she was “able to confirm or deny either Ms. Jordan’s story or Mr. Johnson’s story.” She answered, “No sir.” Johnson then asked: “Were you able to make any determination as to who caused this accident?” To this she gave the same answer. The court’s post-trial order stating the plaintiff’s motion was “in effect” does not state that these questions or answers exceeded any limitation.

Jordan has supplied this Court with only an excerpt of that portion of the transcript showing the direct and cross-examination of the investigating officer. An appellant may choose to have only a portion of the record below transmitted to this Court.’ OCGA §§ 5-6-37, 5-6-41; see Drummond v. Gladson, 219 Ga. App. 521, 524 (2) (465 SE2d 687) (1995) (Beasley, C. J., concurring specially). This does not relieve an appellant from the obligation to demonstrate error by the record. See White v. Arthur Enterprises, 219 Ga. App. 124, 125 (2) (464 SE2d 225) (1995); Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 167 (4) (464 SE2d 259) (1995). One who complains that the opposing party violated a court’s order on a motion in limine must show that the court ruled so as to limit the evidence in the particulars claimed. See Bentley v. B. M. W., Inc., 209 Ga. App. 526, 527-528 (1) (433 SE2d 719) (1993); Arnold v. Arnold, 197 Ga. App. 103, 106 (2) (397 SE2d 724) (1990). It is also the appellant’s responsibility to show, as in appeals based upon other occurrences, that the violation of a motion in limine was harmful. See Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (1) (345 SE2d 56) (1986); Frink v. State, 177 Ga. App. 604, 607 (1) (340 SE2d 631) (1986).

Jordan has not demonstrated that the questioning violated any limits the court imposed in response to the motion. The court’s contemporaneous order on the motion, if one exists, is not included in the record. The post-trial declaration that the motion was “in effect” does not state the court rendered any order and suggests there may have been none; the matter was “discussed” and the defense made “no objection.” If there was a court ruling on the motion in limine, the post-trial order does not reveal what that may have been. Nor does the post-trial order indicate in any way that the questions complained of violated any previous ruling. Rather, as the court denied Jordan’s motion for new trial in which she raised the alleged violation of the motion in limine, it appears the court did not find the questioning violated its order or that, if it did, the improper question or questions, which elicited no harmful evidence, did not prejudice plaintiff so as to require a new trial.

If we must judge the matter solely by the request in the motion, the questioning did not offend the motion; there was no questioning about any cause noted on the accident report or any citation given to Jordan. There is no indication that the accident report itself was placed in evidence and the record does not show that the questioning exceeded a court-ordered boundary.

Nor is there any indication the testimony elicited was harmful. It in no way suggested that Jordan was at fault. Although she argues it was harmful because it left the jury with “no other reasonable deduction but to conclude that either both parties were equally at fault or that neither party was at fault,” that is not the case. The only reasonable inference is that the officer had nothing to say on the matter of fault; the jury was left to decide the issue on all the other evidence.

An investigating officer is permitted to testify as to what she observes at an accident scene and give an opinion based upon that evidence about how the collision occurred but not about which party was at fault. Emory v. Dobson, 206 Ga. App. 482, 483-484 (426 SE2d 50) (1992). Here the officer’s responses merely revealed that she had not formed any opinion about how the collision occurred, or as to which party caused the collision. The questions and answers did not invade the jury’s role ih deciding the ultimate issue.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J, concur specially.

Birdsong, Presiding Judge,

concurring specially.

I agree with the holding of the majority regarding appellant’s failure to establish affirmatively by the appellate record that there occurred a specific violation of the motion in limine order so prejudicial as to result in reversible error and with the majority’s ultimate disposition of this case. Because appellant failed to establish such a violation affirmatively by the record there exists nothing for this Court to review. However, I am compelled to write separately to emphasize and clarify that, under our precedent, appellant did not have to object following the alleged motion in limine violation in order to preserve such issue for appellate review.

“A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. [Cit.] By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. [Cit.] In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” (Emphasis supplied.) Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817). There also exists another “absolute,” regarding the basis for the employment of and granting of a motion in limine. As recognized in Reno v. Reno, 249 Ga. 855 (295 SE2d 94), “ ‘ “[t]he purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach.” ’ ” Id. at 855-856. Recognizing the seriousness of this second absolute, the Supreme Court astutely held: “The reasoning of Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (1) (260 SE2d 20)] applies also where a motion in limine to suppress evidence is granted. To hold otherwise, and require the successful movant to object when evidence encompassed by the motion in limine is nevertheless offered at trial, would defeat the purpose of the motion in limine, as the movant would be forced, in the presence of the jury, to call special attention to prejudicial evidence which the trial court had previously ordered to be excluded from the jury’s consideration.” (Emphasis supplied.) Reno, supra at 856.

While it is true that in Reno, the husband’s attorney moved for a mistrial at the next scheduled recess, nothing in the Supreme Court’s holding in Reno is predicated expressly on this fact. Moreover, the issue granted and addressed in Reno, supra at 855, was cast as follows: “The issue before this Court ... is whether, after a motion in limine to exclude certain evidence is granted, the movant must object to a subsequent offer of evidence allegedly encompassed by the preliminary ruling in order to preserve the alleged error for appellate review. For the following reasons, we conclude that the answer is no.” Thereafter in its analysis of this stated issue, the Supreme Court does not again mention (let alone discuss any significance of) the fact that a belated mistrial motion had been made when the jury finally recessed. From a close reading of Reno, supra, it can only be concluded that the making of the mistrial motion during a subsequent recess was not a relevant factor in’the Supreme Court’s ruling; in fact, the engrafting of such a requirement would run contrary to the express holding in the case. Moreover, it is well established that questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529); Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152).

As recognized in Reno, a grave danger exists to the fair trial rights of the parties to compel the raising of an objection or mistrial motion in the presence of the jury as to matters in which a motion in limine properly has been granted. Reno, supra at 856. Clearly, therefore, no immediate objection to a motion in limine violation should be required in the jurors’ presence. Nor should the holding of Reno be circumvented by engrafting a rule that an objection to a motion in limine violation must be raised later in the proceedings when the jury is not present. Such a strained interpretation would run contrary not only to the plain language of Reno but to the basic philosophy of this Court and the Supreme Court that objections and mistrial motions, when required, should be timely made. To allow a party to wait, perhaps for several hours before the jury conveniently recesses or otherwise withdraws from the courtroom, before posing an objection or moving for mistrial is fraught with difficulty. First, such a delay frequently will cause the parties to experience difficulty in remembering what was said in the jurors’ presence and may necessitate the time-consuming procedure of searching for and reading back salient portions of the reporter’s notes. Secondly, in certain circumstances, the corrective action to be taken may include striking the matter and a curative instruction to the jury, which when belatedly made would cause even far greater “special attention” to be called to the matter under consideration. Thirdly, but equally important, appellate courts have held, in other types of cases, that a mistrial motion is waived if not immediately entered on the record when the prejudicial event occurs. See generally Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841); Anderson v. State, 199 Ga. App. 559 (2) (405 SE2d 558) (several questions later); Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (two questions later); Kent v. Hunt & Assoc., 165 Ga. App. 169, 171 (8) (299 SE2d 123). Further, only recently our Supreme Court strengthened the “contemporaneous objection rule” — a rule which “has long been a mainstay of Georgia trial practice” — by severely limiting the scope of exceptions thereto. Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722). The appellate issue was preserved in Reno not because a belated mistrial motion was tendered but because no objection was needed at all to preserve the error generated by a violation of the order granting the motion in limine.

Recognizing the interrelationship of the above factors and the limited but unique purpose for which a motion in ‘limine should be granted, a panel of this Court in Seay v. Urban Medical Hosp., 172 Ga. App. 344, 345 (3) (323 SE2d 190), interpreted the Supreme Court’s holding in Reno, supra, and concluded: “No objection or motion was made to this answer, but none is required when a motion in limine has been granted to preserve the issue for appellate review.” The holding in Seay was followed in Scott v. Chapman, 203 Ga. App. 58 (416 SE2d 111). In Scott, supra at 59 (1), it was held: “It is clear from the record that appellees’ counsel violated the trial court’s order on appellant’s motion in limine. Although no objection was made to the question and answer, when a motion in limine has been granted no further objection is required to preserve the issue for appellate review.” Compare General Motors Corp. v. Moseley, 213 Ga. App. 875, 877 (1) (447 SE2d 302), citing both Reno, supra, and Scott, supra, with favor and acknowledging that “where the trial court’s ruling on a motion in limine, is violated, further objection at trial is unnecessary to preserve the matter for appellate review.” Thus, the rule announced in Reno, supra, has been subject to consistent construction in at least three prior cases by panels of this Court.

Additionally, the actual holding in Reno, as reflected in the plain words of its text and in its progeny cases, Seay, supra, and Scott, supra, is consistent with the basic rule announced in State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543). Johnston, supra at 415 (3) held that if, after a motion in limine is made, “the trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar ‘to a preliminary ruling on evidence at a pretrial conference’ and it ‘ “controls the subsequent course of action, unless modified at trial to prevent manifest injustice.” ’ ” See generally CSX Transp. v. Levant, 200 Ga. App. 856, 865 (2) (410 SE2d 299) (dissenting opinion), rev’d on other grounds, 262 Ga. 313 (417 SE2d 320). The order granting a motion in limine, “like a pretrial order, ‘controls the subsequent course of the action, unless modified at trial to prevent manifest injustice.’ . . . All the purposes of an objection have already been fulfilled by the proceedings on the motion in limine. . . . [A]nd the record has been perfected for appeal purposes. Therefore, [there exists] no reason for another objection at trial in order to preserve the denial of the motion on appeal.” Harley-Davidson, supra at 286 (1). Although appellant failed to interpose any objection following the alleged motion in limine violation, such failure did not cause the issue to be waived on appeal. Rather, the issue need not be addressed because of appellant’s unrelated failure on appeal to show affirmatively by the record that a motion in limine violation in fact had occurred at trial.

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

Decided December 5, 1996.

Robert M. Margeson III, for appellant.

Simpson, Gray & Cross, Joseph B. Gray, Jr., for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A96A0968.
    GAINESVILLE ASPHALT, INC. v. MERRITT CONTRACTING, INC.
    (479 SE2d 359)
   Birdsong, Presiding Judge.

These are the remains of a construction project gone bad. The parties on appeal are the contractor, Gainesville Asphalt, Inc. (appellant), and subcontractor, Merritt Contracting Company, Inc. (appellee). The construction contract was entered in September 1990 with the owner, Road Atlanta Technologies, Inc. Construction commenced and was mostly completed by November 1990. In November 1990, the owner wrote a progress payment check to Gainesville Asphalt for $250,249.50. In reliance thereon, on the same day Gainesville Asphalt wrote a check to Merritt for $247,957.80. The owner’s check to Gainesville Asphalt bounced, but Gainesville Asphalt’s check to Merritt did not bounce. The owner defaulted, and in May 1991 the City of Gainesville entered a contract with Gainesville Asphalt and Merritt providing for advancement of funds to complete the project. Gainesville Asphalt and Merritt were sued by the City of Gainesville for declaratory relief as to the money Gainesville Asphalt won from the original owner and its principals.

At issue in this appeal is the effect of the contract entered by the parties after the owner defaulted and after Gainesville Asphalt sued the owner. The May 1991 contract was entered to induce Gainesville Asphalt and Merritt to complete the project in return for loans from the City. The contract provides for repayment of the loans, gives the City a percentage interest in Gainesville Asphalt’s recovery from the owner, and gives Merritt an 11.5 percent share of such recovery under $500,000. Gainesville Asphalt won a consent judgment against Road Atlanta and its principals for more than $600,000 but recovered only $245,515. The City sued Gainesville Asphalt and Merritt for declaratory relief under the May 1991 contract. Merritt filed a cross-claim against Gainesville Asphalt for sums due under that contract, attaching a letter from Gainesville Asphalt’s attorney saying: “[The reason Gainesville Asphalt] has not paid [Merritt] any percentages of [Gainesville Asphalt’s recovery from Road Atlanta] should be no mystery to anybody. [Gainesville Asphalt paid Merritt] in late 1990 based on the bad check [Gainesville Asphalt] got from [Road Atlanta]; that started this whole mess. That, plus what [Merritt] got from the City, just about took care of [Merritt. If Merritt returns the $247,957.80, Gainesville Asphalt] will immediately pay the percentages to [Merritt]. . . . [Gainesville Asphalt] doesn’t intend to pay [Merritt] anything until [Gainesville Asphalt] recovers the [$247,957.80 it paid to Merritt in November 1990].”

Gainesville Asphalt filed a cross-claim against Merritt asserting that its original contract required Gainesville Asphalt to pay Merritt “when paid,” that is, “within ten (10) days after receipt by Gainesville Asphalt, Inc. of payments from [the owner]” and that since Gaines-ville Asphalt was never paid, Merritt was not entitled to be paid. Merritt says Gainesville Asphalt never raised such a claim and any such claim was novated by the May 1991 contract, which gave Merritt a percentage (without set-off) of Gainesville Asphalt’s recovery from Road Atlanta and made no mention of Road Atlanta’s bad check. Further, according to Merritt, no claim was made then by Gainesville Asphalt that Merritt should repay money paid by Gaines-ville Asphalt in reliance on the owner’s bad check or that Merritt was not entitled to that money.

The trial court gave judgment to both Gainesville Asphalt and Merritt Contracting on their cross-claims, resulting in a net judgment in favor of Gainesville Asphalt and against Merritt in the amount of $224,611.08. Merritt filed a motion for a new trial, saying that since the May 1991 contract gave Merritt 11.5 percent of Gainesville Asphalt’s recovery from the owner and did not mention the November 1990 progress payment to Merritt which Gainesville Asphalt now says it has a right to recoup, the May 1991 contract extinguished any claim of Gainesville Asphalt to the payment. The trial court granted Merritt’s motion for new trial. A jury awarded $13,346.72 to Merritt and nothing to Gainesville Asphalt.

Gainesville Asphalt argues that if Merritt keeps this payment and recovers a percentage under the May 1991 agreement, it will be paid twice.

On appeal, Gainesville Asphalt contends the trial court could not grant a new trial after a non-jury trial or set aside its own judgment; and that the trial court gave an improper verdict form to the jury, erroneously charged on accord and satisfaction, wrongly admitted evidence of other transactions between the parties, failed to charge that an ambiguous contract is construed most strongly against the drafter, and wrongly denied Gainesville Asphalt’s motions for summary judgment and new trial. Held,-.

1. The trial court did not err procedurally in declaring a new (jury) trial after giving a judgment following a non-jury trial. Gaines-ville Asphalt contends the trial court’s original judgment was a judgment of law only, that it was purely a legal conclusion and that there were no factual questions decided therein, and that it therefore was not subject to the grant of new trial. See O’Neal v. Winn-Dixie of Atlanta, 195 Ga. App. 409 (393 SE2d 473); Sunn v. Mercury Marine, 166 Ga. App. 567 (305 SE2d 6); Sands v. Lamar Properties, 159 Ga. App. 718 (285 SE2d 24); see also OCGA § 9-11-60 (d); First Baptist Church &c. v. King, 208 Ga. App. 250, 251 (430 SE2d 635). We disagree. As shown below, the trial court’s original judgment involved findings of fact; it was based upon evidence and not solely upon a legal question. The trial court’s retraction of its original judgment and its decision to submit the case to the jury is proof of that fact and was proper. See Sunn, supra.

2. In view of our holding in Division 3, the remainder of Gaines-ville Asphalt’s enumerations of error are without merit. There was no ambiguity in the contract terms, as held in Division 3, and therefore a charge that a contract is construed most strongly against the drafter was not authorized. See Hunsinger v. Lockheed Corp., 192 Ga. App. 781, 784 (1) (386 SE2d 537). Even if there was no evidence of accord and satisfaction to authorize such a jury charge, the charge was harmless error in view of the fact that the jury’s finding was the only reasonable finding under the evidence (see Division 3 hereinafter) and the charge therefore could not have affected the verdict. See Davis v. Davis, 211 Ga. 714, 716 (88 SE2d 377); Davenport Bros. v. Pepper, 108 Ga. App. 372, 373 (133 SE2d 54). Further, appellant has no grounds to complain of the verdict form, since that form worked to appellant’s benefit. The admission of evidence that Gaines-ville Asphalt might have owed Merritt some money in other transactions was not harmful error, because the only reasonable conclusion in this case, based on the contract and other competent evidence, is that if Gainesville Asphalt intended to claim a set-off on the 11.5 percent it agreed to pay Merritt in the May 1991 contract, it would have so stated in the contract.

3. In November 1990, the check paid by the owner to Gainesville Asphalt was dishonored although the check paid by Gainesville Asphalt to the subcontractor was not. Gainesville Asphalt’s principal had to cover that check, and Gainesville Asphalt sued the owner on account of that bad check and on account of the owner’s general default on the project. The May 1991 contract entered into by the parties for completion of the project specifically and in great detail set forth the parties’ anticipated sharing of any recovery by Gaines-ville Asphalt against the defaulted owner. The contracts, the record and the evidence show that the contractual relations and financial arrangements between Gainesville Asphalt and Merritt Contracting, and, later, the City of Gainesville and a bank, were complex. Neither party makes it absolutely clear on appeal whether Merritt Contracting was in fact “paid twice” by the jury’s award to Merritt of an amount within the 11.5 percent to which Merritt was entitled by the May 1991 contract and by the jury’s refusal to award Gainesville Asphalt anything for the $247,957.80 it advanced Merritt in misplaced reliance on the owner’s check. In any case, neither party makes it clear whether Gainesville Asphalt even protested to anybody before the May 1991 contract was entered that it expected a set-off or recoupment of any kind for the amount of that bad check. There is therefore no basis to assume that Merritt was “paid twice,” or if it was, that the scheme giving Merritt a percentage of Gainesville Asphalt’s recovery against Road Atlanta as written into the May 1991 contract was not accepted by both parties as the full resolution to such problem.

Gainesville Asphalt contends Merritt was not entitled to keep the $247,957.80 which Gainesville Asphalt paid Merritt in November 1990 in reliance on the owner’s check because the parties’ contract was a “pay when paid” contract and Gainesville Asphalt was never “paid” by the owner. This argument falls short of the mark. The May 1991 new contract was entered by the parties because the owner had defaulted and after Gainesville Asphalt had sued the owner for the bounced check; and the May 1991 contract was plainly intended to cover the liability and rights of all the parties as to any recovery, including the owner’s bounced check, which might arise as the result of that suit (including any recovery by Gainesville Asphalt on the owner’s bounced check).

Gainesville Asphalt argues that the May 1991 contract did not extinguish its right to recoup this money. See Derosa v. Shiah, 205 Ga. App. 106 (421 SE2d 718). Gainesville Asphalt further argues that evidence relied on to prove waiver must be so clearly indicative of an intent to relinquish a then-known right or benefit as to exclude any other reasonable explanation. D. I. Corbett Elec. v. Venture Constr. Co., 140 Ga. App. 586 (231 SE2d 536); see Jones v. Abel, 209 Ga. App. 889 (434 SE2d 822). However, these authorities merely prove that in the circumstances of this May 1991 contract, which is exhaustive on every point including giving Merritt a certain percentage of Gainesville Asphalt’s recovery from the owner, if Gainesville Asphalt intended to assert any right to recoup $247,957.80 from Merritt, it would not have agreed to pay Merritt at least 11.5 percent of its recovery from Gainesville Asphalt without set-off. It cannot be supposed that in drawing up this extensively constructed contract — which was based entirely on the owner’s default and Gainesville Asphalt’s suit for that default — the parties would not have considered and reconciled within the terms of the contract such an important matter as the fact that allegedly Gainesville Asphalt’s payment to Merritt in November 1990 of $247,957.80 was made in reliance on that dishonored check payment from the owner. In its argument as to the trial court’s charge on accord and satisfaction, Gainesville Asphalt itself admits, “The evidence clearly showed that no dispute existed at the time of the execution of the May [1991] agreement .” (Emphasis supplied.) This admission proves that when Gainesville Asphalt agreed to pay Merritt 11.5 percent of its recovery from the owner without set-off, there was no dispute between Gainesville Asphalt and Merritt Contracting concerning the money paid to Merritt by Gainesville Asphalt, or that this agreement extinguished any “dispute.”

Decided October 23, 1996

Reconsideration denied December 9, 1996

Carey, Jarrard & Walker, R. Thomas Jarrará, Theodore W. Robinson, for appellant.

Stewart, Melvin & Frost, J. Douglas Stewart, Joe B. Sartain, Jr., for appellee.

Since we decline to ascribe to Gainesville Asphalt the secret intent to induce Merritt to enter the May 1991 contract and make certain promises to pay Merritt without even mentioning Merritt’s supposed debt to it of $247,957.80, while never intending to honor those promises to pay Merritt, we see no other “reasonable explanation” CD. I. Corbett Elec., supra) of the May 1991 contract and its terms except that when it executed the contract, Gainesville Asphalt did not then intend to seek a set-off in the amount of $247,957.80 and did not believe it had a claim to recoup that $247,957.80, and clearly waived any such claim. Jones, supra. The admission in evidence of the parties’ other transactions cannot alter this view, and was at best harmless error, since whatever the evidence, on the face of the undisputed facts surrounding the making of this May 1991 contract and based on its unambiguous contents, there is no other reasonable conclusion than the one the jury made, and its verdict was demanded by all the evidence and charges, even those which may have been erroneously admitted or given. Davis v. Davis, supra. It follows that the trial court could not have erred in denying summary judgment to Gainesville Asphalt and correctly denied a new trial.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A96A2258.
    WESTBURY SQUARE TOWNHOUSES ASSOCIATION, INC. v. BRYAN.
    (479 SE2d 190)
   Johnson, Judge.

In this case of first impression, we must answer a question of procedure under OCGA § 14-3-1604, which governs orders allowing members of nonprofit corporations access to corporate records. Westbury Square Townhouses Association, Inc., a nonprofit corporation, appeals from a superior court order directing it to allow Richard Bryan, one of its members,- to inspect and copy certain corporate records, and to pay Bryan $500 in costs and attorney fees. We reverse and remand for further proceedings.

On Friday, April 19, 1996, Bryan hand-delivered a letter to Westbury Square, asking to be allowed to inspect and copy certain corporate records on or before April 26, at a time and place to be chosen by the corporation. Bryan requested records falling into two categories: (1) Records covered by OCGA § 14-3-1602 (a), which any member has a right to inspect and copy. See OCGA § 14-3-1602 (b), and (2) records covered by OCGA § 14-3-1602 (c), which a corporate member has a right to inspect and copy after making a request meeting criteria set out in OCGA § 14-3-1602 (d). See id.

A member’s right to inspect and copy records in both categories may be exercised at a “reasonable” time and location, specified by the corporation, if the member gives the corporation written notice “at least five business days before the date on which the member wishes to inspect and copy.” OCGA § 14-3-1604 (b), (c).

Westbury Square did not respond to Bryan’s request in any way. Bryan’s lawyer claims he tried to reach Westbury Square’s attorney by phone several times on April 29 and April 30, but could not reach her; and that at about 1:30 p.m. on April 30, he left her a message that he planned to appear in superior court that same day at 4:00 p.m. to seek an order allowing Bryan access to the records. Bryan does not allege that he had any urgent need to inspect the records.

Westbury Square’s lawyers state that after they received a phone message on the afternoon of April 30 concerning the court appearance, one of them called the trial judge’s law clerk at about 3:15 p.m. The law clerk called back at 3:30 p.m. and said that someone had called about presenting a proposed order at 4:00 p.m., but that she was unaware of any case having been filed. The lawyer advised the law clerk that he would appear if it was “necessary,” and would also be available for a conference call. Westbury Square’s lawyer heard nothing else that day from the court.-

That afternoon, Bryan’s lawyer filed an application for an order allowing Bryan to inspect and copy the records, and for costs and attorney fees. This procedure is authorized by OCGA § 14-3-1604, which is based on the corresponding statute in the Georgia Business Corporation Code, OCGA § 14-2-1604, which in turn is based on § 16.04 of the Model Business Corporation Act. See Code Revision Committee comments to OCGA §§ 14-3-101 and 14-2-1604. OCGA § 14-3-1604 (a) provides that a superior court may “summarily” issue an order for access to records covered by OCGA § 14-3-1602 (a). The superior court is directed by OCGA § 14-3-1604 (b) to dispose of an application for access to records covered by OCGA § 14-3-1602 (c) “on an expedited basis.” If the court orders inspection and copying of the requested records, then OCGA § 14-3-1604 (c) requires it to award costs and reasonable attorney fees as well, unless the corporation proves it had a reasonable basis for doubting the member’s right to inspect the records.

After filing the application on April 30, Bryan’s lawyer presented a proposed order to the trial judge, which she signed the same day. Westbury Square was not served beforehand, and did not receive a copy of the application or the proposed order until after the order was entered. On May 2, Westbury Square filed a motion for reconsideration in the trial court, which was still pending when this appeal was docketed.

1. Bryan contends the appeal is premature because the motion for reconsideration is still pending. This contention.is without merit. The lower court’s order is appealable because it is a final ruling on the merits of the action, leaving no issues pending below. See Spring-U Bonding Co. v. State of Ga., 200 Ga. App. 533 (408 SE2d 831) (1991). A motion to reconsider does not extend the time for filing a notice of appeal. Precise v. City of Rossville, 196 Ga. App. 870, 871-872 (1) (397 SE2d 133) (1990).

2. Westbury Square alleges that the proceedings in the lower court violated its due process rights under the United States and Georgia Constitutions. We agree. Though the legislature, in the statutes here at issue, articulated a strong and clear public policy favoring a member’s right to inspect and copy corporate records, that right must be exercised in a manner that comports with due process.

(a) An appellate court should avoid a constitutional question if a case can instead be decided by reference to legislation. Hill v. Busbia, 217 Ga. 781, 782 (125 SE2d 34) (1962). Before reaching the due process issue, we must therefore first consider whether the proceedings in the lower court violated OCGA § 14-3-1604. This statute does not specify the form, content, or timing of notice that must be provided to a corporation before it can be ordéred to permit access to its records or to pay costs and attorney fees. Nor have we been able to find any cases establishing what notice is required under the statute, under the similar OCGA § 14-2-1604 (which applies to for-profit corporations), or under other states’ adaptations of § 16.04 of the Model Business Corporation Act.

(b) We have also looked for guidance to other Georgia proceedings characterized as “summary” or “expedited” to see what notice they require. This search has also been inconclusive. For instance, dispossessory proceedings are often characterized as “summary,” and the statutes governing them provide for service of process, a seven-day answer period, and the right to a trial, which the court shall attempt to “expedite.” OCGA §§ 44-7-51; 44-7-53. In other contexts, however, “summarily” is used to describe an ex parte order issued with little or no notice to the party adversely affected. See, e.g., OCGA § 43-39-13 (a) (1), (2), authorizing the State Board of Examiners of Psychologists in some circumstances to suspend a psychologist’s license “summarily . . . and thereafter enter a final order upon proper notice, hearing, and proof.” We note that in the latter example, the ex parte order is only temporary; final disposition of the controversy awaits fair notice and a subsequent hearing. By contrast, an order under OCGA § 14-3-1604 ends the dispute before the court.

(c) In giving meaning to “summarily” and “expedited” as used in OCGA § 14-3-1604, we must bear in mind that if a statute is susceptible of more than one construction, it should be construed so as to render it constitutional if possible. Garner v. Harrison, 260 Ga. 866, 869 (2) (400 SE2d 925) (1991); Busbia, supra. Though this reasoning requires us to consider questions of due process, in doing so we do not invade the exclusive jurisdiction of the Georgia Supreme Court over cases in which a statute has been alleged to be unconstitutional. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. II. Westbury Square does not contend that OCGA § 14-3-1604 is unconstitutional as written, merely that the particular procedures used in this case were improper. In deciding whether the statute allows the challenged procedures, we must decide what the statute means, and in doing so must try to avoid giving the statute an invalid meaning.

(d) “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Cits.) The notice must be of such nature as reasonably to convey the required information, [Grannis v. Ordean, 234 U. S. 385 (34 SC 779, 58 LE 1363) (1914)], and it must afford a reasonable time for those interested to make their appearance.” (Punctuation omitted.) Atlanta Janitorial Svc. v. Jackson, 182 Ga. App. 155, 157 (1) (355 SE2d 93) (1987), citing Mullane v. Central Hanover Bank &c. Co., 339 U. S. 306, 314-315 (70 SC 652, 94 LE 865) (1950). In Grannis, notice was held sufficient when it contained “notice of the commencement of the action and of its purpose, and [a] warning to appear and answer . . . and ... a brief description of the property sought to be divided.” (Citation omitted.) 234 U. S. at 397 (58 LE at 1370).

There are several possible grounds upon which a corporation might challenge a demand such as Bryan’s for records, costs, and attorney fees. No records need be provided if any of the following defenses apply: (1) The person demanding the records is not a member of the corporation; (2) the person demanding the records did not appear at a reasonable time and place, specified by the corporation, to inspect and copy them; (3) the demand for the records did not allow at least five business days for their production; (4) the demand was not properly delivered to the corporation; (5) the demanded records are not among those the statute requires to be kept and produced; and (6) the person demanding the records refused to pay a reasonable copying charge. See OCGA §§ 14-3-1602 (a) and (b); 14-3-1603 (c). The following additional defenses are available against a demand for records under OCGA § 14-3-1602 (c) and (d): (1) The demand is not made in good faith, or for a proper purpose that is reasonably related to the legitimate interest as a member of the person making the demand; (2) the demanded records were not described with reasonable particularity; (3) the demanded records are not directly connected with the member’s stated purpose; and (4) the demanded records will be used for some purpose not stated by the member. See id. Finally, even if the corporation is ordered to produce all the demanded records, it may still have the following defenses to the request for costs and attorney fees: (1) It refused inspection in good faith because it had a reasonable basis for doubting the member’s right to the records; and (2) the amount of costs and fees requested is not reasonable. See OCGA § 14-3-1604 (c).

None of these defenses may be asserted, however, if the corporation is not given a reasonable opportunity to prepare and present them. Because due process requires a procedure that provides such an opportunity, and the statute does not specify a procedure to' be used, the courts must adopt a valid procedure. We suggest the following procedure as being the simplest and most expeditious that complies with due process: (1) A corporate member aggrieved by a corporation’s refusal of, or failure to respond to, a demand for inspection and copying of records may file an application with the superior court for an order requiring access and awarding costs and attorney fees; (2) the application shall be served on the corporation pursuant to OCGA § 9-11-4; and (3) the court shall expedite a hearing on the matter, as the statute requires, and the hearing may be set by rule nisi. The corporation will not have the right to a jury trial because such would be inconsistent with the statutory scheme and the policy of expediting the matter.

The drafters of the Model Business Corporation Act contemplated that a more expedited procedure would be available under subsection (a) of its § 16.04 than under subsection (b). See 16-62 Model Business Corporation Act Annotated (3d ed.), § 16.04 Official Comment (Prentice Hall Law & Business 1995). While we do not require a more expedited procedure under OCGA § 14-3-1604 (a) than under OCGA § 14-3-1604 (b), a superior court should bear in mind when setting its schedule that a hearing under subsection (a) will usually present issues that are fewer and simpler than a hearing under subsection (b).

Decided December 9, 1996.

Weissman, Nowack, Curry & Zaleon, Charles B. Waters, Jr., for appellant.

William G. Leonard, for appellee.

A corporation acts at its peril when it attempts to deny its members information they are lawfully due. Our holding is not intended to frustrate or restrict a member’s statutory right of prompt access to corporate records. Rather, we intend to facilitate the exercise of this right, and the sanctioning of those who would flout it, within the most minimal procedural framework consistent with due process.

The trial court’s order is vacated, and the case is remanded for a new hearing to be conducted under procedures consistent with the suggestions set out in this opinion.

3. Bryan’s motion to sanction Westbury Square for a frivolous appeal is denied.

Judgment reversed and case remanded for further proceedings.

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


text:
    A96A2397.
    HAWKS v. THE STATE.
    (479 SE2d 186)
   Johnson, Judge.

A jury found Adell Hawks guilty of aggravated assault after hearing evidence that he hit Debra Denise Lee' with a stick. He appeals the judgment entered on that conviction.

1. Hawks asserts the state’s notice of intent to present similar transaction evidence was legally insufficient because it did not specify the legitimate purpose for which the state sought to introduce the evidence. Hawks relies on Rodriguez v. State, 211 Ga. App. 256, 258-259 (4) (a) (439 SE2d 510) (1993), in which we said: “[W]e note for the benefit of the bench and bar that the notice of intent to introduce evidence of similar crimes should clearly specify the proper purpose for which introduction of such evidence is sought, ‘as an exception to the general rule of inadmissibility. (CitI)’ Hightower v. State, 210 Ga. App. 386, 388 (3) (436 SE2d 28) (1993). The purpose of timely advance notice is to allow the defendant to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses. Thompson v. State, 186 Ga. App. 421, 422-423 (2) (367 SE2d 586) (1988). A rote recitation of any and all permissible purposes will not suffice. Moreover, where the State does ‘not inform the trial court of the purpose for which the evidence (is) being offered!,) ... it (is) impossible for the trial court to make the essential preliminary determination as to whether the (S)tate (is seeking to introduce) the evidence for an appropriate purpose.’ Williams v. State, 261 Ga. 640, 643 (2d) (409 SE2d 649) (1991). Likewise, the trial court should specify on the record which proper purpose or purposes permit introduction of the proffered similar transaction. Williams v. State, supra at 642 (2) (b), fn. 3 and accompanying text. A vague ‘finding’ of an unspecified ‘proper, specific purpose’ is wholly inadequate to apprise the defendant of the limited grounds upon which such evidence is admissible.” (Emphasis omitted.) The trial court conducted a hearing on the state’s motion to introduce evidence of similar transactions immediately before the trial in this case. The state explained to the court that the similar transactions sought to be introduced in this case both involved the same victim as the present case and that the introduction of the earlier incidents was probative of Hawks’ bent of mind and course of conduct. In the first transaction the state sought to introduce, Hawks was convicted of simple battery after an altercation with Lee about unpaid bills in 1993. Hawks also pled guilty to a battery involving Lee which occurred in 1996, an offense committed 13 months after the offenses for which Hawks was on trial in this case.

In Rodriguez we identified two reasons why the state should specify the proper purpose for which it intends to introduce similar transaction evidence in the notice: (1) to assist the trial court in making the essential preliminary determination as to whether the state is seeking to introduce the evidence for an appropriate purpose; and (2) to afford the defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses. The trial court noted that the purposes for the introduction of the similar transactions in this case were “fairly obvious” from the nature of the evidence, and also that, even though not specifically stated in the notice itself, the state stated its proper purposes for seeking the introduction of the evidence with sufficient specificity prior to trial. Here it was possible for the trial court to make the essential preliminary determination regarding the admissibility of the similar transaction evidence even though the state failed to specifically enumerate those purposes in the notice. Likewise, Hawks does not assert that he was surprised upon learning the state’s purpose in seeking to introduce the similar transactions at the hearing. He did not move for a continuance in order to investigate the validity, relevancy, or other aspects of admissibility of the prior offenses upon learning the state’s purposes in seeking the introduction of the evidence. Hawks has failed to show that his defense of the case was harmed as a result of the state’s failure to state its purpose in its notice. See James v. State, 209 Ga. App. 182, 183 (1) (433 SE2d 132) (1993). Therefore, this enumeration presents no grounds for reversal.

2. Whether characterized as evidence of similar transactions or as evidence of prior difficulties between the parties, the trial court did not err in admitting evidence of Hawks’ prior convictions involving violence perpetrated against Lee. See Freeman v. State, 214 Ga. App. 425, 427 (2) (448 SE2d 465) (1994). At the hearing held prior to

trial, the state made a sufficient showing: (1) that it sought to introduce evidence of the independent crime, not to raise an improper inference as to Hawks’ character, but for the purpose of showing course of conduct and bent of mind; (2) that Hawks committed the independent crimes; and (3) that a sufficient similarity existed between the independent crime and the crime charged so that the former tended to prove the latter. See Williams v. State, supra at 642 (2) (b).

3. Hawks argues that the trial court erred in admitting photographs depicting Lee’s injuries sustained in one of the similar transactions. He contends that the photographs were offered for the sole purpose of inflaming the jury and arousing their anger against Hawks. We disagree. Physical evidence, like oral testimony, is probative in establishing the similarity between the prior offenses and the current offense to show course of conduct. See Oliver v. State, 168 Ga. App. 477 (3) (309 SE2d 627) (1983). Here, Hawks was charged with hitting Lee in the face with a stick which caused bruises to her forehead and eyes. Photographs identified by Lee of a previous incident show her face swollen and discolored after being kicked in the face by Hawks. Because the photographs depicted similar injuries inflicted by Hawks, they were probative to establish course of conduct, even if they also inflamed and prejudiced the jury. See Jefferson v. State, 206 Ga. App. 544, 548 (5) (425 SE2d 915) (1992); compare Jefferson v. State, 217 Ga. App. 747, 754 (2) (459 SE2d 173) (1995).

4. Hawks asserts the trial court erred in allowing Brenda Cook to testify as an expert regarding the “cycle of abuse” which characterizes certain relationships in which repeated domestic violence occurs. The officer who responded to the call testified that Lee’s shirt was torn, there was a large swollen area above her left eye when he arrived at their residence, and she appeared to be angry. Lee testified at one point at trial that Hawks did not swing the stick hard and said that it was probably more like a “love tap.” During his cross-examination of Lee, defense counsel elicited testimony that she and Hawks had “broken up” and reconciled five times in the six-year relationship, including one marriage and divorce. Lee also said that she did not want to go forward with the prosecution of this case and that, but for the subpoena, she would not have been in court.

Decided December 9, 1996.

Carey, Jarrard & Walker, Theodore W. Robinson, for appellant.

Lydia J. Sartain, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

To suggest an explanation for Lee’s contradictory testimony, the state proffered the testimony of Cook, who has four years of training and experience in working with domestic violence as director of a battered women’s shelter. Cook testified that in the “honeymoon” or “remorse” stage of the cycle of domestic violence, a victim often will go into denial, minimize the violence which has occurred, and become reluctant to prosecute her partner. Unlike the expert in Prickett v. State, 220 Ga. App. 244, 246-247 (3) (469 SE2d 371) (1996), upon which Hawks relies, Cook was qualified to testify as an expert in the field of the cycle of domestic violence, an area which has been recognized by our Supreme Court as an area in which expert testimony is appropriate. See Chief Justice Benham’s special concurrence in Chester v. State, 267 Ga. 9, 13-14 (471 SE2d 836) (1996), which addresses the use of expert testimony regarding the battered person syndrome to explain conduct of victims of domestic violence. Id. at 13. Further, in Prickett, supra, the expert witness did not limit his testimony to counseling, the area in which he had been qualified as an expert, but described the characteristics of post-traumatic stress disorder and concluded that the victim in the case suffered from it. Here, Cook testified that she did not know Lee or Hawks, and any conclusion about whether Lee’s ambiguous behavior regarding the injuries she sustained in the incident could be attributed to the “cycle of violence” was properly left entirely to the jury. The trial court did not err in allowing this testimony.

5. Finally, Hawks claims the evidence was insufficient to support a conviction for aggravated assault. On appeal the presumption of innocence no longer prevails, we view the evidence in the light most favorable to the verdict and we do not speculate which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). Lee testified that she and Hawks were arguing about money. The two began struggling, and Lee picked up a stick to defend herself. Hawks wrested the stick from her and hit her in the head, injuring her. This evidence was sufficient to authorize the jury to find Hawks guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Smith v. State, 213 Ga. App. 207, 208 (2) (444 SE2d 146) (1994).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A96A1839.
    McNABB et al. v. LANDIS et al.
    (479 SE2d 194)
   Judge Harold R. Banke.

Don McNabb, individually, and as executor of the estate of his wife, Patty McNabb (“McNabb”), sued Anthony Landis, D.O., and Suburban Hematology-Oncology Associates, PC. (“Landis”) asserting a medical malpractice claim for the wrongful death of his wife. Following a defense verdict, McNabb enumerates six errors.

In August 1991, Patty McNabb was diagnosed with breast cancer. Surgery revealed that the cancer had spread to several axillary lymph nodes. Her surgeon, Wallace Martin, M.D., recommended chemotherapy with Landis. During her initial consultation, Patty McNabb informed Landis that she had a family history of heart problems. Her medical records indicate that when Landis examined her, she was approximately, five feet, four inches tall and weighed about 200 pounds. Based on his physical examination, Landis concluded that Patty McNabb did not exhibit signs of underlying heart disease. Landis treated Patty McNabb with several drugs including adriamycin, a highly potent drug known to cause serious heart damage in some patients. Having decided that Pátty McNább lacked any cardiac risk factor contraindicating adriamycin’s use, Landis continued to treat her with it over several months. In February 1992, Patty McNabb was diagnosed with irreversible adriamycin-induced cardiomyopathy. Shortly after her rejection as a candidate for a heart transplant, she died in April 1992.

McNabb’s expert, Gary B. Witman, M.D., testified that the failure to obtain a baseline EKG before administering adriamycin deviated from the applicable standard of care. Witman testified that excellent alternative chemotherapy drugs were then available including another drug with less cardiotoxicity. It is undisputed that Landis did not obtain a baseline EKG and that Patty McNabb’s records included two abnormal EKGs, one obtained before Landis prescribed adriamycin and one performed during the time of her treatment. Landis testified that he never reviewed either abnormal EKG and was unaware of their existence until after her death. The gravamen of McNabb’s malpractice claim was that Landis failed to obtain a baseline EKG and breached the standard of care by authorizing adriamycin without further testing. McNabb further contended that Landis’ failure to review the existing and available abnormal EKGs from August and October 1991 constituted negligence. Held:

1. The trial court erred in its charge on hindsight. The trial court omitted crucial language from the hindsight charge approved in Haynes v. Hoffman, 164 Ga. App. 236, 238 (3) (296 SE2d 216) (1982). Here, the trial court incompletely charged, “I charge you that in a medical malpractice action a defendant cannot be found negligent on the basis of an assessment of a patient’s condition which only later in hindsight proves to be incorrect so long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight.” This charge omitted: “[Njegligence consists in not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.” Haynes, 164 Ga. App. at 238 (3). This omission renders the charge used an incomplete statement of law. See id.

Moreover, the evidence did not warrant a charge on hindsight. The hindsight charge is appropriate in a medical malpractice case where the evidence raises an issue ás to whether the negligence claim is premised on later acquired knowledge or information not known or reasonably available to the defendant physician at the time he provided the medical care. Horton v. Eaton, 215 Ga. App. 803, 807 (4) (452 SE2d 541) (1994); compare Haynes, 164 Ga. App. at 238 (3).

Here, at issue was whether Landis’ failure to obtain and interpret a baseline EKG on the decedent comported with the applicable standard of care; in other words, whether Landis’ authorization of the use of adriamycin without the conducting of any preliminary testing was negligent. Hindsight, based on information that became available later, was not at issue. Compare Yuscavage v. Jones, 213 Ga. App. 800, 803 (5) (446 SE2d 209) (1994). A charge which injects issues into a case not supported by the evidence tends to confuse a jury as to the true issues. McCoy v. Alvista Care Home, 194 Ga. App. 599 (391 SE2d 419) (1990). Because the jury was improperly charged on hindsight, we reverse.

Having decided to reverse, we reach only those issues that may recur during the trial of this matter.

2. The trial court did not err in denying McNabb’s motion to limit or disallow the testimony of Landis’ six expert witnesses. The record shows that four of the six physicians at issue provided medical care to the decedent or performed the autopsy. OCGA § 9-11-26 (b) (4) (A) (i) had no application to these witnesses since their knowledge and opinions arose from personal involvement with the decedent. See Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 458 (2) (349 SE2d 756) (1986). The other two witnesses had been identified as experts months before trial in supplementary responses to McNabb’s continuing interrogatories. Landis had provided summaries for their opinions and stated the grounds for each one. See OCGA § 9-11-26 (b) (4) (A) (i); Austin v. Kaufman, 203 Ga. App. 704, 709 (7) (417 SE2d 660) (1992).

Decided December 10, 1996.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., John F. Daugherty, Deborah M. Carter, for appellants.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Patricia M. Peters, for appellees.

3. McNabb contends that the trial court impermissibly commented on the testimony of Gary Witman, M.D. and violated OCGA § 9-10-7. McNabb’s failure to object or move for a mistrial on this issue precludes appellate review. Provost v. Gwinnett County, 199 Ga. App. 713, 714 (4) (405 SE2d 754) (1991).

4. The trial court did not err in refusing to allow McNabb’s counsel to gratuitously inject Landis’ financial status into closing argument. Facts not in the record and calculated to prejudice the opposing party cannot be introduced into the case in closing argument. Williams v. Piggly Wiggly Southern, 209 Ga. App. 490, 491 (433 SE2d 676) (1993); OCGA § 9-10-185.

5. The trial court did not err in excluding certain portions of the testimony of McNabb’s expert, Donald Jansen, M.D. It is undisputed that at the time the deposition was videotaped the parties agreed to make all objections on the record and that these portions of Jansen’s testimony were not objected to. Despite that stipulation, at trial, Landis moved to exclude certain portions of Jansen’s deposition testimony.

At its discretion, a trial court may exclude evidence whose probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or confuse issues or mislead the jury. Hunter v. Hardnett, 199 Ga. App. 443, 444 (1) (405 SE2d 286) (1991). The applicable standard of care is that employed by the medical profession generally and not what one individual doctor thought was advisable or would have done under the circumstances. Kenney v. Piedmont Hosp., 136 Ga. App. 660, 664 (3) (222 SE2d 162) (1975); see Slack v. Moorhead, 152 Ga. App. 68, 71 (262 SE2d 186) (1979). Here, the excluded testimony pertained to Jansen’s personal views and personal opinions as to the care and treatment he himself would have rendered. See id.; Hunter, 199 Ga. App. at 444.

Judgment reversed and case remanded.

McMurray, P. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A96A1880.
    LEE v. SEARS et al.
    (479 SE2d 196)
   Blackburn, Judge.

Jeffery Lee brought this automobile negligence case against William Sears and Hughes Waste Management, Inc., but the trial court found his suit barred by the exclusive remedy provisions of the Workers’ Compensation Act, OCGA § 34-9-11, and granted the defendants’ motion for summary judgment. Lee appeals, and we affirm.

When an employee is negligently injured by a co-employee and his injury “arises out of and in the course of employment,” the employee’s exclusive remedy against either his employer or the co-employee is a claim for workers’ compensation benefits. Johnson v. Hames Contracting, 208 Ga. App. 664, 667 (4) (431 SE2d 455) (1993). Although Lee admits the injury occurred “in the course of” his employment with Hughes, he denies it “arose out of” that employment.

Lee worked for Hughes as a plumber. He did not have a driver’s license, so Sears, another Hughes employee, usually picked him up for work each morning in a company vehicle, drove him to the office and to various work sites, and then drove him home again at night. Hughes’ president claims this arrangement was beneficial to the company. On the day of the accident, Sears picked up Lee and took him to the office. As there were few assignments that day, the two left the office in a company vehicle and went to Valentino’s Lounge. According to Lee, Valentino’s was on the way to his home. Lee and Sears ate lunch and remained at Valentino’s several hours, playing pool and apparently drinking alcoholic beverages. At approximately 5:00 p.m., the two got back in the company truck, and Sears drove Lee toward Lee’s home. They were involved in an automobile accident en route to Lee’s residence.

Whether an injury arises out of and in the course of employment is generally a mixed question of law and fact. But where, as here, the material facts are not in dispute, that issue may be determined as a matter of law. Blair v. Ga. Baptist Children’s Home &c., 189 Ga. App. 579, 581 (1) (377 SE2d 21) (1988). After reviewing the record de novo and in a light most favorable to Lee, we find no genuine issues of material fact exist, and the trial court did not err in granting summary judgment for Sears and Hughes. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. In his first enumeration of error, Lee contends the trial court erred in applying the “employer-furnished vehicle rule.” That rule determines whether an employee who is taking advantage of employer-provided transportation to work is acting “within the course of” his employment. See generally Eickhorn v. Boatright, 219 Ga. App. 895, 896 (2) (467 SE2d 214) (1996); Indem. Ins. Co. of North America v. Bolen, 106 Ga. App. 684, 687-688 (1) (127 SE2d 832) (1962). However, because Lee admitted in his response to the motion for summary judgment that the accident occurred in the course of his employment, we need not address whether this rule applies. Accordingly, we need not consider any other of Lee’s arguments directed towards this issue. See Kannady v. State Farm &c. Ins. Co., 214 Ga. App. 492, 495 (5) (448 SE2d 374) (1994) (appellate court does not consider grounds not raised below).

Decided December 10, 1996.

2. The trial court also properly concluded this accident arose “out of” Lee’s employment. An injury arises out of employment when a reasonable person would perceive a causal connection between an employee’s working conditions and his injury. Hennly v. Richardson, 264 Ga. 355, 356 (1) (444 SE2d 317) (1994). Lee’s injury has a causal relationship to his employment because “his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment. [Cit.]” Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 567 (263 SE2d 455) (1979); see Bolen, supra at 688-689 (2).

Although Lee argues the stop at Valentino’s was a personal mission, this fact does not. alter our analysis. “Where an employee departs from the employer’s business for a personal reason, but then concludes the personal mission and resumes the employer’s business before an injury occurs, the injury is viewed as arising out of and in the course of employment. [Cit.]” (Emphasis supplied.) Lewis v. Chatham County &c. Planning Comm., 217 Ga. App. 534, 535 (458 SE2d 173) (1995). The evidence shows without question that taking Lee home in the Hughes truck was part of the employer’s business.

Like the woman who was attacked by a stranger while going to her vehicle in the employer-provided garage in Macy’s South v. Clark, 215 Ga. App. 661, 662-663 (1) (452 SE2d 530) (1994), Lee was injured while taking advantage of another employer-provided benefit: a ride home. An automobile accident was a risk inherent in this activity. See Pulliam v. Richmond County Bd. of Commrs., 184 Ga. App. 403, 404 (361 SE2d 544) (1987) (traffic accident is risk faced by patrol officer). Lee’s injury, therefore, has sufficient causal connection to his employment that it may be deemed to have “arisen out of” his employment. Macy’s South, supra at 663. Summary judgment was therefore appropriate.

Judgment affirmed.

Beasley, C. J., and Senior Appellate Judge Harold R. Banke concur.

Quinton T Hudson & Associates, Lee C. Watkins III, for appellant.

Downey & Cleveland, Y. Kevin Williams, Richard A. Griggs, for appellees.


text:
    A96A2164.
    AMERICAN BOOK DISPLAY v. POYTHRESS et al.
    (479 SE2d 198)
   Johnson, Judge.

The Georgia Department of Labor (DOL) determined that Joseph Guterman, who sold books for American Book Display (“ABD”), had engaged in “employment” for ABD under the Employment Security Act. This decision rendered ABD liable for contributions on Guterman’s behalf to the Georgia Unemployment Compensation Fund. The decision was affirmed in an administrative appeal and by the superior court. We granted ABD’s petition for discretionary review, and now affirm.

ABD is headquartered in Illinois, and has an office in Georgia. Under a contract styled “Independent Contractor Agreement,” Guterman took books on consignment from ABD and sold them “direct to the consumer.” Guterman was free to set the retail prices, but had to pay ABD a preset amount for each book. Guterman’s only compensation was the difference between those two prices. He could return unsold books to ABD.

In most respects, the terms of the contract appear to create an independent contractor relationship. ABD did not withhold payroll taxes from Guterman’s compensation or provide him with benefits such as health insurance or a retirement plan. ABD did not set his hours, provide him with customer lists, or regulate what he wore. ABD did not provide him with an office or showroom, and did not give him equipment such as phones, computers, or office supplies. Nor did ABD reimburse him for any space, equipment, supplies, travel expenses, or anything else. ABD did not prohibit Guterman from selling competitors’ merchandise alongside ABD’s. ABD provided some training and held some meetings, but they were not mandatory. ABD representatives could arrange for their own advertising, and were free to hire assistants if they desired to do so. The representatives were completely responsible for paying and supervising any assistants they hired, and ABD did not have the power to discharge the assistants.

The DOL concluded that Guterman had engaged in “employment,” though the hearing officer’s decision does not clearly explain why. The following facts are the only ones that could support the decision: (1) Each ABD representative was assigned a territory. If he sold in another representative’s territory, he had to turn the commission over to the other representative, but received no other sanction. He received full commissions for any sales in unassigned territories. (2) The usual practice was for each representative to make a weekly visit to the ABD office, but some representatives conducted all their business with ABD by telephone and delivery service. (3) Each representative was required to submit weekly inventory sheets to ABD, though sometimes representatives took longer than a week between submissions. (4) ABD would give its representatives, not the consumers, replacements for any defective merchandise. (5) A “Daily Drop Requirements” sheet signed by Guterman indicates that ABD desired a minimum volume of sales, though ABD’s brief asserts that there was no minimum. There was no hearing testimony regarding this sheet. (6) Representatives were offered non-mandatory initial training, and were offered follow-up training if they had problems meeting sales goals. (7) ABD supplied some advertising materials that representatives could pass on to their customers. (8) ABD supplied some sales leads to its representatives. Of these possible supporting factors, only the first was mentioned in the superior court order affirming the administrative decision.

1. The “any evidence” standard applies to our review of the DOL’s factual findings, though we may review its legal conclusions. Holstein v. North Chemical Co., 194 Ga. App. 546, 547-548 (3) (390 SE2d 910) (1990).

2. The question in this case is not, as ABD frames it, whether Guterman was an “employee” or an “independent contractor.” “It makes no difference whether the relationship between the parties was one of employer-employee or the [wage earners] were independent contractors. The test, and the question here for decision, is whether the status between the parties falls within the meaning of employment as defined by the [Employment Security] Act!’ (Citation omitted, emphasis in original.) Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429, 430 (1) (254 SE2d 375) (1979); see id. at 431-432 (1). Because the statutory language controls the issue of whether ABD was liable for contributions to the trust fund on Guterman’s behalf, we do not apply common-law tests to determine whether Guterman was an independent contractor or an employee. Stuart-James Co. v. Tanner, 259 Ga. 289, n. 1 (380 SE2d 257) (1989). Rather, under the Employment Security Act, services performed for wages are presumed to be employment unless they qualify for one of several statutory exclusions. See OCGA § 34-8-35. The Act’s definition of “wages” includes all remuneration for services, including commissions, with some exceptions not relevant to this case. See OCGA § 34-8-49.

ABD does not dispute the DOL’s finding that it paid Guterman wages under the Act. Instead, ABD contends that Guterman’s services qualified for two statutory exclusions from “employment.”

3. ABD first contends that Guterman’s services qualified for an exclusion from “employment” established by OCGA § 34-8-35 (n) (16) for the services of some carriers of printed materials. Although ABD made this argument to the DOL and the superior court, neither tribunal addressed it. This exclusion only applies if “[r]emuneration for the independent contract carrier is on the basis of the number of deliveries accomplished.” OCGA § 34-8-35 (n) (16) (B). As previously noted, Guterman’s remuneration was the difference between the retail price of each book and the amount remitted to ABD. There was no fixed compensation per book, and no fixed number of books per delivery. His remuneration was therefore not “on the basis of the number of deliveries accomplished,” so his services did not fall under subsection (n) (16).

4. In the alternative, ABD contends it satisfied the three-part test set out in OCGA § 34-8-35 (f) (1), (2), and (3) for determining whether most wage earners’ services may be excluded from “employment.” The DOL hearing officer found that Guterman’s services failed to satisfy subsection (2) and another unspecified part of this test. The superior court held that ABD had “failed to satisfy at least the second prong of the . . . three part test.”

OCGA § 34-8-35 (f) (2) provides that a service may only be excluded from “employment” if it is performed “outside the usual course of the business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed.” (Emphasis supplied.) The DOL hearing officer correctly found Guterman’s services to be “fully within the course of the employer’s business (the selling of books),” but did not address whether they were performed outside ABD’s places of business. The superior court found that subsection (2) was not satisfied because “the territories were assigned by the company and for the company’s own administrative purposes.”

In some circumstances, a sales territory may constitute a “place of business” under the Employment Security Act. See, e.g., Babb & Nolan v. Huiet, 67 Ga. App. 861, 866 (21 SE2d 663) (1942), holding that the services of real estate agents were performed in their broker’s place of business because they were “performed within the limits, territorially or otherwise, of the contract.” Id. at 866. Compare Vocational Placement Svcs. v. Caldwell, 168 Ga. App. 198 (308 SE2d 618) (1983), in which workers were customarily assigned tasks near their homes. There we held that the workers’ services were not performed in the employer’s place of business because the territorial custom was merely a convenience for the workers, not a supervisory tool. Id. at 201 (1) (b).

Decided December 10, 1996

Ford & Harrison, Jon M. Gumbel, for appellant.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellees.

In this case, we need not decide whether the ABD territories were supervisory devices or served some other function. This is because the DOL hearing officer found that “[SJales Reps report to the office weekly to pick up inventory and turn in sales receipts.” Because Guterman’s services for ABD included this in-office inventory pickup and sales receipt return, his services were not performed “outside of all the places of business of” ABD, as required by OCGA § 34-8-35 (f) (2) (emphasis supplied). This fact distinguishes our case from Sarah Coventry, supra, and Vocational Placement Svcs., supra, because there is no indication in either of those opinions that the workers in question had regular routines that brought them into their employers’ offices. Compare also Zachos v. Huiet, 195 Ga. 780, 782-783 (25 SE2d 806) (1943), in which the services of commission salespeople were held not to be “employment” when they sold from Florida to Maryland and were not required to report to the employer in person at any time.

Services must satisfy all three subsections of OCGA § 34-8-35 (f) in order to qualify for its exclusion from “employment,” so Guterman’s services for ABD do not qualify. See Sarah Coventry, supra at 432 (2). We therefore affirm the superior court’s judgment finding Guterman’s services to constitute “employment” under the Employment Security Act. “A judgment right for any reason will be affirmed.” (Citation omitted.) Darugar v. Hodges, 221 Ga. App. 227, 229 (471 SE2d 33) (1996).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       After Babb & Nolan, the legislature exempted commission real estate sales from “employment” by amending Ga. Code Ann. § 54-657 (h) (7) (M), today’s OCGA § 34-8-35 (n) (9). Acts 1966, p. 141.


text:
    A96A0952.
    CRAPP v. ELBERTA CRATE & BOX COMPANY.
    (479 SE2d 101)
   Blackburn, Judge.

Lossie Crapp appeals the grant of summary judgment to her employer, Elberta Crate & Box Company (Elberta), in her negligence action. Crapp was left paralyzed after her former boyfriend, Earlich Denmark, shot her on the premises of Elberta before he committed suicide.

“The standard of review of the trial court’s grant of defendant's] motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated by plaintiff in her complaint. The standard for granting summary judgment is that the moving party must demonstrate that there is no genuine issue of material fact, and that undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations omitted.) Artlip v. Queler, 220 Ga. App. 775, 776-777 (470 SE2d 260) (1996).

On the job site at Elberta in 1988, while in a jealous rage, Denmark had violently attacked another female co-employee whom he had been dating. Denmark threatened to hit that female co-employee with a board. Faced with suspension over the incident, Denmark quit his job but was rehired by Elberta in 1990.

On April 6, 1994, at Elberta’s plant, Denmark became jealous after seeing Crapp talking to another man. Denmark physically attacked Crapp and “started swinging,” knocking her to the ground. She cut her arm as she fell, and he continuously directed obscenities at her during the attack. Another employee had to physically pull Denmark off of Crapp. Crapp immediately reported the incident to her supervisor.

Jeffrey Weaver, an Elberta supervisor, fired Denmark on the spot for assaulting Crapp and told him to leave the premises. Elberta did not elect to mail Denmark’s final check to him, deliver it to him, or otherwise make arrangements for Denmark to obtain his check without returning to the plant. With full knowledge of Denmark’s propensity for violence and his attack that very day upon plaintiff, who remained on the job site following the attack, Elberta specifically directed Denmark to return to the premises at 4:00 p.m. to pick up his paycheck. Weaver testified that he did not even designate a specific place on Elberta’s premises for Denmark to return: “I just told him to come back and see me and I’d have his check.”

Although Elberta told Crapp that Denmark had been fired, it did not warn her that Denmark had been instructed to return to the premises later that day. Even though Denmark had been directed to return to the plant, Elberta took no action to protect the victim or to prevent another violent attack upon her by Denmark upon his return. When Denmark returned as directed, he confronted Crapp at her work station, shot her twice within two to three minutes, and committed suicide thereafter.

OCGA § 51-3-1 establishes the duty owed by a landowner or occupier of land to those invited on his land: “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” Crapp was an invitee of Elberta, because “the relationship [was] one of mutual interest to the parties.” (Citations and punctuation omitted.) DeGracia v. Huntingdon Assoc., Ltd., 176 Ga. App. 495, 496 (2) (336 SE2d 602) (1985).

While a proprietor may generally avoid liability where there is an intervening criminal act of a third party upon an invitee, if the proprietor had reasonable grounds for apprehending that such criminal act would be committed or is reasonably to be anticipated, such as a history of similar criminal acts, the proprietor may be liable to the victim, despite the independent criminal act, and such issue is for jury determination. Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 161 (342 SE2d 468) (1986).

Elberta contends that summary judgment in its favor was appropriate because it did not have superior knowledge of Denmark’s violent propensities, citing Clark, supra at 159. It is, however, undisputed that Elberta had superior knowledge to Crapp of the fact that Denmark would be returning to the premises. On this issue, the facts of this case are analogous to those of Howell v. Three Rivers Security, 216 Ga. App. 890 (456 SE2d 278) (1995). In Howell, a night club admitted an individual named Bennett whom it had earlier ejected for fighting and banned for life. Plaintiff, a patron in the bar who had been threatened by Bennett in the past, was injured by Bennett when the bar re-admitted Bennett, despite having banned him for life. Stating that “[t]he true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm,” Howell specifically held that the bar breached its duty to the plaintiff. (Citation, punctuation and emphasis omitted.) Id. at 891, 892.

Applying the Howell analysis to the facts of the instant case, viewed most favorably for Crapp, Elberta breached its duty of ordinary care to Crapp when, with full knowledge of Denmark’s propensity for violence toward Crapp, it specifically directed Denmark to return to the premises, when it failed to warn Crapp of such direction, when it permitted Denmark back on the premises, and when it failed to protect Crapp from Denmark’s demonstrated violence upon his return to the premises at their direction. Elberta had superior knowledge to Crapp of the fact that Denmark would be returning to the premises and of the need for additional safeguards arising from such return.

Elberta argues that Denmark’s shooting of Crapp was not foreseeable as a matter of law, because it was not similar to Denmark’s prior assault on his former girl friend on Elberta’s premises. However, “[a]ll that is required is that the prior incident be sufficient to attract the [proprietor’s] attention to the dangerous condition which resulted in the litigated incident.” (Citation and punctuation omitted.) Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994), aff’d, 265 Ga. 235 (454 SE2d 507) (1995). The prior incident need not be the same crime, and the means of inflicting injury need not be identical. Id. at 795. Accordingly, this argument is without merit.

Finally, Elberta argues that summary judgment was appropriate because this case is factually similar to Clark v. Carla Gay Dress Co., supra. In Clark, the plaintiff informed her supervisor that her husband abused drugs and beat her. Clark, supra at 157. She was subsequently shot at her workplace by her estranged husband, and the grant of directed verdict for the proprietor was upheld. Id. In Clark, the estranged husband who shot his wife at work had neither worked for the defendant proprietor nor attacked his wife on the proprietor’s property earlier the same day, as Denmark had. The proprietor also had not specifically directed the husband to come to the workplace or failed to warn the victim of such direction. In Clark, the proprietor did not have superior knowledge to that of the victim that the attacker would be returning to the premises. Also, unlike Elberta, the proprietor in Clark “did not have notice of the dangerous conduct on the part of the husband on the occasion in question” (Citation and punctuation omitted; emphasis in original.) Id. at 162. Elberta’s reliance upon Clark is misplaced as it is factually distinguishable.

As there is evidence that Elberta could have foreseen the unreasonable risk of harm posed to Crapp by its directing and permitting Denmark’s unsupervised return to the premises without her knowledge, and as the evidence shows a genuine issue of material fact exists for jury determination as to whether Elberta breached its duty of ordinary care to Crapp, the trial court erred in granting summary judgment to Elberta.

Judgment reversed.

Beasley, C. J., and Birdsong, P. J., concur.

Decided November 25, 1996

Reconsideration denied December 11, 1996

Del Percilla, Jr, for appellant.

Kirbo & Kendrick, David A. Kendrick, Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appellee.

       Ultimately, the plaintiff in Howell was precluded from recovering, as he became aware that his attacker had been re-admitted to the bar, but chose to continue dancing near a security guard even after he saw his attacker approaching. In light of his decision to remain in a dangerous situation despite ample opportunity to leave, we held that at that point in time, just prior to the attack, the plaintiff had no serious argument that the bar “had superior knowledge of [his] peril under the circumstances.” Id. at 892.


text:
    A96A2054.
    GRANTHAM v. GRANTHAM.
    (479 SE2d 370)
   Birdsong, Presiding Judge.

We granted this appeal of the trial court’s grant of permanent custody of Joyce Grantham’s child to the child’s grandmother. The grandmother filed a “Complaint for Temporary and Permanent Custody” alleging that the child has lived with her since birth and that the mother has certain bad habits and problems and is incapable of caring for and supporting the child. At the hearing in Coffee County Superior Court, the mother appeared pro se, and the grandmother was represented by counsel Keith Solomon. The hearing is reported herewith in its entirety:

“REPORTER’S NOTE: On Monday, March 11, 1996, at approximately 10:30 a.m., the within case is called for hearing and the following transpires: THE COURT: Graham versus Graham. [SOLOMON]: Is that Grantham, Judge? [COURT]: Yes, excuse me, it is Grantham. [SOLOMON]: Ms. Grantham. (Parties approach the bench.) [SOLOMON]: Judge, this is a complaint for temporary and permanent custody. The defendant is Joyce Grantham; that is the plaintiff’s daughter. She is here today. She is unrepresented. I spoke to her before court to ask if she was going to contest the custody being changed to her mother and she said that she was. This is the plaintiff, Mrs. Margaret Grantham. She is the maternal grandmother of an approximately four year old child who has been in her custody since [her] birth. Joyce Grantham is the mother. [COURT]: Is that what this is, a temporary custody? [SOLOMON]: This is temporary and permanent custody, is what we had asked for in this matter. This is the grandmother who has had the baby since [her] birth. This is the mother who is contesting the custody. [COURT]: All right. Ma’am, do you want to say something? [MOTHER]: I’ve been there with the baby up [until] the last seven months. The baby’s been with me living in her house. [SOLOMON]: She has since the child’s birth, Judge, been in and out of Mrs. Grantham’s house. She’s been using —. [COURT]: All right, Mrs. Grantham, let me hear from you. [SOLOMON]: I’m sorry. [GRANDMOTHER]: Me? [COURT]: Yes, come on up closer, all of you. [GRANDMOTHER]: I’ve taken —. She’s always been one, she was in and out with this man, that man. She’d bring men in my home. She’s never worked. I bought her a car to go to work and she —. [COURT]: Okay. Well, what about the child though? [GRANDMOTHER]: The child, she didn’t take care of the child. She’d lay in the sun, shut this baby up in a trailer. She’d lay out. And I didn’t know all this till I was operated on last June and I found all this out, and —. [COURT]: How old is the child? [GRANDMOTHER]: She’s three and a half right now. [COURT]: Where is she now? [GRANDMOTHER]: She’s with the babysitter. [COURT]: Well, I mean, is she in your custody? [GRANDMOTHER]: She’s in my custody. [COURT]: How long has she been in your custody now? [GRANDMOTHER]: Well, she’s been in —. [COURT]: How long has the mother been gone? [GRANDMOTHER]: The mother left in July. [MOTHER]: August. [COURT]: Where did she go? [GRANDMOTHER]: She went to live with another man. She was —. [COURT]: Where? [GRANDMOTHER]: At West Green. [COURT]: Has she been back to see the child? [GRANDMOTHER]: No. She’s not called and asked for —. [COURT]: For seven months? [GRANDMOTHER]: Yeah. She’s not called and asked about the child. [COURT]: Are you telling the truth? [GRANDMOTHER]: Yes, sir, Your Honor —. [MOTHER]: Can I —? [COURT]: Is she telling the truth? [MOTHER]: I swear on the Bible, I’ve been over there. She would not let me see the child. [COURT]: Have you come up here lying to me? [GRANDMOTHER]: No ma’am — No, sir, I’ve not lied to you. [COURT]: Well, that’s what your daughter said; said you were lying. [MOTHER]: And I’ve never been under investigation from the welfare or anything. [GRANDMOTHER]: The only reason she’s never been investigated by the welfare —. [COURT]: I’m not asking that. You said she hadn’t visited the child. [GRANDMOTHER]: She’s not visited the child. [MOTHER]: I have —. [GRANDMOTHER]: She has not —. [COURT]: Has she tried to? [GRANDMOTHER]: No. [MOTHER]: Yes, sir. [GRANDMOTHER]: I have carried —. The only time that she has spent any time with the child, I carried her to the lady’s house right back there, and she was sick and I carried her up there and she visited with the child. I carried her a cake and some saltine crackers because she was sick. [COURT]: Is that the one time? [GRANDMOTHER]: One time. That’s the onliest time she’s spent any time with the child. [COURT]: Okay. What are you asking? [SOLOMON]: I’m asking for temporary and permanent custody to be changed to the grandmother. [COURT]: Okay. [SOLOMON]: This is the babysitter, Judge, that has kept the child some, if you want to hear from her. [COURT]: No. Do you want to add something else to it? [MOTHER]: Yes, I’ve been to the sheriff’s department several times, you know, trying to see how I go back to get my child, and I’ve talked to Loretta Parker way back in August and she told me I’d have to have her locked up, and I didn’t want to have my mama locked up (witness becomes emotional). [COURT]: To get custody of the child —. [GRANDMOTHER]: Why, your honor, she took —. [COURT]: I don’t —. All right. That’s all I need to hear. All right, we’ll grant you permanent custody. [SOLOMON]: Thank you, Judge. I have the Order. [COURT]: Give her some visitation now. Reasonable-type visitation rights. [SOLOMON]: All right, let me have the Order back then and I’ll put in some reasonable visitation. Judge, I can add some visitation to that. I don’t think I had put any in there. [COURT]: Yes, I want her to be able to have visitation. [SOLOMON]: Thank you. PROCEEDINGS CONCLUDED.”

The order presented by Solomon for the trial court to execute specified that the mother committed the certain unsavory acts and possessed the problems alleged by the grandmother’s petition, and the proposed order provided no visitation for the mother. Not to prove evidence but to show the dearth of evidence, we note that appellant in her brief contends that in concluding she had not tried to see her child, the trial judge evidently forgot that he himself had restrained her from seeing her child four months before the hearing, and that she tried numerous times to see her child but was refused by the grandmother. Appellant also asserts she herself lived with her child at her mother’s house from the time of the child’s birth until her mother threw her out.

Appellant’s arguments do not precisely follow her enumerations of error; we shall not address those enumerations in detail. Held:

1. Appellant contends the legislature’s new law (OCGA § 19-7-1 (b.1)) is unconstitutional where it purports to allow a parent to lose custody of a child to a third party by a showing of the best interests of the child. However, the Court of Appeals is not authorized to declare a statute unconstitutional. Commr. of Ins. v. Stryker, 218 Ga. App. 716, 719 (6) (463 SE2d 163). As we have quoted the transcript of the hearing below in its entirety, it is clear that no issue of constitutionality of this statute was raised in the trial court. See In the Interest of I. B., 219 Ga. App. 268, 276 (464 SE2d 865); Morton v. State, 206 Ga. App. 413, 414 (425 SE2d 336).

Decided November 7, 1996

Reconsideration denied December 11, 1996.

William R. Lawrence, Vicky O. Kimbrell, Phyllis J. Holmen, Lisa J. Krisher, for appellant.

Keith H. Solomon, for appellee.

Prior to enactment of OCGA § 19-7-1 (b.l), in a case involving a custody dispute between a parent and a third party, the trial court was required to first determine whether the parent has lost his or her parental rights pursuant to OCGA § 19-7-4, or is unfit pursuant to Georgia law. Villenueve v. Richbourg, 217 Ga. App. 354 (1) (457 SE2d 821), quoting Martini v. Jefferson, 213 Ga. App. 666 (445 SE2d 814) and citing Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471). We and the Supreme Court have repeatedly held that a court cannot terminate parental rights simply because it finds the child may have better financial, educational, or even moral advantages elsewhere. Carvalho, supra.

There was no evidence in this hearing either of the mother’s unfitness or the best interests of the child. Whether the case is adjudged under the “clear and convincing evidence of unfitness” standard which has been the law in cases involving a custody challenge by a third party (see In the Interest of A. D., 208 Ga. App. 438 (430 SE2d 809); In re M. M. A., 166 Ga. App. 620 (305 SE2d 139)) or under the new law creating a “best interests of the child” standard for third-party challengers to custody, there is no evidence warranting the actions of the trial court awarding custody of this child to the grandmother under any principle of law.

2. There was no sworn testimony of any kind. Whatever is the standard of law in these cases today, there is no evidence authorizing a finding of any kind. The sanction of an oath is essential to the reception of any oral evidence. OCGA § 24-9-60. “In this State an oath or affirmation is required of all witnesses, and unsworn statements are not treated as amounting to any evidence, except ‘in specified cases from necessity.’ [Cits.]” Huiet v. Schwob Mfg. Co., 196 Ga. 855, 859 (27 SE2d 743). No valid judgment could have been rendered on the unsworn statements made in this hearing.

Judgment vacated and case remanded for proper proceedings.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A2007.
    McDANIEL v. THE STATE.
    (479 SE2d 779)
    Decided December 11, 1996.

      Zimmerman & Associates, Keith F. Brandon, for appellant.

      Jerry Rylee, Solicitor, Inez G. D’Entremont, Assistant Solicitor, for appellee.
   Birdsong, Presiding Judge.

William Ransom McDaniel was arrested for driving under the influence in violation of OCGA § 40-6-391. The Georgia Department of Public Safety suspended appellant’s Georgia driver’s license. To his criminal prosecution for DUI, appellant filed a plea in bar claiming the prosecution constituted double jeopardy on account of the prior “punitive” administrative proceedings suspending his license. The trial court denied the plea in bar, and this direct appeal follows. Held:

We have repeatedly held that the suspension of a defendant’s driver’s license was not an act to which jeopardy attached. Haynes v. State, 245 Ga. 817 (268 SE2d 325); Shaw v. State, 239 Ga. 690, 692 (238 SE2d 434); Oliver v. State, 216 Ga. App. 76 (453 SE2d 746); State v. Steien, 214 Ga. App. 345 (447 SE2d 701); Deal v. State, 213 Ga. App. 131 (443 SE2d 713); Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650).

Recently, in Allender v. State, 222 Ga. App. 358 (474 SE2d 257), we were asked to rule that a denial of a plea of former jeopardy in a criminal prosecution for DUI following an administrative driver’s license suspension is not subject to direct appeal because such a plea is frivolous. “This we cannot do,” we held, “for the right of direct appeal of a denial of former jeopardy is . . . firmly established in Patterson v. State, [248 Ga. 875 (287 SE2d 7)].” Allender at 359 (1). We cannot hold there is no right of direct appeal of a denial of a plea in bar based on former jeopardy in a criminal prosecution following an administrative license suspension arising out of the same act; this is a legislative matter. However, in view of the fact that it is so firmly established that such a plea in bar is without merit, we can say this appeal is frivolous.

Accordingly, we hold only that the trial court did not err in denying appellant’s plea in bar.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.