text:
    A95A0133.
    CRESON v. THE STATE.
    (460 SE2d 83)
   Ruffin, Judge.

Bryan Creson was convicted by a jury of aggravated assault and appeals from the judgment of conviction and denial of his motion for new trial.

The record shows that at the time of the offense, Creson was living with the victim at her parents’ home. On the afternoon before the incident, Creson and the victim had an argument and Creson left the house to shoot pool and drink beer with his friends. Creson returned home at 2:15 the next morning, and the victim would not let him in the house. When Creson continued knocking, the victim opened the door, and after a short exchange of words between the two, Creson pulled out a gun and shot the victim in the head. The victim, screaming “he shot me,” ran down the hall to her parents’ bedroom. Creson followed the victim to the bedroom where her father took the gun away from him. When the police arrived, the victim was lying on the floor and Creson was kneeling over her. The officers retrieved the gun and found an empty shell casing and the bullet that struck the victim and exited her head.

After his arrest, Creson agreed to give a custodial statement concerning the incident. Prior to making the statement, Creson was read a form advising him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) which he signed stating that he had agreed to waive those rights. During the tape-recorded interview Creson admitted to firing the gun but claimed it was an accident. At trial, the custodial statement was admitted after a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

1. Creson asserts the trial court erred in admitting the custodial statement because prior to giving it, he told the detective “I can’t afford a lawyer.” Creson argues that this statement amounted to no less than an equivocal request for counsel which was ignored by the detective. He contends that under Hall v. State, 255 Ga. 267 (336 SE2d 812) (1985), the detective was required to ask only clarifying questions concerning his request for counsel before proceeding with the interview. However, the record shows that after the trial court ruled the statement was admissible and the State moved to introduce it into evidence, Creson’s attorney stated “I have no objection.” “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. . . . Acquiescence deprives him of the right to complain further.” (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 705 (4) (426 SE2d 238) (1992).

Moreover, even if Creson’s attorney had objected to admission of the statement, any error committed by the trial court would have been harmless. “ ‘A constitutional error is harmless, if there is no “reasonable possibility that the evidence complained of might have contributed to the conviction[.]” [Cit.]’ ” Vaughn v. State, 248 Ga. 127, 131 (2) (281 SE2d 594) (1981). “In this case, [Creson’s] testimony at trial was substantially the same as the statement which he made to police following his arrest.” Donaldson v. State, 249 Ga. 186, 190 (5) (289 SE2d 242) (1982). Both in the statement and at trial Creson testified that he had an argument with the victim; that he had been out shooting pool and drinking beer earlier in the evening; that he returned home and entered the house with the gun in his hand; and that after the victim asked him where he had been, the gun unexpectedly went off. “Under the circumstances, the admission of the statement, even if error, would be harmless error.” Id.

2. Creson contends he was denied effective assistance of counsel on several grounds. However, Creson’s trial counsel was not heard on this issue at the motion for new trial. Because two of the grounds cannot be resolved without such testimony, we decline to address the merits of those enumerations. Williams v. State, 251 Ga. 749 (20) (312 SE2d 40) (1983); Davis v. State, 203 Ga. App. 227 (4) (416 SE2d 771) (1992).

The third ground alleged is that trial counsel was ineffective in that he inferentially admitted the elements of aggravated assault in his opening statement. While the record shows that Creson’s trial counsel stated there was a shooting, he also stated it was an accident, and he was merely informing the jury that Creson would testify as such. In light of the overwhelming evidence that Creson shot the victim, which included Creson’s own custodial statement, we cannot conclude that his trial counsel’s performance was deficient in this instance. See Baker v. State, 250 Ga. 671 (2) (300 SE2d 511) (1983).

Decided May 9, 1995

Reconsideration denied July 27, 1995

Paul McGee, for appellant.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Amy H. McChesney, Assistant District Attorneys, for appellee.

Neither was Creson’s trial counsel ineffective in failing to object to the court’s jury charges on voluntary intoxication as no excuse for a crime and on aggravated assault. The record shows that both charges were supported by the evidence. Creson admitted drinking up to six beers immediately before the incident, and although he maintained the shooting was an accident, the overwhelming evidence showed Creson shot a gun at the victim’s head. Under these circumstances, neither charge was erroneous, and we cannot say that trial counsel’s performance was ineffective. Chandler v. State, 213 Ga. App. 46 (2) (443 SE2d 679) (1994); Sydenstricker v. State, 209 Ga. App. 418 (2) (433 SE2d 644) (1993).

3. Finally, Creson argues the evidence was insufficient to support the verdict. “A person commits the offense of aggravated assault when he assaults with a deadly weapon, which, when used offensively, is likely to or actually causes serious bodily injury. OCGA § 16-5-21 (a) (2). The act of intentionally firing a gun at another, in the absence of justification, is sufficient to support a conviction for aggravated assault under this statute. [Cit.] The evidence adduced below authorized a rational trier of fact reasonably to find proof of [Creson’s] guilt of aggravated assault beyond a reasonable doubt, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). [Cit.]” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675) (1993).

Judgment affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A0693.
    LABAT v. BANK OF COWETA.
    (460 SE2d 831)
   Ruffin, Judge.

Edwina Labat appeals from the trial court’s grant of summary judgment to the Bank of Coweta (“the bank”).

On April 19, 1993, Labat went to the bank to purchase a cashier’s check which she intended to send to Superior Pants Company to satisfy an outstanding debt. Labat first deposited a $300 third-party check, payable to her husband, into a joint account she maintained with her minor daughter. The bank credited $300 to the account. Labat then gave the bank $1,084.16 in cash, which included a $6 cashier’s check fee, to purchase a cashier’s check for $1,078.16. Rather than issuing Labat a cashier’s check, the bank issued a bank draft on its account with Firstar Bank of Bloomington, Minnesota, made payable to the Superior Pants Company. Labat’s name was referenced under the bank’s name on that check which was issued for $1,078.16. Labat then mailed the check to Superior Pants.

On April 23, 1993, the third-party check was returned to the bank stamped, “ACCOUNT CLOSED.” On the same day, the bank stopped payment on the bank draft, notified Labat, and further advised Labat to come to the bank to get money the bank owed her. When she went to the bank the following day, Labat was given two checks. One check was issued for $369.48, representing the balance from the bank draft less $300 for the returned third-party check; $375.56, the balance due on a personal loan previously made by the bank to Labat; and other expenses chargeable to the account. The bank closed the joint account and issued Labat a second check for the amount remaining in the account.

On April 28, 1993, without knowledge of the stop payment order, Superior Pants presented the bank draft to the bank for payment. The bank dishonored the check, stamped the draft “ITEM RETURNED REFER TO DRAWER,” and returned the check to Superior Pants. Labat later advised the bank that the personal loan was being paid through her bankruptcy plan and that the deduction from the bank draft for the loan violated bankruptcy automatic stay provisions.

Labat then commenced the instant action alleging that the bank tortiously interfered with her business relationship with Superior Pants, wrongfully closed the joint account, and wrongfully set off the balance due on her personal loan in violation of the automatic stay in her bankruptcy case. The bank moved for summary judgment on the grounds that it was authorized to stop payment on its own bank draft because of a partial failure of consideration; the trial court had no jurisdiction over Labat’s bankruptcy claims; Labat’s account was lawfully closed; and Labat’s claim for tortious interference had no basis in fact. Labat then amended her complaint to allege, in addition, that the bank interfered with her legal and professional contractual relations; committed fraud; wrongfully levied and converted her child’s funds; intentionally inflicted emotional distress on her and her family; breached its account agreement; trespassed upon her chattel; solicited false testimony; conspired to force her attorneys to withdraw (their) representation; conspired to conceal wrongful conversion and other offenses; breached a third-party beneficiary contract and the express warranty for the issued check; breached its fiduciary duty; fraudulently induced her to purchase a bank draft; and violated the RICO Act. In its order granting the bank’s motion for summary judgment, the trial court struck Labat’s untimely response to the motion and dismissed her amended complaint. This appeal followed.

“ ‘In order to prevail on a motion for summary judgment (pursuant to OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. . . .’ [Cit.] Furthermore, ‘the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt. The movant has the burden to prove the non-existence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence.’ [Cit.]” Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993).

1. We first consider Labat’s contention that the trial court abused its discretion in denying her motion for an extension of time to file a response to the bank’s motion for summary judgment. Although the record contains no order denying an extension of time, we will consider this issue as it is implicit in the court’s striking of Labat’s response to the motion because the response was untimely.

The bank served its motion for summary judgment by registered mail on July 20, 1994. Therefore, a response to the motion was due on Monday, August 22, 1994, because the thirtieth day fell on a Sunday. Since Labat did not file her response until August 24, 1994, and she was not entitled to the three-day extension provided in OCGA § 9-11-6 (e) because the motion was served by registered mail, the response was untimely filed. See Uniform Superior Court Rule 6.2; Favors v. Travelers Ins. Co., 150 Ga. App. 741, 747 (2) (258 SE2d 554) (1979).

Labat explained that her response was not filed on time because she forgot that her attorney instructed her to stay in town until he filed her response. She stated she went to Kentucky on a previously scheduled business trip, for a “few days out of Georgia to be with [her] family, to conduct some very important business, and to for a short time, forget [her] pain and ease [her] mental anguish.” We have held that the “press of business” does not constitute excusable neglect which would justify the untimely filing of defensive pleadings. See Snow v. Conley, 113 Ga. App. 486, 489 (148 SE2d 484) (1966). Hence, under the circumstances of this case, we find no abuse of discretion in the striking of Labat’s response because it was untimely filed. See Wimberly v. Karp, 185 Ga. App. 571 (1) (365 SE2d 131) (1988).

2. Labat also argues the trial court erred in finding there was no genuine issue of material fact as to whether the bank was authorized to stop payment on her cashier’s check because of an alleged partial failure of consideration. Labat alleged that the bank’s wrongful dishonor of the bank draft without legal excuse damaged her business relationship with Superior Pants. Pretermitting a determination as to whether the bank was justified in stopping payment on the bank draft, we find that Labat’s claim for tortious interference with business relations must fail because there is no evidence in the record which demonstrates that Labat suffered any financial injury as a result of the bank’s action, one of the elements of proof in establishing a claim for tortious interference.

In order to recover on a claim “ ‘for tortious interference with business relations the evidence must show the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.’ [Cit.j Subjective good faith, standing alone, is not an absolute defense to a claim of tortious interference with business relations, just as ‘malice’ within the meaning of such a claim need not be prompted by bad faith or personal dislike. ‘ “The term ‘malicious’ or ‘maliciously’ means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential.” [Cit.]’ [Cits.]” Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447 (2) (451 SE2d 87) (1994). Because there was no evidence of financial injury, the trial court did not err in granting summary judgment on this claim.

The foregoing renders it unnecessary to consider Labat’s second enumeration of error in which she contends the trial court erred in finding as a matter of law that the bank draft was not purchased with cash.

3. Labat contends the trial court erroneously concluded that as a matter of law it had no jurisdiction over the bank’s violation of the automatic stay in bankruptcy. “Under 28 USC § 1334 (d), the federal district court [acting through the bankruptcy court] has exclusive jurisdiction over all the debtor’s property as of the date of filing in bankruptcy [court] and over all property of the estate.” Carver v. Carver, 954 F2d 1573, 1577 (1) (11th Cir. 1992). Inasmuch as Labat contends the personal loan was property of the bankruptcy estate, we find no error.

4. Labat contends the trial court erred in granting summary judgment on her amended verified complaint. Since the trial court did not set forth in its order the specific basis for the grant of summary judgment to the bank and its dismissal of Labat’s amended complaint, we must look to the grounds set forth in the bank’s motion to determine which allegations in the complaint were pierced as a matter of law.

In its motion for summary judgment, the bank contended it was justified in stopping payment on the bank draft because of a partial failure of consideration; the trial court had no jurisdiction over Labat’s bankruptcy claims; Labat’s claim for tortious interference had no basis in fact; and Labat’s joint account was lawfully closed. Since we have already addressed the first three grounds, we need only consider the remaining ground.

(a) As to whether the bank lawfully closed the joint account, the account agreement provided as follows: “The account may be closed by the financial institution at any time by mailing a notice to the depositor with a check for the balance, and the financial institution shall not be liable for refusing to pay any check presented after said account is so closed.” The evidence shows that the bank failed to provide notice by mail, as required in the agreement. The bank telephoned Labat on the day the account was closed and advised her to come to the bank to get money the bank owed her. The following day at the bank, she was informed in person that the account had been closed, and she was given a check for the balance in the account. The bank concedes that it did not provide notice by mail but argues that by notifying her in person and giving her a check for the entire balance remaining in the account, it substantially complied with the agreement. We agree.

“Our general rule with respect to compliance with contract terms is not strict compliance, but substantial compliance. At common law a strict and literal performance of the terms of the contract was required; but by rules of equity, either adopted by statute or recognized by the courts, a substantial compliance with the terms of the contract is sufficient. . . .” (Citations and punctuation omitted.) Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 363 (433 SE2d 346) (1993). See also OCGA § 13-4-20. The bank telephoned Labat on the day the account was closed. Although the bank failed to reach her that day, she was notified the following day in person and given a check for the balance in the account. This notice, in fact, exceeded the notice required in the agreement. Therefore, the trial court did not err in granting summary judgment on this ground.

(b) The bank did not amend its motion for summary judgment to address the additional claims asserted against the bank in Labat’s amended complaint. Therefore, the trial court was not authorized to consider and grant summary judgment as to those claims that did not relate to the four grounds set forth in the bank’s motion for summary judgment. Accordingly, summary judgment granted on those additional claims must be reversed.

Decided July 13, 1995

Reconsiderations dismissed July 27, 1995

Ralph J. Villani, for appellant.

Rosenzweig, Kam, Jones & MacNabb, Joseph P. MacNabb, for appellee.

5. We need not further consider Labat’s remaining enumerations of error since we have already addressed them in connection with other enumerations.

Judgment affirmed in part and reversed in part.

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


author: Birdsong, Presiding Judge.

text:
    A95A1311.
    DENHAM v. THE STATE.
    (460 SE2d 869)
   Birdsong, Presiding Judge.

Charles Wesley Denham appeals his conviction of possession of cocaine; he enumerates two errors: improper jury selection and insufficiency of the evidence. Held:

1. Appellant contends the verdict of guilty was contrary to the evidence produced at trial; this enumeration is without merit. On appeal, the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).

The arresting officer testified that pursuant to a report of a drug transaction received over his radio, he went to the location and obtained a voluntary consent to search a pickup truck from the vehicle owner. Appellant had been sitting on the passenger side of the truck; he spontaneously identified, as his property, a key pouch containing cocaine when it was found under the passenger side of the vehicle during the search. He subsequently made a voluntary statement to the police claiming his girl friend had prior possession of his key chain, denying knowledge of the presence of the cocaine in the pouch, and stating he had claimed ownership of the pouch (at the crime scene) because he did not want his friend to get charged. The vehicle owner testified the cocaine was not his. Transcript review reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts that the method of selecting the jury was improper in his case. Specifically, he claims: “The court placed a panel of 34 jurors on the State, requiring the State to execute 6 peremptory strikes. The remaining 28 jurors were placed on the appellant who was required to execute his 12 peremptory strikes silently also. Appellant did not object to this method of jury selection at the time of trial in that the method was so bizarre that appellant was caught unawares, and did not wish to challenge the authority of the trial judge in front of the panel of jurors.”

(a) The record reflects that, although the State timely objected to this method of selection on the grounds it placed the State at a disadvantage in jury selection, appellant failed to object thereto. By failing to object timely to the method of jury selection, appellant failed to preserve this issue for appellate review. Atkins v. Martin, 229 Ga. 815, 816 (3) (194 SE2d 463); see Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691); Mundy v. State, 259 Ga. 634 (5) (385 SE2d 666).

Additionally, when asked by the trial court whether appellant had any objection to this jury selection procedure, appellant’s counsel expressly stated, “No, Your Honor.” Thus not only did appellant fail to object timely to the jury selection procedure, he expressly acquiesced in the trial court’s ruling. Appellant’s acquiescence provides an additional reason why this issue has not been preserved for appellate review. Harmon v. State, 259 Ga. 444 (3) (383 SE2d 874); compare Winfield v. State, 210 Ga. App. 849, 851 (1) (437 SE2d 849); see Easterwood v. State, 259 Ga. 164 (2) (377 SE2d 857). (We also note that by appellant’s own admission in its brief, the failure to object and subsequent acquiescence were substantially due to a legitimate trial tactic decision, that is, appellant “did not wish to challenge the authority of the trial judge in front of the [jury].”)

For each reason above, this enumeration is without merit.

(b) Peremptory strikes of jurors and the method of exercising such strikes are procedural rather than substantive in nature; “[t]he exercise of peremptory strikes has long been recognized as a procedure created to assist litigants in obtaining a fair and impartial jury and not an independent substantive right.” Barner v. State, 263 Ga. 365, 367 (4) (434 SE2d 484). At least one leading authority on Georgia criminal trial practice has recognized that there exist two general procedural methods of striking a jury in a criminal case involving a single defendant: “If either party insists upon it, an individual voir dire examination of all the jurors on the panel must be conducted before any jurors are stricken. This practice applies to both felony and misdemeanor cases. Where this method is used, the actual striking is done in the same manner as that described below with the exception that all voir dire questions are asked before the striking begins. The second way of striking a jury is to have the name of a potential juror called and for the state, followed by the defendant, to ask the juror voir dire questions. The state then decides whether to reject or accept the juror. If the juror is rejected, he is excused; but if he is accepted by the state, he is then passed on by the defendant, who either accepts or excuses him. If the defendant accepts a juror, the state may not strike or excuse him. The process continues until 12 jurors, plus such alternates as the judge may determine, are accepted.” Ga. Crim. Trial Prac. (1994 ed.), § 18-27.

Decided July 27, 1995.

Rodney L. Allen, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

Prudence dictates that established jury selection procedures be followed to ensure that neither the defendant nor the State is placed at an unfair disadvantage in obtaining a fair and impartial jury.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Birdsong, Presiding Judge. Smith, Judge,

text:
    A95A0122.
    HUNDLEY et al. v. GREENE et al.
    (461 SE2d 250)
   Birdsong, Presiding Judge.

This is an appeal from the superior court’s confirmation of an arbitrator’s award in a construction dispute between Hundley and Butt, who are the homeowners, and the contractor Stephen Greene individually and d/b/a Stephen Greene Construction. The arbitrator found favorably to Greene and two independent contractors who were not parties to the arbitration agreement and did not participate in the arbitration.

Appellants in their statement of fact cite evidence of several claims, viz.: that Greene charged appellants more than the contract price; that when appellants had already paid Greene more than the contract price the house was incomplete and so defectively constructed that appellants had to fire Greene; that completion of the house and repair of the defective construction will cost about $50,000 above the maximum agreed price; that Greene charged appellants for 7,076 finish bricks and 2,300 fill bricks which are missing, according to appellants’ expert who counted the bricks in the house, and that this evidence was not refuted by Greene; that Greene charged appellants for 400 pieces of lumber which were not used in the house; that an independent contractor double-billed appellants for footings; that Greene’s painter sprayed paint over mildewed siding; that two months after being fully paid, the framer filed a materialmen’s lien, although the house is out-of-square and the county issued a stop-work order because the framer did not complete the job properly; that Greene built the brick underpinning two feet lower than required by contract, with ensuing water problems; that Greene never completed trim work; that although Greene guaranteed the floors, an inspection nine days after he was fired revealed the flooring had cracked, which will cost $12,000 to $18,000 to repair. Appellants specifically describe, with citations to the record, those and other defects too numerous to recount here.

The trial court found, however, that as appellants offered “no independent evidence” of fraud, corruption or misconduct in the arbitrator’s award or that the arbitrator overstepped his authority, the trial court had no authority to review and “rehash” the award and that it was the “duty” of the trial court to confirm it, citing Raymer v. Foster & Cooper, Inc., 195 Ga. App. 200, 202 (393 SE2d 49). Appellants contend the arbitrator exceeded his authority by failing to adhere to rules of contract construction, and by awarding Greene a bonus and making awards to persons who were not parties to the construction contract and arbitration agreement and who declined to participate in the arbitration. Held:

1. Appellees Greene move to dismiss the appeal as frivolous. They contend the appeal does not challenge the judgment within the framework of OCGA § 9-9-13 (b) as to grounds for vacating an arbitration award. The appeal is not frivolous.

2. The trial court is required by law to accept the arbitrator’s findings of fact and may vacate the award only “if the court finds that the rights of [a] party were prejudiced by: (1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) A failure to follow the procedure of this [law], unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.” OCGA § 9-9-13 (b).

Appellees Greene are incorrect in asserting that the evidence in an arbitrated case is irrelevant to show any ground named in OCGA § 9-9-13 (b) for vacating the award. It is true that an appellate court has no authority to weigh evidence when the factfinder has ruled on that evidence, but that rule hinges on the requirement that there be evidence to support the findings in the first place. See, e.g., OCGA § 5-4-12 (b) which sets a “substantial” evidence standard for the superior court’s certiorari review of “any inferior judicatory” or a case heard before “any person exercising judicial powers” (OCGA § 5-4-3); and see, e.g., OCGA § 50-13-19 (h) (5) and (6) which allows review of administrative rulings to determine whether an administrative decision is “[cjlearly erroneous in view of the reliable, probative, and substantial evidence on the whole record” or is so “[arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” In other cases where the legislature has made no such direction, the lower judicatory’s findings may be reversed or vacated as not supported by “any evidence.” See Green Room v. Confederation Life Ins. Co., 215 Ga. App. 221 (1) (450 SE2d 290). Whenever any award is not supported by any evidence it is “clearly erroneous.” Bd. of Equalization v. York Rite &c. of Savannah, 209 Ga. App. 359 (433 SE2d 299); Covrig v. Miller, 199 Ga. App. 864, 865 (406 SE2d 239).

Arbitration cases are controlled exclusively by the Georgia Arbitration Code, OCGA § 9-9-1 et seq., but they are not exempt from the general requirement that a finding of fact be supported by evidence. See Raymer, supra at 202 (1) (c); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 235-237 (335 SE2d 708). In Cotton States at p. 235, we addressed a contention that the arbitrators’ award was “totally inconsistent with the overwhelming weight of the evidence.” We held that “[t]he record contains conflicting testimony. . . . Nor [does the evidence] unequivocally support a finding of liability by Nunnally. . . . [The arbitrators] had province to judge the credibility of the witnesses and the weight of the evidence and their apparent judgment is supported by the evidence. See Cartledge v. Cutliff, 21 Ga. 1 (1857).” (Emphasis supplied.) Id. at 235-236. In Division 4 of Cotton States (pp. 236-237), we addressed a contention that the trial court erroneously applied an “any evidence” standard rather than the statutorily mandated one, and we concluded that it was not necessary to determine whether the trial court erroneously applied an “any evidence” standard of review, since the trial court did not depart from the statutory standard of review. But we also held the trial court made findings of fact which were “not clearly erroneous and indeed, are supported by the record.” Id. at 237. In Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (452 SE2d 188), we cited the general rule that “ ‘an arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law.’ Bartlett v. Dimension Designs, 195 Ga. App. 845, 848 (395 SE2d 64) (1990), overruled on other grounds, Pace Constr. Corp. v. Northpark Assoc., 215 Ga. App. 439 (450 SE2d 828) (1994).” (Emphasis supplied.) An award is “completely irrational” if it is not supported by evidence.

As the Supreme Court concluded in the early case of Cartledge v. Cutliff, supra, it defies common sense to say courts have no power to review an arbitration award which does not comport with the law. We think it equally defies common sense to say that an award which is not supported by any evidence, and is thus clearly erroneous and completely irrational or amounts to fraud, nevertheless comports with the law and must be affirmed by the courts. The legislature, in naming the grounds for vacating an arbitrator’s award, did not intend to elevate the powers of arbitrators above the powers of courts of law, administrative courts and juries.

The function of the trial court in proceedings to confirm or vacate an arbitration award is severely limited “in order not to frustrate the purpose of avoiding litigation by resorting to arbitration.” Cotton States, supra at 236-237 (4). To that end, the sufficiency of evidence is not subject to judicial review in arbitration cases, but if an arbitration award is not supported by any evidence, it is clearly illegal. See 5 AmJur2d, Arbitration and Awards, § 145. The ordinary requirement that arbitrators’ awards be supported by some evidence does not frustrate that purpose, and no party has a right to an award based on no evidence. Nothing in OCGA § 9-9-13 prohibits a party from showing that he was prejudiced in a manner named in OCGA § 9-9-13 (b) because the findings are not supported by any evidence. The powers of an arbitrator do not include power to issue clearly erroneous or completely irrational findings of fact, for this would deprive a party of due process and would prejudice him within the meaning and spirit of § 9-9-13 (b). A finding of fact which is not supported by any evidence is clearly erroneous and “completely irrational” and is therefore a finding made outside the authority of the arbitrator, or is fraud or tainted by partiality. See OCGA § 9-9-13 (b) (1), (2) and (3). If the courts are required to accept and confirm an arbitrator’s award even if it is not supported by any evidence, the arbitrator’s powers would surpass those of any court of law which is bound to limit its findings to the evidence, would surpass those of this court and the Supreme Court, and would amount to unlimited power, including power to cloak fraud in a mantle of “factfinding.”

In asserting that such unlimitable power is the law, appellees and the trial court rely on a reference in Raymer, supra at 202 (1) (c) to a party’s attempt to “relitigate and reargue the extensive evidence” presented at arbitration. However, this was not a statement that we have no authority to review evidence decided by an arbitrator. The statement was made only in the expressly stated context that the Raymer arbitrators’ judgment “[was] supported by the evidence.” (Emphasis supplied.) Id., citing Cotton States, supra.

With respect to the dissent, arbitration is a unique process and the parties do waive many rights, but the right to have his case judged by the evidence is a right not waived by any party. Arbitration is part of the “judicial process,” for the legislature made arbitration subject to judicial review on the application of any party. OCGA §§ 9-9-12 through 9-9-16. An application to arbitrate may be made to superior court (OCGA § 9-9-4) and the final award is reviewed by the courts. OCGA § 9-9-12 et seq. Under OCGA §§ 9-9-8 and 9-9-9, arbitrating parties have rights of subpoena power, discovery, and cross-examination, but these rights are pointless if an arbitrator can with impunity issue an award not supported by any evidence. However liberal the powers of an arbitrator, they do not arise to the power to force the courts to affirm awards not based on any evidence. A court may not reject the arbitrator’s findings merely because it disagrees with them, and it may not examine the sufficiency of the evidence (see Cotton States, supra at 235-236), but if there is no evidence to support an award, it is “completely irrational” and it is an illegal award. So long as arbitration awards are subject to review of this court, we must respond to a showing that they are not supported by any evidence, unless the legislature decrees otherwise in legislation held constitutional.

According to the statement of facts and citations to the record by appellants, this award is “completely irrational” (Amerispec Franchise, supra) and appellees have not shown that it is supported by any evidence.

3. In their appellate brief, appellees Greene say they disagree with appellants’ statement of facts, but, in violation of Court of Appeals Rule 27 (b) (1), they point out no material inaccuracy or incompleteness in appellants’ statement of fact and they provide no additional statement of facts. Further, while citing no evidence to dispute appellants’ statement of facts, appellees Greene assert they “[do] not consent to a decision of this case on those portions of the transcript selectively gleaned by appellants.” See Rule 27 (b) (1).

Appellees’ reason for disdaining to refute appellants’ statement of facts is that, according to appellees, evidence is irrelevant to a consideration of the grounds for vacating an arbitrator’s award stated in OCGA § 9-9-13 (c). The legislature has never made such a pronouncement and, as we noted in Division 2, could not reasonably have intended to give arbitrators the unlimited power such a rule would create.

Appellees Greene may not dispute appellants’ statement of facts without following the requirement of Court of Appeals Rule 27 (b) (1) to “point out any material inaccuracy or incompleteness of statement in [appellants’ brief or to cite] such additional parts of the record or transcript [as are] deemed material.” According to Rule 27 (b) (1), if appellees fail to point out such material inaccuracy or incompleteness and fail to provide an additional statement of fact and cite additional material evidence, they will be held to have consented to a decision of the case on the statement made by the appellants. And, unless appellees follow Rule 27, they have no right to assert they “[do] not consent to a decision of this case on those portions of the transcript selectively gleaned by appellants.” As long as appellants’ statement of facts is based on evidence cited in the record, we will not disregard it merely on an assertion that it is “selectively gleaned,” for it is not this court’s duty to sift the record on behalf of a party to sustain that party’s position (see Baker v. NEI Corp., 144 Ga. App. 165, 167 (241 SE2d 4)); if appellants’ statement does not reflect the evidence or, as against a showing that the award is not supported by evidence, if there is evidence to support the award, it is appellees’ duty to show it.

As appellees give no statement of fact pointing out inaccuracies or incompleteness in appellants’ statement of facts and have made no citations to the record, they are deemed to have consented to appellants’ statement of facts, pursuant to Rule 27 (b) (1). Parties may not correct fatal deficiencies in their original brief by filing supplemental briefs. MOM Corp. v. Chattahoochee Bank, 203 Ga. App. 847, 849 (418 SE2d 74).

Appellants having shown that the award is not supported by the evidence and is completely irrational, and the appellees having cited no evidence in support of the award, we find the arbitrator based its award on findings which are not supported by any evidence and are therefore outside the evidence. Although the legislature may deem that the standard of review may be higher, it is clear that an award must at least be supported by some evidence and as the award in this case is not supported by any evidence, it is clearly erroneous. At the very least it oversteps the arbitrator’s authority or shows partiality. OCGA § 9-9-13 (b) (2), (3).

4. The arbitrator erred in entering findings and an award in favor of non-parties with whom appellants had no arbitration agreement, who refused to participate in the arbitration, and against whom appellants could assert no counterclaim and were deprived of full rights of discovery and confrontation.

OCGA § 9-9-2 (c) provides that the arbitration law shall apply to all disputes in which “the parties thereto have agreed in writing to arbitrate.” See also OCGA § 9-9-9. The arbitrator failed to follow procedure (OCGA § 9-9-13 (b) (4)) and exceeded its authority by issuing an award to persons who were not parties to the arbitration agreement (see Bank South v. Howard, 264 Ga. 339, 340, fn. 5 (444 SE2d 799)) and who did not join the arbitration. Id. at (3); see Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701 (308 SE2d 830).

The superior court is directed to vacate the arbitrator’s award and to proceed according to OCGA § 9-9-13 (c).

Judgment reversed and remanded.

McMurray, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Beasley, C. J., concurs in judgment only. Andrews and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I must respectfully dissent.

1. I cannot agree with the majority that the superior court erred in confirming the arbitrator’s award. The position taken by the majority is appealing because it is steeped in judicial tradition: It is difficult to imagine that this court properly might affirm a decision unsupported by evidence. Arbitration, however, is a unique procedure.

The purposes for which parties agree to arbitration vary from one case to another, but in general, arbitration is used to circumvent the time and expense consumed by the judicial process. Legal rights do not govern its outcome; the parties agree to waive these rights in return for the swift resolution of a dispute by extralegal means. Since it is not, strictly speaking, part of the judicial process, the rules applicable to that-process do not apply.

Our legislature recognized this, setting forth in OCGA § 9-9-13 very limited grounds upon which such an award might be disturbed. An arbitrator’s award may be vacated only when fundamental procedural defects exist in the process itself: when corruption, fraud, misconduct, or partiality on the part of the arbitrators is shown, or when the arbitrators have exceeded the bounds of their agreed-upon authority or failed to execute it completely. “The fact that the relief was such that it could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award.” OCGA § 9-9-13 (d).

The courts of this state have repeatedly recognized the limited role assigned to the judiciary in the arbitration process. “ ‘The function of the trial court in proceedings to confirm or vacate an arbitration award should be severely limited in order not to frustrate the [entire] purpose of avoiding litigation by resorting to arbitration.’ [Cit.]” Amerispec Franchise v. Cross, 215 Ga. App. 669, 670 (452 SE2d 188) (1994). OCGA § 9-9-13 is a reflection of this policy. Id.

Arbitration fills needs of parties unmet by litigation. It has been recognized and encouraged by the legislature as a worthy extrajudicial process. If we now impose upon this special procedure standards not contemplated by the legislature that are applicable only to proceedings judicial in nature and that expand a trial court’s discretion to vacate an arbitrator’s award, we frustrate the very purpose of binding arbitration. In my view, this accomplishes no service to the bench, the bar, or the litigants.

Appellees rely upon the statutory grounds enumerated in OCGA § 9-9-13, and do not address the evidence in this case. This approach leads the majority to conclude that the award was unsupported by “any evidence.” I cannot agree that appellees’ understandable failure to address the evidence warrants this conclusion. Because none of the procedural defects enumerated in OCGA § 9-9-13 was raised in this case, the superior court ruled it was duty-bound to confirm the award. I agree and would affirm.

2. The particular facts of this case also require that we affirm the judgment below. The arbitrator’s award in this case actually favored appellants on some points. The record indicates appellants have accepted the bounty flowing from this portion of the award. No precedent exists for allowing a party to “have its cake and eat it too” by accepting the favorable portion of an arbitrator’s award, as did appellants here, while challenging the remainder of the award.

3. OCGA § 9-9-2 (c) provides, in pertinent part, that the Georgia Arbitration Code, OCGA § 9-9-1 et seq., applies “to all disputes in which the parties thereto have agreed in writing to arbitrate.” The superior court found that all parties to the arbitration, including the appellants, agreed to be bound by the arbitrator’s decision on certain disputes pertaining to the non-parties. Since the parameters of this arbitration were therefore set by agreement, I cannot agree with the conclusion in Division 4 of the majority opinion that the arbitrators erred by making awards to non-parties.

I am authorized to state that Judge Andrews joins in this dissent.

On Motion for Reconsideration.

On motion for reconsideration, appellees Greene insist that arbitration is not part of the judicial process and is not subject to judicial review of evidence, because an arbitration award is subject to judicial review only if application is made by a party for confirmation, vacation, or modification. OCGA § 9-9-12. But so long as an arbitration award is appealed, and whenever an arbitration award is appealed, it is part of the judicial process. Parties may choose to arbitrate their causes without recourse to the courts, but if the award is made subject to judicial approval, we cannot approve an award which is not supported by evidence, where that challenge is a subject of the appeal.

Decided July 13, 1995

Reconsideration denied July 28, 1995

Eugene D. Butt, for appellants.

That the legislature made the Arbitration Act part of the Civil Practice Title rather than of the Courts Title does not change the nature of the appeal process. It is not in the power of the legislature to remove the judiciary’s power and duty to ensure that awards on claims in its purview are supported by evidence and are, therefore, lawful. Whatever the defects or omissions in the Arbitration Act, the legislative branch of government does not have the power to force this court to affirm awards which are not supported by evidence. It would be a gross dereliction of our judicial duty, if not fraud, to affirm such awards.

The fact that arbitrators are not required by the legislature to make findings of fact, or the fact that there are no findings of fact, does not alter the requirement of this court that there be evidence to support an award appealed to it, whenever that challenge is made. The fact that no findings of fact are required does not prevent an appellant from showing the award is “completely irrational,” fraudulent or partial under OCGA § 9-9-13 (b) because it is not supported by evidence.

Appellees Greene have now undertaken to cite examples of supporting evidence. It is too late. Appellees cited no evidence, in violation of our rules, because their intent was to force this Court to hold that courts have no authority to review an award appealed to it for supporting evidence. What the legislature decrees, we must follow if it is a constitutional decree, but the legislature cannot encroach on our judicial powers. Every party is entitled by the Constitution to due process of law. Our duty is to provide due process even if the legislature forgets to allow for it. An award not supported by evidence is a failure of due process, and we cannot affirm it.

Motion for reconsideration denied.

Husby, Myers & Stroberg, Roland H. Stroberg, Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, for appellees.

       See also Goodrich v. Southland Homes Corp., 214 Ga. App. 790 (1) (449 SE2d 154) (1994) (where none of statutory grounds exists for vacating arbitrator’s award, court must confirm); Bartlett v. Dimension Designs, 195 Ga. App. 845, 848 (395 SE2d 64) (1990), overruled on other grounds Pace Constr. Corp. v. Northpark Assoc., 215 Ga. App. 438 (450 SE2d 828) (1994) (arbitration award must be upheld unless “completely irrational” or in “manifest disregard of the law”); Raymer v. Foster & Cooper, Inc., 195 Ga. App. 200 (393 SE2d 49) (1990) (grounds enumerated in former OCGA § 9-9-93 (now OCGA § 9-9-13) are exclusive grounds upon which arbitration award may be vacated); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (4) (335 SE2d 708) (1985) (court’s authority to vacate arbitration award severely limited and governed by statute).


author: McMurray, Presiding Judge.

text:
    A95A0177, A95A0353.
    ROSEBERRY et al. v. BROOKS, M. D., et al.; and vice versa.
    (461 SE2d 262)
   McMurray, Presiding Judge.

In this action for medical negligence, plaintiff Gary B. Roseberry is the representative of the estates of his wife, Allegra Roseberry (deceased), and that of Amy Roseberry (deceased), a “twenty-three week gestation child, . . . whose life was terminated during the twenty-third week of term of the deceased mother’s pregnancy.” The complaint alleges that Allegra Roseberry was admitted to DeKalb General Hospital on March 21, 1988, and discharged on March 24, 1988, with a diagnosis of “sclerosing cholangitis.” On June 5, 1988, while she was under the primary care of defendant Walter S. Brooks, M. D., Allegra Roseberry was diagnosed as having “a malignant disease known as cholangiocarcinoma,” i.e., liver cancer. Although Allegra Roseberry had informed Dr. Brooks on June 3, 1988, “that her last menstrual period occurred January 14, 1988, [he] failed to perform a pregnancy test, failed to perform a pelvic examination and, as a result, failed to diagnose [Allegra Roseberry] as being pregnant.” Allegra Roseberry reentered the hospital on August 2, 1988, for treatment of her liver cancer, where, after a sonogram examination, “it was determined that [she] was twenty-three weeks pregnant.” Dr. Brooks, “a gastroenterologist, without consultation of a pediatrician or perionatologist, recommended that [Allegra Roseberry] consent to a clinical abortion to be performed by Defendant [Young W. Ahn, M. D.]. . . .” Allegedly “at the direction of her physicians, after being informed that the unborn child would be ‘doomed,’ and the stress of the pregnancy was impairing her health, [Allegra Roseberry] consented to a clinical abortion.” On August 9, 1988, “less than four days [after] the clinical abortion,” Allegra Roseberry herself died of gram-negative sepsis (infection). Defendants Dr. Brooks, Dr. Ahn, and The Emory Clinic, a Georgia partnership allegedly liable for the negligence of Dr. Brooks and Dr. Ahn under the doctrine of respondeat superior, denied the material allegations and the case was tried before a jury.

In support of plaintiff’s contentions, the following evidence was adduced: Gary and Allegra Roseberry were married in 1967. After they had been “married about five years,” they thought about having a child. However, they experienced difficulties because Allegra Rose-berry was a “victim of infertility.” Through an expensive course of treatment (over approximately ten years) under the direction of a series of infertility experts, Allegra Roseberry’s first pregnancy resulted in the birth of Matthew Roseberry in 1983. In March 1988, Gary Roseberry noticed for the first time that “the whites of [Allegra’s] eyes were somewhat yellow.” On March 24, 1988, Allegra Roseberry was diagnosed at DeKalb General Hospital as having “sclerosing cholangitis, which is basically a scarring in the bile duct system of the liver.” This is “a very serious liver problem. To date the only cure for it was a liver transplant.” Allegra Roseberry was referred to The Emory Clinic for evaluation for a liver transplant. From the date of Allegra Roseberry’s discharge from DeKalb General Hospital in March 1988 to May 27, 1988, Gary Roseberry noticed that Allegra’s “skin color continued to become more of a coppertone or olive color.” Also her abdomen became distended and she “lost ... a little bit of weight. . . .” Gary Roseberry recalled the May 27, 1988, visit to Allegra Roseberry’s regular physician, George R. Jones, M. D. (a named defendant but a non-party to this appeal), where she told Dr. Jones that “she felt like she was pregnant.” Specifically, “her breasts were swollen and . . . rather tender, and her ears seemed to have fluid in them. . . .” Gary Roseberry further affirmed that Allegra Roseberry had “frequent [nighttime] urination[, . . . and] shortness of breathf.]” The Roseberrys had stopped active birth control in 1986. They were not actively seeking to have another child, and Gary Rose-berry “felt with Allegra’s infertility the chances were pretty slim [they] could have a child on [their] own.”

On June 3, 1988, Allegra Roseberry had her first appointment with defendant Walter S. Brooks, M. D., a gastroenterologist at defendant The Emory Clinic. Gary Roseberry recalled that, after Allegra Roseberry had been examined, Dr. Brooks stated: “ ‘This woman needs a transplant now.’ ” During this visit, Allegra Roseberry told Dr. Brooks “that [she felt] pregnant.” Although “[p]atients with sclerosing cholangitis are usually not an urgent transplant,” a CT scan revealed a tumor in the liver and at that time the more serious diagnosis of cholangiocarcinoma (liver cancer) was made. However, in mid-June, while the Roseberrys were getting Allegra Roseberry’s liver typed for a transplant and getting her on a waiting list, they were informed that “Allegra had terminal liver cancer. It really was beyond the point of a transplant, and it was our last hope. It was time to go home more or less.” Specifically, a biopsy was performed of “one of the lymph nodes between the liver and the bile duct[.]” This confirmed that Allegra had “metastatic adenocarcinoma.” The cancer had already spread from the bile duct “to the lymph glands.” The oncologist at defendant The Emory Clinic, Martin York, M. D., told the Roseberrys that there was no chance of a transplant and that Allegra Roseberry had only “three to six months . . .” to live.

In late July 1988, the Roseberrys heard of an experimental chemotherapy being performed on liver cancer patients at Roswell Park Memorial Institute, in Buffalo, New York. As a prerequisite to this experimental chemotherapy, the patient must have a “low bilirubin level [and] Allegra . . . had a higher level than this protocol would allow.” Dr. Brooks agreed that this experimental chemotherapy was “a long shot but it was [the Roseberrys’] best shot, it was [their] only shot, and . . . having reviewed the protocol . . . [suggested that a] liver [stent] be installed . . . [to] drain the liver and lower [Allegra Roseberry’s] bilirubin count so that she could be admitted into this protocol.” Without the experimental treatment, the Roseberrys anticipated that Allegra Roseberry’s “life expectancy at best would be December,” although they knew the end could come as soon as September or October.

The Roseberrys were advised that the liver stent involves “a very dirty part of the body[, . . . and that the] chances of infection were great[.]” After this insertion, and despite successful drainage, Allegra Roseberry “did not get the bounce off of the liver [stent] ...” that was anticipated. Concerned that Allegra Roseberry was retaining abnormal fluid levels, Dr. Brooks ordered an ultrasound examination of her abdomen. It was this ultrasound examination that first revealed the existence of a fetus. Joseph H. Moyers, M. D., the radiologist who discovered the fetus, noted a positive heartbeat and observed the fetus “turning from side to side. The extremities were moving.” He estimated its gestational age at “21 weeks [. . . varying] a week or so in either direction[.]”

David Plotkin, M. D., affirmed that Dr. Brooks’ “failure to conduct a pelvic examination upon [Allegra Roseberry’s] admission to the hospital deviate[d] from the standard of care expected of physicians generally!.]” Dr. Plotkin also “[did not] think . . .” the abortion procedure itself was within the standard of care. Duane Thiele, M. D., affirmed that “the records [he had] seen associated with Dr. Brooks’ reasons for terminating the pregnancy . . . deviate[d] from the standard of care[.]” In Dr. Thiele’s opinion, if Dr. Brooks concluded that the fetus was doomed and recommended an abortion “without consulting an obstetrician or gynecological person,” that conduct fell below the standard of care. Watson A. Bowes, Jr., M. D., affirmed that Dr. Brooks’ failure to have entertained pregnancy as a diagnostic possibility, to have ruled it out, was “a deviation [from] the standard of care expected of physicians under similar circumstances[.]” He disagreed that the fetus was doomed despite the presence of intense bile staining because he had “delivered [normal] children with bilirubins as high as 8 or 9, which is bilirubin as high as Mrs. Roseberry’s.” Additionally, the defense expert witness, Eugene R. Schiff, M. D., agreed that if Dr. Brooks “did not contemplate that an OB-GYN would independently evaluate the need for an abortion, if he didn’t even consider it . . . [then Dr. Schiff] would feel that that would be incomprehensible . . . [and] below the standard of care.” In the opinion of John W. C. Johnson, M. D., another defense expert, for Dr. Brooks “to recommend an abortion without knowing [the amount of] x-ray exposure to the baby for the basis for the abortion would be inappropriate.”

As to Dr. Ahn, Dr. Plotkin testified that “the failure of Dr. Ahn as a consult to personally familiarize himself with the reasons associated with his consultation . . . would be below the standard of care.” Dr. Plotkin also affirmed that Dr. Ahn’s “failure to have recorded specific information for reasons behind his actions in the accuracy of his record keeping [was . . .] a deviation of the standard of care expected of physicians generally[.]” Dr. Bowes would “expect an obstetrician before performing an abortion [to] sit down and satisfy himself as to the scope of the knowledge of the patient[.]” In Dr. Bowes’ opinion, Dr. Ahn’s failure to have done so “deviate [d] from the standard of care. ...” Dr. Johnson testified that if Dr. Ahn “misunderstood the indications for the abortion . . .” his conduct fell below the standard of care. Dr. Johnson affirmed that, in his opinion, both Dr. Brooks and Dr. Ahn “were below the standard of care expected of physicians generally in not carefully noting in the chart the patient’s options and the reasons and decisions for the pregnancy termination[.]”

The jury absolved Dr. Jones of all liability and further found for defendants as to that count alleging they caused the wrongful death of Allegra Roseberry. Nevertheless, the jury found that Dr. Brooks, Dr. Ahn, and The Emory Clinic negligently caused Allegra Roseberry pain and suffering, awarding her estate $250,000. The jury further found Dr. Brooks, Dr. Ahn, and The Emory Clinic jointly and severally liable for the wrongful death of the unborn female, Amy Rose-berry, awarding her estate $1,500,000. Defendants’ motion for judgment n.o.v., for new trial, or for “remittitur of damages” was denied. In Case No. A95A0353, defendants appeal from the joint and several judgment entered by the trial court on the jury’s verdicts. In Case No. A95A0177, plaintiff appeals from the judgment of the trial court directing a verdict in favor of defendants as to plaintiff’s claim for punitive damages. Held:

Case No. A95A0353

1. In their second enumeration, Dr. Brooks, Dr. Ahn, and The Emory Clinic contend the trial court erred in denying their motion for directed verdict, arguing there is insufficient evidence to create a jury issue as to plaintiff’s claim for the wrongful death of the unborn female, Amy Roseberry. A motion for judgment n.o.v. is appropriate only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. Goggin v. Goldman, 209 Ga. App. 251, 252 (433 SE2d 85).

“Negligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Further, there can be no recovery in a wrongful death action based on medical negligence where there is no showing to any reasonable degree of medical certainty that the patient’s death could have been avoided.” (Citations and punctuation omitted.) Dowling v. Lopez, 211 Ga. App. 578, 579 (2), 580 (440 SE2d 205). “ ‘If an injury would have occurred notwithstanding the alleged acts of negligence of the defendant, there could be no recovery in an action for negligence.’ (Citations and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989).” Butler v. South Fulton Med. Center, 215 Ga. App. 809, 813 (3), 814 (452 SE2d 768).

In the case sub judice, plaintiff’s evidence authorized the jury to conclude that Dr. Brooks and Dr. Ahn deviated from the standard of care in recommending and performing an abortion based in part on the erroneous diagnosis that this fetus had already been exposed to fatal dosages of radiation, and that they further deviated from the applicable standard of care in allowing Allegra Roseberry to consent to this abortion, induced in part by this diagnostic misapprehension. Plaintiff also adduced opinion evidence that it was technologically feasible to keep the fetus alive should Allegra Roseberry die from her liver cancer before the child became viable. However, other undisputed and uncontradicted evidence from each party’s medical experts indicated that Allegra Roseberry would not be eligible for the experimental chemotherapy regimen at Roswell Park Memorial Institute while she was pregnant. Plaintiff’s Exhibit 20 (a), which contains the protocol entry criteria for the experimental treatment, is silent on the issue of pregnancy. Nevertheless, Dr. Plotkin affirmed his “understanding as an oncologist that had [Allegra Roseberry] wanted to go [to] Roswell Park for [any] experimental protocol of chemotherapy and/or radiation, that the pregnancy would [probably] have disqualified her from that program[.]” Dr. Bowes affirmed that, in the medical community, it is “just common knowledge that almost all, if not all, experimental chemotherapy [regimens] and programs exclude pregnant women. . . .” Dr. Thiele conceded that “[m]ost protocols involving new drugs, radiation, it would exclude pregnant women.” This is consistent with the opinions of defense medical experts. Dr. Johnson thought it “highly unlikely they would accept her in the experimental program if she was pregnant.” Dr. Schiff testified “no radiation therapist would have ever given radiation to a pregnant woman, even if the baby was doomed.”

There is also uncontradicted evidence that Allegra Roseberry knew she had an alternative reason for electing an abortion, and that reason was wholly unrelated to any acts of medical negligence as demonstrated by plaintiffs evidence. While giving her history to Dr. Young, Allegra Roseberry told him that “she had already decided to have a prostaglandin induction [abortion], not because of radio-graphic studies but because she said she wanted to go get the chemotherapy and try to improve her chances for survival.” Dr. Thiele acknowledged “there may have been multiple reasons for ... performing the abortion. Certainly one was that the patient, one of the patient’s major objectives was to go to have experimental chemotherapy[, . . .] to qualify for that. . . .” Dr. Young “felt that the patient had a full understanding of everything and evidently had been counseled regarding the different options to her, because she stated in the history she had essentially two options, one to continue with pregnancy or, two, get experimental chemotherapy and go through the abortion. And she chose the latter because that was her only chance of survival.”

“Certain results, by their very nature, are obviously incapable of any reasonable or practical division. Death is such a result[.]” Prosser & Keeton, Law of Torts, p. 347, § 52 (5th ed. 1984). See also Parks v. Palmer, 151 Ga. App. 468, 470 (2) (260 SE2d 493). “ ‘The general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune [or result], the former [negligence] must be considered as too remote. . . .’ ” Griner v. Groover, 97 Ga. App. 753, 756 (104 SE2d 504). See generally McAuley v. Wills, 251 Ga. 3, 6 (5) (303 SE2d 258). In the case sub judice, Allegra Roseberry desired to undergo a lawful abortion in order to qualify for experimental treatment at Roswell Park Memorial Institute, and thereby increase her own chances of surviving terminal liver cancer. The lawful abortion performed for that purpose is an intervening act which effectively caused the entire injury (death) to the unborn female, Amy Roseberry. Consequently, any medical negligence attributable to defendants is superseded by the mother’s volitional act as the proximate cause of the death of the fetus. Since the entire injury “occurred notwithstanding [proven] acts of negligence of the defendant [doctors], there [can] be no recovery in [this wrongful death] action for [medical] negligence.’ . . . [Cit.]” Butler v. South Fulton Med. Center, 215 Ga. App. 809, 813 (3), 814, supra. In the case sub judice, it is true that many evidentiary details and the opinions of medical experts were in conflict. Nevertheless, “ ‘(p)laintiff simply failed to prove his case and the direction of the verdict was [demanded]. (Cit.) The mere existence of conflicts in the evidence does not [preclude] the direction of a verdict ... if [that verdict] was demanded, either from proof or from lack of proof on the controlling issue or issues. (Cit.)’ (Emphasis [omitted].) [Cits.]” Simmons v. Boros, 176 Ga. App. 346, 347 (2), 348 (335 SE2d 662), aff’d 255 Ga. 524 (341 SE2d 2). In the case sub judice, the trial court erred in denying defendants’ motion for judgment n.o.v. as to plaintiff’s claim for the wrongful death of Amy Roseberry as the uncontradicted evidence does not warrant submission of the case to the jury. See generally Maddox v. Houston County Hosp. Auth., 158 Ga. App. 283 (279 SE2d 732); Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113 (243 SE2d 269).

2. In their fourth enumeration, defendants contend the trial court erred in denying their motion for judgment n.o.v. as to Allegra Rose-berry’s claim for pain and suffering.

Viewing the evidence in this case in the light most favorable to the party who obtained the verdict, the jury was authorized to conclude that the negligent failure to diagnose Allegra Roseberry’s pregnancy sooner caused her pain and suffering through malnutrition. She competed (unknowingly) with the fetus for nutrients. According to Dr. Plotkin, the fetus usually wins the battle for nutrients that the mother is taking in. “If there’s a shortage, the nutrients are diverted to the fetus[ ... at] the expense of the mother.” Consequently, Allegra Roseberry’s strength and resistance to infection were degraded. This is sufficient evidence to support the award for pain and suffering against Dr. Brooks and The Emory Clinic. The trial court did not err in denying the motion for judgment n.o.v. as to Dr. Brooks. This same evidence, however, fails to show any “injury resulting from a want of [medical] care and skill . . .” on the part of Dr. Ahn as required by OCGA § 51-1-27. Also, plaintiff adduced no evidence that the physical pain Allegra Roseberry endured during the prostaglandin induced delivery she chose in an effort to increase her chances of surviving terminal liver cancer resulted from medical negligence committed during the abortion procedure itself. “ ‘ “Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.” [Cit.]’ [Cit.]” Goggin v. Goldman, 209 Ga. App. 251, 252, supra. “Where there is testimony showing a [mere] difference in views or individual practices among doctors, and where it is also shown that each view or practice is acceptable and customary, such evidence is insufficient to support a malpractice action. See Hyles v. Cockrill, 169 Ga. App. 132, 139 (12) (312 SE2d 124) (1983).” Williams v. Smith, 179 Ga. App. 712, 716 (3), 717 (348 SE2d 50). Consequently, the trial court erred in failing to grant judgment n.o.v. in favor of Dr. Ahn as to this claim.

3. In light of our holdings in Divisions 1 and 2, in Case No. A95A0353, the judgment as to Dr. Ahn is reversed in its entirety. As to Dr. Brooks and The Emory Clinic, the judgment is affirmed in part as to Allegra Roseberry’s claim for pain and suffering, and reversed in part as to the wrongful death claim.

Case No. A95A0177

4. Plaintiff enumerates the direction of the verdict with respect to his claim for punitive damages, arguing that Dr. Brooks’ hasty recommendation of an abortion was evidence of an attempt to mask his flawed diagnosis that the fetus was doomed.

Punitive “damages are not available in a wrongful death action. Roescher v. Lehigh Acres Dev., Inc., 125 Ga. App. 420 (188 SE2d 154).” Truelove v. Wilson, 159 Ga. App. 906, 907 (2) (285 SE2d 556). In Georgia, the measure of recovery for the wrongful death of a child is the “full value of the life of the child[.]” OCGA § 19-7-1 (c). See also OCGA § 51-4-4. This amount “does not include recovery for mental anguish or emotional distress.” Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663, 664 (1) (386 SE2d 146). Such recovery is nevertheless penal because it is not necessarily related to the “real value to the person in whom the cause of action is vested. [Cits.] ... To hold that the jury can award additional exemplary damages under [former Civil Code (1910) § 4503, now OCGA § 51-12-5.1] would have the effect of imposing ... a double penalty.” Engle v. Finch, 165 Ga. 131, 134 (139 SE 868). Accordingly, in the case sub judice, any claim plaintiff might have for punitive damages exists solely with respect to the cause of action alleging defendants negligently caused Allegra Roseberry unnecessary pain and suffering. This issue is now moot with respect to Dr. Ahn. As to Dr. Brooks (and The Emory Clinic), the only circumstances advanced in support of this enumeration which do not relate to the wrongful death claim show that expert opinion evidence questioned Dr. Brooks’ decision not to transfuse Allegra Roseberry before the abortion in order to build up her strength. In Dr. Bowes’ estimation, the abortion “would have been best performed when the patient’s condition [has been] stabilized [by] transfusions, which they [ultimately] had to do. [A prior] blood transfusion might have improved her capacity to tolerate this procedure.”

“Under OCGA § 51-12-5.1 (b), which is applicable in the instant case, it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. There is general agreement that, because it lacks this element, mere negligence is not enough.” (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811). “ ‘ “If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received,” for vindictive or punitive damages are recoverable only when a defendant acts “maliciously, wilfully, or with . . . a wanton disregard of the rights of others.” (Cit.)’ State Mut. Life &c. Assn. v. Baldwin, 116 Ga. 855, 860 (3) (43 SE 262) (1903).” Windermere, Ltd. v. Bettes, 211 Ga. App. 177 (1), 178 (438 SE2d 406). “ ‘It is not essential to a recovery for punitive damages that the person inflicting the damages was guilty of wilful and intentional misconduct. It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to the consequences.’ [Cit.]” Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 174 (2), 175 (355 SE2d 104). In our view, evidence in the case sub judice that Dr. Brooks chose not to transfuse Allegra Roseberry until after the prostaglandin induced abortion establishes mere professional negligence rather than clearly and convincingly evincing that entire want of care as will support punitive damages. The trial court correctly directed the verdict as to this claim.

Judgment affirmed in part and reversed in part in Case No. A95A0353. Judgment affirmed in Case No. A95A0177.

Andrews and Blackburn, JJ., concur.

On Motion for Reconsideration.

Case No. A95A0353

Plaintiff Gary Roseberry contends that this Court has overlooked “the overwhelming evidence that the Roseberrys chose to abort the pregnancy because they were told the baby was doomed, that it had no chance of survival, and that the pregnancy was weakening Allegra [Roseberry].” (Emphasis in original.) He argues that this evidence “contradicts” Allegra Roseberry’s statement to Dr. Young that showed she knew she had a choice and that she chose to survive.

Plaintiff’s position mischaracterizes this Court’s analysis and is erroneously premised on the misapprehension that Allegra Roseberry could have but a single reason for undergoing the abortion. On the contrary, this Court’s analysis presupposes that plaintiff’s evidence established that Dr. Brooks’ incorrect diagnosis of nonviablity induced, in part, the decision to terminate the pregnancy. Nevertheless, all the evidence of Allegra Roseberry’s initial motive does not contradict her last statement of intent, as related by Dr. Young, which included chemotherapy as an additional reason for terminating the life of her unborn child. Testimony is contradictory if one part asserts or expresses the opposite of another part of the testimony. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680). This additional motive of seeking experimental chemotherapy does not express the opposite of choosing to terminate the pregnancy due to fetal nonviability. Rather, it expresses a parallel reason, existing simultaneously and independently of the negligently induced motive.

During the presentation of plaintiff Gary Roseberry’s case-in-chief, portions of the October 4, 1991 deposition of Johnny Shan Young, M. D., were read into the record. Dr. Young expressly affirmed that he had “some independent recollections . . .’’of Allegra Rose-berry as a patient. When Dr. Young took Allegra Roseberry’s history, “[h]er husband was present.” “She was a very thin, ill-appearing, cachectic woman who was [jaundiced], probably as much jaundice as any patient I had seen. She did not look very healthy, but she seemed to be in good spirits despite her illness.” She was “[v]ery coherent.” “The patient stated that she wanted the prostaglandin induction so she might be able to go and get some experimental chemotherapy.” Dr. Young “felt that the patient had a full understanding of everything and that she evidently had been counseled regarding the different options to her because she stated in my — in the history that essentially she had two options; one was continue with the pregnancy or, two, to get the experimental chemotherapy and go through an abortion. And she chose the latter because that was her only chance of survival.”

Plaintiff Gary Roseberry contends that Dr. Young’s testimony is suspect because it was given three years after the fact and introduced (by plaintiff) only through deposition. Only plaintiff Gary Roseberry, his deceased wife Allegra Roseberry, and Dr. Young had personal knowledge of what Allegra Roseberry said to Dr. Young as he took her history. However, when plaintiff Gary Roseberry was recalled to the stand, he never testified that, contrary to Dr. Young’s testimony, Allegra Roseberry never said she wanted to undergo a clinical abortion (in part) so that she might take part in experimental chemotherapy. Plaintiff Gary Roseberry was quite certain that Dr. Brooks was untruthful about certain matters but he was silent on the substance of Dr. Young’s testimony. Thus, the record shows that the only person who could, from personal knowledge, refute Dr. Young’s testimony, failed to do so.

Next, plaintiff Gary Roseberry contends that Allegra Roseberry’s statement to Dr. Young was impeached by Dr. Young’s own records. However, plaintiff’s counsel elicited that medical records list Allegra Roseberry as having been admitted to the transferring hospital “to have percutaneous drainage in consideration for chemotherapy.” Further review of the transcript shows that Dr. Young’s own notes of Allegra Roseberry’s history recite: “The patient is currently undergoing percutaneous drainage of her biliary tract prior to receiving experimental chemotherapy.” When directly questioned by plaintiff’s counsel whether he had any specific recollection that Allegra Roseberry wanted experimental chemotherapy after she learned she was pregnant, Dr. Young testified: “What she said when I saw her this day, August the 8th, was that she wanted chemotherapy. And that was after she learned she was pregnant.” Thus, the medical records tend to confirm rather than impeach Dr. Young’s testimony that Allegra Roseberry wanted to undergo the clinical abortion (in part) in order to preserve her chances of being admitted into the experimental protocol, with the hope that, thereby, her life might be saved.

Decided July 14, 1995

Reconsideration denied July 28, 1995

Weinstock & Scavo, Michael Weinstock, Louis R. Cohan, Love & Willingham, Robert P. Monyak, for appellants.

Allen & Peters, Jonathan C. Peters, Carol S. Colby, for appellees.

Finally, plaintiff Gary Roseberry contends there is no evidence that Allegra Roseberry knew or believed that she must undergo an abortion in order to qualify for the experimental chemotherapy. However, the proof of this comes from the plaintiff himself. When Dr. Brooks first informed the Roseberrys that Allegra Roseberry was pregnant and that the fetus should be aborted, Allegra Roseberry, according to plaintiff Gary Roseberry’s testimony on direct examination, “almost was happy about this pregnancy, even knowing what it meant, even knowing that she had to go through an abortion to get to Buffalo.” This is unchallenged evidence that both Allegra Roseberry and plaintiff Gary Roseberry believed all along that the abortion was a necessary predicate to Allegra Roseberry’s entry into the experimental chemotherapy regimen at Roswell Park Memorial Institute in Buffalo, New York.

Motion for reconsideration in Case No. A95A0353 is denied.