text:
    A97A2298.
    HICKS v. THE STATE.
    (499 SE2d 341)
   Birdsong, Presiding Judge.

Pursuant to our grant of an interlocutory appeal, Brett Ferrell Hicks appeals the trial court’s denial of his motion to enforce the assignment of his case to the superior court judge to which the case was assigned originally. Stated directly, Hicks attacks the practice in Cobb County of assigning cases brought by the Marietta, Smyrna, Cobb Drug Task Force (“MCS”), regardless of the case assignment to a particular Cobb Superior Court Judge under Uniform Superior Court Rule 3.1, to the Chief Judge of the Cobb Magistrate Court (“the Chief Magistrate”) for disposition. Held:

1. The State has not attempted to defend the procedures used to assign this case to the Chief Magistrate. Instead, the State relies solely upon the argument that Hicks has waived the issue because he did not raise it until after the Chief Magistrate rejected a negotiated plea agreement. Although the timing of Hicks’ motion raises questions about his motivation, we do not find that Hicks waived this issue by not raising it when he first appeared before the Chief Magistrate. In our earlier cases considering this issue we found a waiver because the appellants did not raise the issue until after their trials had been completed. See, e.g., Bennett v. Jones, 218 Ga. App. 714, 715 (463 SE2d 158) (physical precedent). In this case, however, the jurisdiction of the Chief Magistrate to preside at the trial was raised before trial on the merits commenced and Hicks did not wait to raise the issue until after trial was completed. Therefore, we conclude that this issue is properly before us. See Troncone v. Troncone, 261 Ga. 662, 663 (409 SE2d 516); Bennett v. Jones, 218 Ga. App. 714, 715 (463 SE2d 158).

2. In response to Hicks’ challenge to the participation of the Chief Magistrate in this case, the assigned prosecutor stated that it was his understanding that, “all the cases of MCS agents that are — or cases investigated by MCS agents ought to go to [the Chief Magistrate]. That’s not really true. See, because, Your Honor, cases involving the organized crime unit or the OCU Unit of the Cobb County Police Department, as well as the members of the other jurisdictions that are part of these organized crime units, their cases, likewise, are assigned to [the Chief Magistrate].” Further, even though the prosecutor agreed that an order providing jurisdiction to the Chief Magistrate should exist, neither the prosecutor nor the trial court, nor apparently the clerk or the administrator of the superior court could locate a court order assigning this case or any MCS case to the Chief Magistrate.

Instead, according to the prosecutor, when warrants taken out by an MCS agent or an organized crime unit agent come in to the district attorney’s office, the cases are assigned to the district attorney’s MCS unit. “And those cases are then assigned, regardless of the superior court judge that they are assigned to, they are then diverted to [the Chief Magistrate].” The prosecutor did not indicate what office assigned these cases to the Chief Magistrate, and the prosecutor could not state exactly how the cases are assigned to the Chief Magistrate.

The record contains a copy of a letter to the Chief Judge of the Cobb Superior Court, apparently signed by all the other superior court judges, that was filed on October 16, 1996, but apparently dated September 13, 1996, requesting the assistance of the Chief Magistrate in handling the business of the court from Monday, December 2,1996, at 9:00 a.m. and continuing through and including Sunday, December 8, 1996, at 5:00 p.m. or until such time as is reasonably necessary to complete said cases. Also in the record is a request for judicial assistance pursuant to OCGA § 15-1-9.1, dated October 16, 1996, stating that the judges of this court are in need of assistance in handling the business of this court and requesting the Chief Magistrate for the period stated in the letter. The record contains similar letters and requests for assistance, dated November 29, 1996, for January 13 to January 19, 1997, dated November 13, 1996, for January 27 to February 2, 1997; and dated December 3, 1996, for February 24 to March 2, 1997. The record also contains the Chief Magistrate’s acceptance of designation for most of the periods.

OCGA § 15-1-9.1, requesting judicial assistance from other courts, controls requests for assistance in this circumstance and the Code section, in pertinent part, states: “If assistance is needed from a judge from the same county, the chief judge of any court within such county of this state may make a written request for assistance to the chief judge of any other court within such county. . . . The request by the chief judge may be made if one of the following circumstances arises: (A) A judge of the requesting court is disqualified for any cause from presiding in any matter pending before the court; (B) A judge of the requesting court is unable to preside because of disability, illness, or absence; or (C) A majority of the judges of the requesting court determines that the business of the court requires the temporary assistance of an additional judge or additional judges.” Further, “[t]he written designation shall identify the court in need of assistance, the county where located, the time period covered, the specific case or cases for which assistance is sought if applicable, and the reason that assistance is needed. The written designation shall be filed and recorded on the minutes of the clerk of the court requesting assistance. Any amendment to the designation shall be written, filed, and recorded as is the original designation.” Id.

Uniform Superior Court Rule 3, Assignment of cases and actions, also affects this issue. Rule 3.1, Method of assignment, provides: “In multi-judge circuits, unless a majority of the judges in a. circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases. The clerk shall have no power or discretion in determining the judge to whom any case is assigned; the clerk’s duties are ministerial only in this respect and his responsibility is to carry out the method of assignment established by the judges. The assignment system is designed to prevent any person’s choosing the judge to whom an action is to be assigned; all persons are directed to refrain from attempting to affect such assignment in any way. Neither the clerk nor any member of his staff shall disclose to any person the judge to whom a case is or will be assigned until such time as the case is in fact filed and assigned.” If the Cobb County Superior Court has adopted.any modification to Uniform Superior Court Rule 3.1 for MCS cases, or any other kind of cases, the modification does not appear in the record and neither party to the appeal has cited to such modification.

Further, Rule 3.3, Exclusive control, provides that “[t]he judge to whom any action is assigned shall have exclusive control of such action, except as provided in these rules, and no person shall change any assignment except by order of the judge affected and as provided in these rules. In this regard an assigned judge may transfer an assigned action to another judge with the latter’s consent in which event the latter becomes the assigned judge.”

Therefore, under Uniform Superior Court Rules 3.1 and 3.3, no one, other than the superior court judge to which this case was assigned, had authority to change the assignment of this case to the Chief Magistrate, and, in any case, an order assigning this case to the Chief Magistrate was required. Absent such an order, the Chief Magistrate had no authority to act in this matter even though in denying Hicks’ motion, the trial court found that “[cjertain matters in this case were heard by [the Chief Magistrate] pursuant to requests for judicial assistance from the judges of the Cobb Superior Court,” and then concluded as a matter of law that “the procedure leading to the assistance provided by [the Chief Magistrate] meets the requirements of Code Section 15-1-9.1 and, further, finds that this case was never assigned to [the Chief Magistrate].”

We find that the procedures used in this case violate both Uniform Superior Court Rules 3.1 and 3.3 and OCGA § 15-1-9.1. A proper written and filed request for assistance under OCGA § 15-1-9.1 is an indispensable prerequisite to clothe the designated judge with jurisdiction and power to act. Hornsby v. Odum, 198 Ga. App. 472, 473 (402 SE2d 56). Thus, as the designation in this case did not identify the Hicks’ case as one for which the assistance of the Chief Magistrate was sought, we do not find that the designated judge had jurisdiction and power to act because Uniform Superior Court Rules 3.1 and 3.3 require a specific order from the assigned judge to transfer responsibility to an assisting judge even if an assisting judge has been properly designated in accordance with OCGA § 15-1-9.1. We are particularly concerned by the suggestion that someone in the District Attorney’s office is making the decision to direct these cases to the Chief Magistrate. This does not mean, however, that responsibility for this case cannot in the future be transferred to an assisting judge if the procedures established in both Uniform Superior Court Rule 3 and OCGA § 15-1-9.1 are satisfied.

Additionally, we find that the requests for assistance from the Chief Magistrate did not comply with OCGA § 15-1-9.1. In Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664, 665 (399 SE2d 269), this Court observed, “seemingly any provision that might prevent such interjudicial appointments from supplying the judiciary of this state, can be avoided as often and as lengthily as requesting court judges might wish, simply by making these requests for assistance. This unreigned method of administrating the judicial business of a court, and its disaffection of the electors or of parties proceeding in the court, do not seem to be a sagacious result of the desire for judicial ‘flexibility.’ ”

Further, our Supreme Court found that “[b]y failing to specify either the scope or length of the assisting judge’s service, his order of appointment violated the standards required to obtain temporary judicial assistance” outlined in OCGA § 15-1-9.1 and court rules. Cramer v. Spalding County, 261 Ga. 570, 573 (409 SE2d 30). Further, in Bennett v. Jones, supra at 715, this Court strongly admonished “superior court judges requesting assistance to be careful about how they word their OCGA § 15-1-9.1 orders, as well as how they utilize those appointed to sit as superior court judges under that statute. See Cramer v. Spalding County, [supra at 570 (3) (a)].” As neither the requests nor the designations specified the scope of the assisting judge’s service, we find that this case was not properly assigned to the Chief Magistrate.

Additionally, “[a] judge does not have statutory or inherent authority to create a judicial office and make indefinite appointments thereto. Cramer v. Spalding County, [supra]. OCGA § 15-1-9.1 (b) (2) authorizes the judiciary to request judicial assistance from other Georgia courts when, among other things, the requesting court requires the temporary assistance of an additional judge or judges. The order designating a specified, qualified judge to assist a requesting court must contain the time period of the assistance and must be filed and recorded on the minutes of the clerk of the court requesting the assistance. OCGA § 15-1-9.1 (f).” Massey v. State, 265 Ga. 632, 634-635 (458 SE2d 818). In the present appeal the limited record suggests that the requests for assistance were not temporary. “Temporary assistance” means assistance for a limited time and our Supreme Court has held that the term does not mean an indefinite appointment of a judge (Cramer v. Spalding County, supra at 573) and Justice Fletcher would interpret “ ‘temporary assistance’ to also prohibit a succession of assignment orders that, taken together, amounts to an indefinite appointment.” Massey v. State, supra at 636-637 (special concurrence). We need not reach this issue to decide this case, however, and, therefore, do not decide whether the requests in this case were truly requests for temporary assistance. Nevertheless, we are constrained to express our concern about the prosecutor’s comments that suggest that OCGA § 15-1-9.1 is being used to create a special drug court and that cases are being assigned to that court in violation of Uniform Superior Court Rules 3.1 and 3.3.

Decided February 23, 1998

Reconsideration denied March 25, 1998

Jacket, Rainey, Marsh & Busch, James L. Rainey, Kimberly S. Blackwell, for appellant.

Thomas J. Charron, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Accordingly, as we find that the Chief Magistrate lacked authority to act in this case, the order of the assigned judge must be reversed and the case remanded to the assigned judge for further proceedings.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A97A2312.
    HOPKINSON v. LABOVITZ et al.
    (499 SE2d 338)
   McMurray, Presiding Judge.

Plaintiff Hopkinson filed this action on October 30,1996, seeking damages for professional negligence against attorney Labovitz and his law firm, Ellis, Funk, Labovitz, Goldberg, and Dokson, P.C. The original complaint alleges that defendants represented plaintiff in a divorce action and during the course of that representation did negligently fail to obtain accurate financial information related to the income and circumstances of plaintiff’s then husband; did either fail to correctly advise, or did affirmatively misrepresent to plaintiff the amounts of income and other financial circumstances of her then husband during the course of settlement negotiations; and did advise, recommend, and put pressure on plaintiff encouraging a settlement that was substantially less than she might otherwise have been entitled to. The original complaint also recited that the statute of limitation would expire within ten days of the date of filing, that plaintiff had not been able to obtain an affidavit in time to be filed with the complaint, and that an affidavit would be filed subsequently as provided in OCGA § 9-11-9.1 (b).

No expert’s affidavit was ever filed by plaintiff. A motion for an extension of time for the filing of the affidavit was denied.

On January 3, 1997, plaintiff filed an amendment to her complaint adding a claim for fraud based on substantially the same facts recited in the original complaint and alleging that defendants had knowingly misrepresented material facts about the financial circumstances of her former husband, and that she had relied upon these misrepresentations to her detriment.

Defendants moved to dismiss plaintiff’s complaint, as amended, for failure to state a claim upon which relief may be granted based on plaintiff’s failure to file an expert affidavit as required by OCGA § 9-11-9.1. Plaintiff now appeals from the superior court’s grant of defendants’ motion to dismiss upon which final judgment was entered pursuant to OCGA § 9-11-54 (b). Held:

Each of plaintiff’s enumerations of error contains a misnomer in that the final judgment appealed from is referred to as a summary judgment. However, plaintiff’s misnomer does not require dismissal. “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate, clearly the errors sought to be reviewed.” OCGA § 5-6-48 (f). Sanders v. Looney, 247 Ga. 379 (1) (276 SE2d 569);Horton v. Allstate Ins. Co., 171 Ga. App. 707 (1) (320 SE2d 761) (overruled on other grounds, Carter v. Banks, 254 Ga. 550, 554 (3) (330 SE2d 866)). In the case sub judice, it is clear that plaintiff seeks review of the grant of defendants’ motion to dismiss her complaint and amended complaint. Furthermore, plaintiff’s third enumeration of error maintains that her pleadings create questions of fact which require a jury trial as to the issue of fraud, breach of contract, negligence and malpractice.

We affirm that portion of the appealed judgment which dismisses with prejudice the claim based on professional negligence stated in the original complaint. In this connection, we note that plaintiff never filed the affidavit required pursuant to OCGA § 9-11-9.1, that plaintiff has not shown “good cause” for an extension of time for the filing of the affidavit under OCGA § 9-11-9.1 (b), and that to whatever extent plaintiff may seek to avoid the affidavit requirement on the basis that the alleged professional negligence is so “clear and palpable” that it may be understood by a jury without expert evidence, this contention must yield to the mandatory direction contained in OCGA § 9-11-9.1. Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51). ‘We are without authority to say § 9-11-9.1 does not apply and the plaintiff shall not be required to file such an expert affidavit, if negligence is shown to be clear and palpable. If we were to say so, we would be repealing the act by violating its terms.” Id. at 138.

However, we reverse that portion of the superior court’s judgment which dismisses plaintiff’s fraud claim raised in the amendment to her complaint. “The affidavit requirements of OCGA § 9-11-9.1 ‘are limited to those claims “for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Barr v. Johnson, [189 Ga. App. 136, 137, supra]. This does not mean, however, that every claim which calls into question the conduct of one who happens to be a lawyer is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises. Candler General Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) (1987).’ (Emphasis omitted.) Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66).” Peacock v. Beall, 223 Ga. App. 465 (477 SE2d 883).

The amended complaint in the case sub judice stating plaintiff’s fraud claim does not appear to call into question professional standards of care applicable to attorneys. Instead, the fraud claim appears to be predicated on misrepresentations which would not be misunderstood by even the most uneducated layman and are actionable against any person. Hilton v. Callaghan, 216 Ga. App. 145, 146 (453 SE2d 509). “The reason expert testimony is required in professional malpractice cases is that ‘the court and the jury must have a standard measure which they are to use in measuring the acts of the (professional) in determining whether he exercised a reasonable degree of care and skill (in carrying out his professional duties). . . . The proper standard of measurement is to be established by testimony of (professionals); for it is a (professional) question.’ Pilgrim v. Landham, 63 Ga. App. 451, 455 (11 SE2d 420) (1940). Where the claim does not bring into issue a professional question, there is no need as to that claim, to establish professional standards. ‘Thou shalt not defraud,’ is a proposition that is understood by even the most uneducated layman. Indeed, what professional could deny its propriety? It follows therefore that no expert testimony is required to establish that it is improper for attorneys to defraud their clients. It is improper for any person to defraud another as that is a standard of society, from which no one is excepted.” (Emphasis in original.) Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508-509, supra. Therefore, the fraud claim did not require an OCGA § 9-11-9.1 affidavit and the dismissal of this claim was error.

Judgment affirmed in part and reversed in part.

Smith, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I write with respect to the “clear and palpable” cases exception to the rule that “expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.]” Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107) (1978).

I agree with the majority and with the opinion in Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988), that OCGA § 9-11-9.1 requires an affidavit of an expert in every case alleging professional malpractice. The statute pointedly states that “[i]n any” such action, the plaintiff “shall be required” to file an affidavit of an expert as a part of the complaint. No exceptions are provided for. Thus, even when the malpractice is clear and palpable, the testimony via affidavit of an expert competent to testify is necessary with the pleading commencing the action, to show that the defendant’s act or failure to act constituted a significant deviation from acceptable, professional conduct.

The “clear and palpable” exception is a rule of evidence, applicable to consideration of summary judgment motions or trial, not a rule of pleading. Hughes, in which the grant of summary judgment was affirmed, illustrates the point by focusing on the expert evidence of record because it was not a “clear and palpable” case. Since an expert affidavit must be filed even in a case where the jury does not need the opinion of an expert to inform it whether the defendant’s act or omission constituted negligence, there is an anomaly in the “clear and palpable” cases. With the pleading commencing the proceeding there must be an affidavit of an expert whose opinion it is that the act or failure to act constitutes negligence, but at trial or in the summary judgment stage negligence may be proved without expert testimony.

It would appear illogical to require a higher degree of proof at the time of commencement of the suit than when it is tried, but either that is the law or the advent of OCGA § 9-11-9.1 eliminated the judicially-created rule that in cases of clear and palpable negligent act or omission, expert opinion evidence is not necessary. Yet, for good reason, we continue to apply it or at least acknowledge its efficacy. See, e.g., Graves v. Jones, 184 Ga. App. 128, 129 (1) (361 SE2d 19) (1987) (summary judgment; “clear and palpable” exception acknowledged but not applicable to circumstances); General Hospitals of Humana v. Bentley, 184 Ga. App. 489, 490 (361 SE2d 718) (1987) (circumstances shown on summary judgment required expert affidavit because alleged professional negligence not “clear and palpable”); Elwell v. Cutler, 185 Ga. App. 423, 425 (364 SE2d 81) (1987) (expert testimony not needed to counter motion for summary judgment where professional negligence was clear and palpable); Khoury Constr. Co. v. Earhart, 191 Ga. App. 562, 563 (2) (382 SE2d 392) (1989) (expert opinion unnecessary at trial because defect “clear and palpable”); Hailey v. Blalock, 209 Ga. App. 345, 348 (3) (433 SE2d 337) (1993) (summary judgment required because physician’s failure was not a “gross error of judgment” or “clear and palpable negligence” so as to survive motion when plaintiff’s counter-affidavit was insufficient to create issue of fact); Pope v. Dept. of Human Resources, 209 Ga. App. 835, 839 (2) (434 SE2d 731) (“Expert testimony is also not required in extreme cases where the error of judgment is gross, and negligence is clear and palpable. [Cit.]”); Bilt Rite of Augusta v. Gardner, 221 Ga. App. 817 (472 SE2d 709) (1996) (summary judgment denied because professional negligence was clear and palpable: “[E]ven in professional negligence cases, evidence of negligence in some cases may be so ‘clear and palpable’ that it may be understood by a jury without expert evidence as to a professional standard of care. [Cits.]”). All of these cases were decided after the effective date of OCGA § 9-11-9.1 (Ga. L. 1987, p. 887, effective July 1, 1987).

Decided February 6, 1998

Reconsideration denied March 25, 1998

Helen C. Hopkinson, pro se.

Troutman Sanders, Daniel S. Reinhardt, Lisa L. Spooner, Carmie L. McCurry, for appellees.

Inasmuch as this case involves the sufficiency of the pleading and not the proof in a summary judgment or trial context, the latter conundrum need not be addressed. Whether the “clear and palpable” exception must be abandoned is not reached, as the complaint alleging malpractice lacked the expert affidavit required by the legislature in all malpractice cases.


author: McMURRAY, Presiding Judge.

text:
    A97A2490.
    BROOKS v. THE STATE.
    (500 SE2d 11)
   McMURRAY, Presiding Judge.

Defendant Brooks appeals his conviction of two counts of child molestation. The sole enumeration of error maintains that the trial court erred in finding trial counsel effective. Held:

1. In order to prevail on his claim of ineffective assistance of trial counsel, defendant was required to show that trial counsel was deficient and that there was a reasonable possibility that the outcome of the proceedings would have been different, but for trial counsel’s deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). There is a strong presumption that trial counsel’s conduct fell within the broad range of professional conduct. Roberts v. State, 263 Ga. 807 (2), 808 (439 SE2d 911). The trial court’s ruling that trial counsel’s performance did not fall below an objective standard of reasonableness and that defendant failed to show a reasonable probability that the result would have been different but for the alleged errors must be upheld unless those findings are clearly erroneous. Garrett v. State, 196 Ga. App. 872 (1), 874 (397 SE2d 205). A conviction will not be reversed on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermines the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Adefenwa v. State, 221 Ga. App. 429, 431 (3), 432 (471 SE2d 900).

The evidence of record supports the trial court’s determination that defendant has failed to satisfy his burden as to either prong of the Strickland test. The trial court did not err in denying defendant’s motion for new trial.

2. One of the child molestation convictions was predicated on defendant having watched a pornographic film with the victim. A sexually explicit videotape obtained from defendant shortly after his arrest was introduced into evidence at trial. Defendant contends that trial counsel was deficient in that he failed to attempt to suppress the videotape.

The only evidence of record concerning the circumstances of defendant’s arrest and the transfer of possession of the videotape arise from the trial testimony of the arresting officer. That officer testified that following an interview of the victim, “I talked with a judge and obtained warrants. We got a consent search to search the residence when we went there because of the tape [the victim] had mentioned and just did some corroboration and investigations.” The officer testified that when she went to defendant’s home to arrest him she “told him [she] had a consent search, that [she] understood that he had a porno tape, and did he have tapes in the residence, and he showed [her] . . . which one was the porno tape.” Although less than clearly stated by the officer’s testimony, the trial court reasonably understood the officer’s references to “consent search” to mean a “search warrant consented to by the child’s mother who was then the wife of the defendant and was living with the defendant. The search warrant gave the officer permission to search the house to attempt to locate the video tape which the child had made reference to in her statement to authorities.” Defendant has not challenged the trial court’s understanding of the trial testimony, but addresses the absence of documentary proof as to the existence of a consent or warrant, and questions whether defendant voluntarily consented to a search.

Under these circumstances, we find no merit in defendant’s assertion that the videotape could have been suppressed. No documentary evidence was required to corroborate the officer’s testimony. A search of the defendant’s home was authorized by the consent of his wife, who possessed common authority over the premises. Boggs v. State, 194 Ga. App. 264 (390 SE2d 423); Pupo v. State, .187 Ga. App. 765, 767 (5) (371 SE2d 219). And the officer’s possession of consent to search or search warrant for defendant’s residence made it inevitable that the pornographic film would be found among the approximately 20 videotapes in defendant’s collection. Barnett v. State, 204 Ga. App. 491, 492 (1), 494 (420 SE2d 43). Questions as to whether defendant voluntarily consented to a search need not be reached.

3. We find no merit in defendant’s contention that trial counsel was ineffective in failing to file Brady {Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)) and discovery motions. Trial counsel determined that it was unnecessary to file discovery motions in view of the policies of the district attorney which permitted him absolutely open access to the prosecution files. While this Court has approved of an attorney’s decision to abstain from filing discovery motions under such circumstances in Cunningham v. State, 222 Ga. App. 740, 744 (2) (c) (475 SE2d 924), defendant complains that this permitted his trial counsel to be surprised at trial by a statement which defendant had given at the time he was first arrested. Nonetheless, trial counsel related that the prosecuting attorney was also unaware of the statement prior to trial, that trial counsel was informed of the statement during trial and afforded an opportunity to discuss it with the officer who conducted the interview, and that there was no reason to believe that the statement could have been obtained via motion prior to trial. In any event, the statement in question was not introduced at trial by the State.

Defendant also asserts that trial counsel failed to interview Cathy Anderson, the victim’s mother and defendant’s wife at the time of the crimes of which he was convicted, and thereby learn that she felt defendant was innocent and that the victim was prone to lying and fabricating stories. At the motion for new trial hearing, Anderson testified that she was not interviewed by trial counsel but that she would have willingly provided him with this information. Trial counsel testified as to learning of Anderson’s statements to family members that she thought the victim had lied but “would not get involved because either DFACS or the Victim/Witness people had threatened to terminate her parental rights if she got involved.” Trial counsel also testified that he had spoken to Anderson on two or three occasions and that she did not express an opinion that defendant was innocent or a desire to testify for him until after the jury had retired to deliberate.

Defendant suggests that had trial counsel learned of Anderson’s opinions, she could have been called as a defense witness at trial. Yet, the trial court resolved the conflicts between the motion for new trial testimony of Anderson and of trial counsel by believing trial counsel.

Trial counsel did not attempt to interview the victim prior to trial but explained that after speaking to the victim’s mother, he did not think she would allow him access to the child. Additionally, trial counsel explained that he had access to the videotaped interview with the victim which was very thorough.

Defendant also contends that, through a Brady motion, trial counsel could have learned from the notes of the child victim advocate that the victim may have been abused sexually as a three-year-old and that such information could have been useful in attacking the credibility of the victim. However, this evidence of the victim’s sexual history is inadmissible due to the Rape Shield Act, OCGA § 24-2-3. McGarity v. State, 224 Ga. App. 302, 303 (1) (480 SE2d 319). And the State never introduced any evidence such as would make the prior abuse admissible as rebuttal under Chambers v. State, 205 Ga. App. 78, 79 (4), 81 (421 SE2d 326). Furthermore, the victim was not even aware of the prior incident of abuse which occurred when she was three years of age. Trial counsel was not deficient in failing to obtain this evidence which was of no apparent value in relation to the case sub judice.

4. A videotape of an interview with the victim was played during the State’s case in chief. During the viewing of the videotape the jurors were provided with the transcript of the recording and given limiting instructions that the videotape, but not the transcript, was evidence. Neither the videotape nor the transcript were sent out with the jury. During jury deliberations, the jury asked to see the transcript again. The trial court declined to send the transcript out to the jury room, but returned the jury to the courtroom where the jury was allowed to view the videotape again and to use the transcript to assist them during the replay of the videotape. Defendant complains of the failure of trial counsel to object to the replay of the videotape and provides an argument predicated on inapposite continuing witness cases, involving documentary evidence going out to the jury room. The replaying of evidence which the jury asked to hear is within the discretion of the trial court. Lee v. State, 259 Ga. 230, 232 (4) (378 SE2d 855); Nelson v. State, 208 Ga. App. 671, 673 (4) (431 SE2d 450). Trial counsel was not deficient in failing to raise the meritless objection urged by defendant.

Decided March 12, 1998

Reconsideration denied March 25, 1998

Cook & Connelly, Bobby Lee Cook, Todd M. Johnson, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Fred R. Simpson, Assistant District Attorneys, for appellee.

5. Trial counsel was not deficient in failing to object to expert testimony from a clinical psychologist who described the victim’s behavior and testified that her behavior was consistent with that of a child who had been sexually abused. The expert did not provide any opinion as to whether in fact the victim had been abused. The testimony of the expert witness was admissible under Allison v. State, 256 Ga. 851, 852-853 (2), (5) (353 SE2d 805) which explicitly allows testimony of the nature provided by the expert in this case but prohibits any opinion that the child has in fact been abused, unless such opinion is predicated on evidence beyond the understanding of the jury. Contrary to defendant’s argument, there is nothing in the more recent decision of Hilliard v. State, 226 Ga. App. 478 (487 SE2d 81) which would prohibit any portion of the testimony given by the expert in this case.

6. Defendant’s final argument is that trial counsel failed to interview key witnesses and failed to adequately prepare. The specific instances noted in connection with this contention are addressed in the preceding divisions of this opinion and require no further discussion.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Beasley, Judge.

text:
    A97A2534.
    BALLENGER PAVING COMPANY v. GAINES.
    (499 SE2d 722)
   Beasley, Judge.

While observing the use of his employer’s saw blades at a road construction site, Timothy Gaines was struck by an automobile that invaded the site. Gaines sued the general contractor, Ballenger Paving Company, for inadequate traffic control at the site. A jury awarded Gaines $2.7 million. Ballenger unsuccessfully moved for a directed verdict and for judgment notwithstanding the verdict, arguing that the intrusion of the automobile, driven by a drunk driver, was an unforeseeable intervening criminal act.

The issues on appeal are (i) whether the driver’s actions were the sole proximate cause of the accident; (ii) whether Gaines was a licensee on the site and as such not entitled to recover absent a showing of wilful and wanton misconduct; (iii) whether Ballenger was entitled to a directed verdict on Gaines’ claims that Ballenger should have closed the entrance ramp, used overhead floodlights, or used a crash truck; (iv) whether the evidence demanded a finding that Gaines had equal knowledge of the traffic control measures; (v) whether the jury array was illegally constructed; and (vi) whether the trial court erred in admitting into evidence the Manual on Uniform Traffic Control Devices.

1. Proximate cause and Breach of duty.

Ballenger first argues it “was entitled to a directed verdict and judgment notwithstanding the verdict because viewing the evidence in the light most favorable to the plaintiff, the true proximate cause of this accident was Alan Brownley’s criminal act of driving under the influence of alcohol and crashing through a clearly delineated barricade after disregarding warning signs.” In its third enumeration of error, Ballenger argues that the court should have directed a verdict on Gaines’ claims that Ballenger was negligent in failing to close the entrance ramp leading up to the construction site, in failing to use floodlights, and in failing to use a crash truck. Although the first enumeration relates to proximate cause and the third relates to breach of duty, both ignore evidence to the contrary.

A directed verdict or j.n.o.v. should only be granted “[i]f 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 . . . ,” “ ‘Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [Ballenger’s] motion for directed verdict. . . and j.n.o.v. will not be disturbed.’ [Cit.]”

(a) So construed, the evidence showed that the driver, Brownley, was not intoxicated and that his negligence in not seeing the barrels was a reasonably foreseeable consequence of Ballenger’s actions in failing to follow recognized standards of conduct in traffic control.

. Shortly after 11:00 p.m. Brownley left a party where he drank beer and consumed pizza, a hot dog, and some chips. He drove his vehicle up the Washington Road on-ramp to 1-20. As he looked over his left shoulder to view the traffic with which he intended to merge, he did not see the signs or reflective barrels on the entrance ramp channeling traffic to make a hard left turn to cross over the right lane of 1-20 and merge into the only lane of 1-20 open (the left lane). He drove through the plastic barrels and struck Gaines.

(1) Ballenger’s negligence.

The right lane and the entrance ramp were the site of road reconstruction. Ballenger had contracted with the Department of Transportation to replace the paving and had subcontracted Eaton Construction Company to saw the old paving into squares which Ballenger would remove and replace with new paving. Eaton purchased diamond blades from Norton Construction for the sawing. Eaton invited Norton’s representative, Gaines, to visit this worksite to field test new blades that might be faster and more effective with the particular type of paving at that site. When Gaines arrived, he notified Ballenger of his presence.

The site that night was very dark because Eaton did not like to use the floodlights mandated by its subcontract for the protection of people working at the site. By contract and by law, Ballenger was responsible for providing adequate traffic control at the site. Even though Ballenger informed Eaton the lack of floodlights was a safety problem for site workers, Ballenger allowed Eaton to use only a small light on the saw.

Ballenger’s contract with the DOT also required the barrels serving as channelization devices to have steady burning lights, but on this night only two of the barrels at most had working lights. This may have confused drivers into thinking there was an open thoroughfare between them. This lighting also violated the Manual for Uniform Traffic Control Devices (MUTCD), which is not only the recognized minimum standard for the industry for traffic control devices, but was incorporated into the DOT contract for the purpose of protecting both the public and the workers at the site. Negligence claims for failure to provide adequate lighting at road construction sites are not uncommon.

Beyond the lighting problems, Ballenger failed to follow the recommended procedure for providing an adequate taper lane for merging traffic. At the posted 45 mph speed limit on the ramp, the taper should have been 1,350 feet long, whereas it was only 104 feet. The industry formula for this short length mandated a speed limit of only four mph, but no speed limit under forty-five was posted. Ballenger maintained that the physical characteristics of this site prevented the longer taper required by the MUTCD. Accordingly, an'expert witness testified that the ramp should have been completely closed to traffic during the four nights that work occurred. Ballenger claimed that such would have been too disruptive to traffic flow, but conceded that it had recommended such a lane closure to the DOT, and that on at least one night the lane was actually closed for Ballenger’s work. Two years after the construction, Ballenger and its expert witness went to the site to set up barrels as they were arranged on the night of the accident. Ballenger found it necessary to close down the ramp for the safety of people at the site.

The expert also testified that the unlit signage leading up to the construction site was inadequate per industry standards. Other witnesses testified that the sharp left turn into the fast lane of 1-20 was difficult and dangerous, and that immediately following the accident Ballenger placed the barrels at a softer angle. A water truck on site could have been used as a crash barrier as was done on other sites, but Ballenger refused to provide the manpower for such.

(2) Brownley’s intoxication.

Despite the evidence of negligence, Ballenger argues that the true proximate cause of the accident was Brownley’s inebriation, and that even if the lighting and other traffic control had been done, or even if the lane had been closed, Brownley in his alcohol-influenced state would have not seen anything and would have crashed through the barricade regardless. Ballenger emphasizes the findings of a test showing Brownley had a blood-alcohol level of .13 grams about one- and-one-half hours after the accident, which exceeded the legal limit for. driving.

This argument assumes the evidence was undisputed Brownley was intoxicated. This is not so. Brownley testified he was not intoxicated, and the first two people to speak face-to-face with Brownley within minutes after the accident testified he exhibited no symptoms of intoxication and they smelled no alcohol. After the accident Brownley ran to get help, which one defense witness testified was consistent with sobriety. The defense toxicologist admitted that eating a heavy starchy meal would delay the absorption of alcohol up to

three hours, and therefore the blood alcohol level may have been less than .13 at the time of the accident.

Ballenger’s citations to cases holding that intervening unforeseeable criminal acts may break the chain of causation are therefore irrelevant. The jury, which also entered the verdict against the defaulting Brownley, may have found that Ballenger was negligent in not closing the ramp or in not having proper lighting or taper length and that Brownley was negligent in failing to maintain a proper lookout. Looking over one’s shoulder to prepare to merge can be expected on a freeway entrance ramp. While Brownley’s failure to discern the unlit construction site surrounded by unlit reflective barrels may have been negligent, it was also foreseeable. The stated purpose of requiring such lighting was to protect workers from passing motorists.

“ ‘If the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act. That is a jury question.’ [Cits.]” “Clearly there can be more than one proximate cause of an accident. . . .”

Watson v. Marshall, cited by Ballenger, is distinguishable. In Watson a driver in dense fog did not see various signs as she exited I-85 onto 1-185 and turned sharply to the left to proceed in the wrong direction, resulting in a collision. “Assuming DOT did something negligent, we have said before that where a person is engaged in potentially dangerous conduct and does not know what he is doing but forges ahead to do it anyway, it cannot be reasonable, proper or warranted to do it. [Cit.]” Brownley could reasonably have expected the road ahead of him to be clear as he looked over his shoulder to discern the merging traffic.

(b) Ballenger points out that Gaines originally pled that Brownley was intoxicated and that this caused the accident. Ballenger argues that because Gaines did not formally withdraw these allegations, Gaines cannot now claim that Brownley was sober, even though there was evidence of his sobriety introduced at trial.

A party is bound by material allegations made in his pleadings so long as they remain in his pleadings, and he will not be allowed to disprove an unwithdrawn admission made in them. But the process of dispute resolution by litigation does not end the matter there. “[B]y admitting the evidence [at trial] and allowing the factfinder to consider it, the trial court has in effect, either sua sponte or by overruling an opposing motion, tacitly permitted the pleading party to withdraw the admission contained in the pleadings.” Where the pleadings are deemed amended, “the admission contained therein remains to be utilized as evidence of fact which the admitting party can explain but may be unable to conclusively refute. [Cits.]”

Prior to trial Gaines moved in limine to exclude evidence of Brownley’s nolo contendere plea on the charge of driving with a blood-alcohol level over the legal limit. Counsel for the DOT (a co-defendant) argued that the complaint alleged Brownley was driving under the influence and that Gaines was now taking a different position. The court ruled that although the circumstances of the plea would be admissible, Gaines could explain it or present other evidence on intoxication. No one objected to this ruling. Gaines presented three witnesses who testified Brownley was not intoxicated. Ballenger did not object to this testimony, but only noted during its directed verdict argument that Gaines had changed his position from his original pleadings. In the court’s charge to the jury, it noted that although Gaines had originally alleged Brownley was intoxicated, Ballenger was now the party contending such.

Thus, the court implicitly if not expressly allowed Gaines to withdraw the admissions, and the jury was properly allowed to consider the admissions and the evidence contradicting them.

2. Plaintiff as licensee.

In its second enumeration, Ballenger contends Gaines was a licensee as to Ballenger, who breached no duty to avoid wilfully and wantonly injuring him. Under premises liability law, an occupier of land must exercise ordinary care in keeping the premises and approaches safe as to invitees. As to licensees, the occupier is liable only for wilful or wanton injury.

It is questionable whether premises liability law applies to contractors in public road construction projects. If not, then Ballenger owed Gaines “a duty of ‘ordinary care’ or reasonable care under the circumstances. OCGA § 51-1-2.” “ ‘A contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction. (Cits.)’ [Cit.]”

If premises liability law applies, Ballenger’s argument still fails. “To determine whether a person is an invitee or a mere licensee, the nature of his relation or contact with the owner or occupier of the premises must be determined. The test is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience. There must be a mutuality of interest in the subject to which the plaintiff’s business related, even if the subject of the business is not for the benefit of the defendant. An invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.”

Ballenger and Gaines both had an interest in the effectiveness of the saw blades being used by Eaton. Eaton was authorized to invite Gaines to the project site, which it did. Gaines checked in with Ballenger before going on-site. The project was behind schedule, and Ballenger stood to gain if better saw blades could accomplish the job more quickly. Ballenger had often allowed saw blade representatives on its job sites (including when Eaton was the sub-contractor) to perform such field tests. Gaines wanted to field test the saw blades so he could sell more or better blades to his customer, Eaton. The field testing being done by Gaines could be found to be a common interest of Ballenger and Gaines, even if it was not for the direct benefit of Ballenger. Licensee cases cited by Ballenger are factually dissimilar. The jury was instructed on what constitutes a licensee and an invitee, and since there was some evidence to support a finding of invitee, we are not authorized to disturb the jury’s verdict on appeal.

3. Equal knowledge.

The fourth enumeration is that the inadequate traffic control was so open and obvious that the court should have held as a matter of law that Gaines had equal knowledge of it. “Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted. A plaintiff is held accountable for the failure to exercise due care for personal safety when doing an obviously dangerous act, and that failure is regarded as the sole proximate cause of the injury.” Unless the plaintiff’s knowledge is clear and palpable, the issue of exercising diligence for his own safety is a question for the jury.

Gaines, who had no training in road enclosures, testified, “I don’t want to even lead anybody to that conclusion that I know anything about traffic control.” He had not been to the site before and did not see the traffic control devices. Nor did he drive the ramp coming from Ballenger’s office site on Belair Road when he checked in. This evidence raised the inference that he did not see the inadequate signs, the non-functioning channelization lights, or the short length of the ramp taper, and that he did not have opportunity to understand or appreciate the increased risk created by the combination of these conditions so as to be prompted to reduce speed and change course. A jury could also find Gaines reasonably relied on Ballenger for safe traffic control. It was not error to refuse a directed verdict on this issue.

4. Jury array.

Fifth, Ballenger enumerates as error the overruling of its challenge to the jury array. Ballenger claimed Richmond County had illegaily revised its jury list in the fall of 1996 by replacing 1,933 names (which had become ineligible because of age, medical reasons, non-residence, or felony convictions) with eligible names. The latter consisted primarily of newly-registered voters, most of whom were between the ages of 18 and 24. As a result, more than 50 percent of Ballenger’s array consisted of persons 18 to 24 years old and only 17 percent were older than 35. Following selection, the jury consisted of four 20-year-olds, one 21-year-old, two 22-year-olds, a 26-year-old, a 28-year-old, two jurors over 35, and one juror who did not state his age.

Ballenger complained of an underrepresentation of persons 35 and older and moved to have the entire array stricken. The court conducted an evidentiary hearing, during which Ballenger presented two witnesses, both of whom served or had served as the Richmond County jury clerk. They explained the name replacements and testified that this strictly followed the judicially established Richmond County jury plan. The court denied the motion.

(a) Ballenger first argues the jury list was illegally revised to add the 1,933 names, for OCGA § 15-12-40 (a) (3) prohibits adding names until the list is completely exhausted or until a revised list has been properly created. But OCGA § 15-12-40 (a) (3) only applies to jury lists created by nonmechanical procedures, and the jury list of Richmond County was created by electronic means.

OCGA § 15-12-40 (b) applies, which in subsection 2 provides: “Once the trial or grand jury lists, or both, are established, the board of jury commissioners may revise such lists from time to time by adding new names to the lists, correcting names and other data on the lists, and deleting names from the lists by reason of death or other legal cause.” The replacement of the 1,933 ineligible names with eligible names was lawful.

(b) Ballenger’s second argument is that OCGA § 15-12-40 (a) (1), which applies to lists electronically created pursuant to certain court-established plans as here, requires the board of jury commissioners, in composing the trial jury list, to “select a fairly representative cross section of the intelligent and upright citizens of the county.” Ballenger contends the infusion of the 1,933 names consisting primarily of 18 to 24-year-olds skewed the jury list unfairly.

A party challenging a jury array must show the underrepresented group is distinct or cognizable. Claiming significant overrepresentation of those under 25 (and concomitant underrepresentation of those 25 and older), the defendant in Anthony v. State failed under similar circumstances to meet his burden. The analysis in Anthony applies here.

“To show that a group is distinct or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group’s interests cannot be adequately represented if the group is excluded from the jury selection process. Although earlier Georgia Supreme Court cases stated that age is not a recognized class for purposes of jury representation, subsequent cases have held that whether age is a cognizable class for jury selection purposes is a question of fact which will depend in each case upon such factors as the time and location of trial. At least one trial court has found young people (18 to 29-year-olds) to be a cognizable group. . . . See Parks[ v. State, 254 Ga. 403], 409-410 [(330 SE2d 686) (1985)]. Unlike the defendant in Parks, however, defendant here failed to produce evidence of common attitudes and values on the part of the alleged group. Nor did [it] show that the group had a definite composition; indeed, defendant argued at some points . . . that the overrepresented group was 18 to 24-year-olds and in others that it was 18 to 2[0]-year-olds. Moreover, defendant’s argument ignores the fact that the group of 18 to 24-year-olds are over rather than underrepresented. Thus, even if those under 24 are shown to be a distinct and cognizable group for jury selection purposes, those 25 and older clearly are not, and they — the underrepresented group — are the pertinent group in this analysis. Accordingly, defendant failed to establish that a cognizable group was significantly underrepresented in [its] array, and the trial court did not err in rejecting [its] challenge.”

Ballenger has also “failed to show why young adults 18 to 24 were included within [its] grouping and those 18 to 25, 29, or some other age were not.” As in Spivey v. State, Ballenger simply “made no attempt” to show any particular age group was cognizable other than a parting statement in its reply brief that persons under 21 are not allowed to drink alcohol and that this case involved an issue of drinking and driving. But none of Ballenger’s statistics showed that those 21 years old and older were underrepresented on the array, and Ballenger presented no expert testimony about the characteristics of this group. Failure to show a cognizable group dooms the challenger.

Decided March 12, 1998

Reconsideration denied March 25, 1998

Fulcher, Hagler, Reed, Hanks & Harper, David P. Dekle, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., James W. Ellison, L. Matt Wilson, for appellee.

5. Manual as evidence.

The sixth enumeration addresses the Manual for Uniform Traffic Control Devices as evidence. In a pretrial hearing, defendants had unsuccessfully moved to exclude the manual, arguing it was nothing more than a treatise whose information should come from the witness stand and should not go out with the jury as an exhibit. The manual was admitted as an exhibit, and the plaintiff’s expert, the DOT expert, and the DOT representative testified to its standards and contents. On appeal, Ballenger claims this “effectively put written testimony into the jury room, unduly emphasizing the testimony of Gaines’ expert at great harm to the appellant.”

At least two reasons undermine the claim.

First, Ballenger’s contract with the DOT, which was stipulated into evidence by all parties, expressly incorporated the manual into its terms. As a part of a contract already admitted into evidence, the manual was also admissible to complete the picture of the contract requirements.

Second, Isom v. Schettino held the court erred in excluding this manual in a negligence case concerning traffic controls. In other traffic control device cases the court has expressed concern when the manual is not introduced into evidence. Admission of the manual was not error.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

       OCGA § 9-11-50 (a).

        Hutcheson v. Daniels, 224 Ga. App. 560 (481 SE2d 567) (1997); see Dept. of Transp. v. Blair, 220 Ga. App. 342, 343 (1) (469 SE2d 446) (1996).

       See Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 777 (2) (101 SE2d 603) (1957) (“ A contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction’ ”).

       OCGA § 32-6-50 (a); Dept. of Transp. v. Brown, 267 Ga. 6, 8 (2) (471 SE2d 849) (1996) (MUTCD is generally recognized source of traffic control standards),

       See Blair, supra, 220 Ga. App. at 343 (violation of MUTCD is negligence).

       See, e.g., Turkett v. Central of Ga. R. Co., 117 Ga. App. 617, 618-619 (1) (161 SE2d 362) (1968) (unlighted warning sign); Brown, supra, 96 Ga. App. at 777 (failure to place barricades, torches, red flags or other warning devices); Trammell v. Matthews, 84 Ga. App. 332, 338 (1) (66 SE2d 183) (1951) (failure to provide proper barricades, lighted signs and warnings at road block); see also Mathis v. Nelson, 79 Ga. App. 639, 641 (1) (54 SE2d 710) (1949) (unlit tractor).

       OCGA § 40-6-391 (a) (5).

       See, e.g., Brown v. Mobley, 227 Ga. App. 140 (488 SE2d 710) (1997) (physical precedent only).

       See Mathis, supra, 79 Ga. App. at 642-643 (“A motorist upon the public highways of this State has a right to assume that the road ahead of him is clear of structural obstructions”).

        Blair, supra, 220 Ga. App. at 344 (1) (b); see Smith v. Commercial Transp., 220 Ga. App. 866, 867 (1) (470 SE2d 446) (1996) (one who is negligent in obstructing a roadway is not relieved of liability by the negligence of a motorist encountering the obstruction); Schernekau v. McNabb, 220 Ga. App. 772, 774 (470 SE2d 296) (1996) (even criminal acts will not break the proximate cause chain if they are foreseeable). Compare Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176-177 (1) (342 SE2d 497) (1986) (merely furnishing a non-dangerous condition creates no liability for damages caused by an unforeseeable negligent act).

        Smith, supra, 220 Ga. App. at 867.

       212 Ga. App. 206 (441 SE2d 427) (1994).

        Watson, supra, 212 Ga. App. at 208 (2).

        Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 519 (1) (434 SE2d 63) (1993).

        Walker, supra, 209 Ga. App. at 520; see Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997) (“trial court [can] treat such evidence as amending the pleadings”).

        Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 603 (385 SE2d 677) (1989); see OCGA § 24-3-30.

       OCGA § 51-3-1.

       OCGA § 51-3-2 (b); Lee v. Myers, 189 Ga. App. 87, 88 (1) (374 SE2d 797) (1988).

       See Gleaton v. APAC-Georgia, 228 Ga. App. 52, 54 (491 SE2d 138) (1997); Powley v. Precision Plumbing Co., 222 Ga. App. 848, 850 (2) (476 SE2d 777) (1996).

        Powley, supra, 222 Ga. App. at 850 (2).

        Gleaton, supra, 228 Ga. App. at 54 (2).

       (Citations and punctuation omitted.) Atkins v. Tri-Cities Steel, 166 Ga. App. 349, 350 (304 SE2d 409) (1983).

       See generally Davis v. Garden Services, 155 Ga. App. 34, 35 (1) (270 SE2d 228) (1980) (“The guests of... tenants, those coming on the leased premises for business purposes beneficial to the tenant, and those doing business with him are there by his invitation and stand in his shoes insofar as they suffer injury due to the negligence of the owner or occupier of the premises”); Brown v. Clay, 166 Ga. App. 694, 695 (305 SE2d 367) (1983) (same).

       See Wade v. Polytech Indus., 202 Ga. App. 18, 24 (4) (413 SE2d 468) (1991) (an implied invitation results when owner permits something to be done on the property consistent with the business purposes of the owner).

        See Atkins, supra, 166 Ga. App. at 350.

       See Strickland v. ITT Rayonier, 162 Ga. App. 317 (1) (291 SE2d 396) (1982) (contract specifically defined relationship as that of licensee); Chambers v. Peacock Constr. Co., 115 Ga. App. 670, 676-677 (4) (155 SE2d 704) (subcontractor had no mutual interest with vendor visiting general contractor), aff’d, 223 Ga. 515 (156 SE2d 348) (196.7); Pafford v. J. A. Jones Constr. Co., 9 SE2d 408 (N.C. 1940) (visitor had no sales or contract relationship with either the subcontractor or the contractor).

       (Citations omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995).

        Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994).

       See OCGA §§ 15-12-40 (b) (1); 15-12-42 (b).

        Anthony v. State, 213 Ga. App. 303, 305 (2) (444 SE2d 393) (1994).

       Supra, 213 Ga. App. at 303.

       (Citations and punctuation omitted.) Anthony, supra, 213 Ga. App. at 305-306 (2).

        Potts v. State, 259 Ga. 812, 813 (1) (388 SE2d 678) (1990).

       253 Ga. 187, 199 (7) (a) (319 SE2d 420) (1984).

       OCGA § 3-3-23.

       See Parks, supra, 254 Ga. at 409-410 (6) (b).

       See Wellons v. State, 266 Ga. 77, 90-91 (29) (463 SE2d 868) (1995) (no showing “excluded age groups are distinct and cognizable”); Henry v. State, 265 Ga. 732, 734-735 (3) (a) (462 SE2d 737) (1995) (no showing college students were cognizable group); Bright v. State, 265 Ga. 265, 283 (12) (455 SE2d 37) (1995) (no showing 18 to 30-year-olds were cognizable group); Mincey v. State, 251 Ga. 255, 262 (7) (304 SE2d 882) (1983) (no showing 18 to 23-year-olds were cognizable group).

       129 Ga. App. 73, 77 (1) (199 SE2d 89) (1973).

       See Blake v. Continental S.E. Lines, 161 Ga. App. 869, 873, fn. 1 (289 SE2d 551) (1982); Maxwell v. State, 97 Ga. App. 334, 339 (4) (103 SE2d 162) (1958).


author: Birdsong, Presiding Judge.

text:
    A97A2573.
    JOHNSON v. PULASKI COUNTY BOARD OF EDUCATION.
    (499 SE2d 345)
   Birdsong, Presiding Judge.

Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a) (1), Judy Johnson appeals the superior court’s judgment reversing the decision of the State Board of Education (“State Board”) which reversed the decision of the Pulaski County Board of Education (“Pulaski Board”) to demote Johnson from her position as a middle school principal. Johnson contends the superior court erred by failing to affirm the State Board’s determination that the notice of the charges provided Johnson by the Pulaski Board were not specific enough to satisfy the requirements of OCGA § 20-2-940 (b) (1) and (2), erred by holding that Johnson was required to file a cross-appeal regarding the State Board’s decision regarding the charges, and erred by reversing the decision of the State Board that Johnson was denied due process because the chairman of the Pulaski Board failed to recuse himself from the proceedings.

Johnson had served as a middle school principal for several years when the superintendent of schools notified her of his intention to recommend to the Pulaski Board that her contract not be renewed for the 1996-1997 school year. Johnson then requested notice of the basis for this action and requested a hearing under OCGA § 20-2-940, Georgia’s Fair Dismissal Law.

At the hearing, Johnson contended that she was denied due process because the notice given her before the hearing failed to give her sufficient information to allow her to prepare a defense, failed to give her enough information to allow her to understand the exact nature of the charges against her, and failed to give her enough information to allow her to show any error that might exist. Johnson also sought to have the chairman of the Pulaski Board recused from participating in the hearing because of his involvement in the allegations against her as well as his bias. The Pulaski Board, however, denied all of Johnson’s challenges to the adequacy of the notice of the charges against her, did not recuse the chairman from participating in the hearing, and then upheld the decision not to renew Johnson’s contract as a principal. Nevertheless, the Pulaski Board did offer her a teaching position in the schools.

After Johnson appealed the Pulaski Board’s decision to the State Board, the State Board ruled that she was denied due process because the chairman of the Pulaski Board was not recused despite having a direct interest in whether Johnson continued as a principal. The State Board also considered whether the notices given Johnson were drawn with sufficient specificity, but whether the State Board ruled on this issue is a matter now before this Court. Johnson contends the State Board ruled that the notices were not legally sufficient; the superior court ruled that the State Board failed to rule on the issue.

After the State Board’s decision, the Pulaski Board appealed the decision to the superior court and the court reversed the decision of the State Board. The superior court found that Pulaski Board’s decision on the recusal of its president was proper, and refused to consider the issue concerning Johnson’s allegation regarding the specificity of the charges against her because the court found that the State Board had not ruled definitively on that issue and Johnson had not filed a cross-appeal pursuant to OCGA § 5-6-38 challenging the State Board’s failure to rule on the notice issue. Held:

1. The superior court’s review is on the record of the proceedings (OCGA § 20-2-1160 (e)) and the any evidence rule applies. Ransum v. Chattooga County Bd. of Ed., 144 Ga. App. 783 (242 SE2d 374). School appeals are governed by procedures set out in OCGA §§ 20-2-940 and 20-2-1160 and do not fall within the Georgia Administrative Procedure Act. Rabón v. Bryan County Bd. of Ed., 173 Ga. App. 507 (326 SE2d 577). Further, the “courts will not interfere with a local board’s administration of its schools unless the board’s actions are contrary to law or it appears that the board has grossly abused its discretion. [Cits.]” D. B. v. Clarke County Bd. of Ed., 220 Ga. App. 330, 333 (469 SE2d 438).

2. Johnson contends the superior court erred in holding that the issue of the specificity of the charges was not properly before the superior court because the State Board did not rule on Johnson’s allegation that the notice of the charges provided Johnson by the Pulaski Board was not specific enough to satisfy the requirements of OCGA § 20-2-940 (b) (1) and (2). Review of the decision of the State Board does not support the superior court’s position. After setting out the standards to be employed in considering the issue, the State Board ruled: “The charges prepared in the instant case were broadly drawn and did not let Appellant fairly prepare to defend against them. . . . The charges gave a list of witnesses, but did not identify what they would be testifying about. In addition, many of the charges did not identify who was involved and the dates the events occurred when that information was necessary to present an effective defense. Although there were also some charges that were specific enough in the circumstances to permit Appellant to present a defense, it is impossible to tell what effect the evidence of the deficient charges had on the Local Board. Appellant continually raised objections based on the lack of knowledge that witnesses would be testifying about specific incidents that were not mentioned in the charge letter. The objections, however, were regularly overruled. We need not, however, detail all the charges because of our conclusion that Appellant was denied due process when the chairman failed to recuse himself.” We find that the State Board’s decision on this issue, quoted above, is sufficient to constitute a ruling that the charges were not sufficient to allow Johnson to prepare a defense. The sentence that the State Board would not detail all the defective charges does not detract from this ruling. Instead, the State Board merely decided that it would not set out all the deficiencies and test for prejudice because it was reversing the decision of the Pulaski Board because of the failure to recuse the president of the Pulaski Board. Unless one is to believe that the State Board intended that Johnson’s appeal would be resubmitted to the Pulaski Board based upon the same defective charges, however, the State Board’s decision can only be considered a ruling that the charges were defective and must be re-drafted before presentation to the properly constituted board. Accordingly, we find that the issue of the sufficiency of the charges against Johnson was decided in her favor and, thus, was ripe for consideration by the superior court but that the Pulaski Board did not appeal that decision. Therefore, there was no need for Johnson to appeal a favorable ruling.

3. In view of our disposition of the error enumerated in Division 2, Johnson’s allegation concerning the superior court holding that Johnson was required to file a cross-appeal regarding the State Board’s decision regarding the charges is moot. “A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.” (Citations and punctuation omitted.) Morgan v. Miller, 191 Ga. App. 803, 804 (383 SE2d 183).

4. Johnson contends the superior erred by reversing the decision of the State Board that Johnson was denied due process because the chairman of the Pulaski Board failed to recuse himself from the proceedings. Johnson argues, and we agree, that Uniform Superior Court Rule 25 does not apply to school board proceedings under OCGA §§ 20-2-940 and 20-2-1160. Although OCGA § 20-2-940 (e) (4) concludes with the statement “[ejxcept as otherwise provided in this subsection, the same rules governing nonjury trials in the superior court shall prevail,” this subsection concerns the actual conducting of the hearing itself and does not purport to address pre-hearing matters. Further, in any event, we find that by considering the motion to recuse as presented, the Pulaski Board waived any defects in the motion to recuse. See Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696); Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536). Moreover, the Pulaski Board did not challenge the proffer that Johnson’s attorney made concerning the chairman’s previous involvement in seeking her termination. See Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 300 (387 SE2d 898).

Decided February 23, 1998

Reconsideration denied March 25, 1998

James D. Dunham, for appellant.

Harben & Hartley, Sam S. Harben, Jr., Hall & Hall, J. Johnson Hall, for appellee.

Accordingly, as the information available to the State Board showed only the involvement by the president of the school board in seeking Johnson’s termination, we cannot say that the record does not support the State Board’s decision that the Pulaski Board deprived Johnson of due process by denying her motion to recuse. Ransum v. Chattooga County Bd. of Ed., supra. Although the Pulaski Board has called our attention to cases in which recusal of a member of the board was not warranted, we find them to be distinguishable from this case in which the president was personally involved in the criticism of Johnson’s performance and, according to Johnson’s unrebutted proffer, was personally involved in seeking her removal.

Therefore, we find that the superior court erred by reversing the State Board on this issue. Accordingly, the decision of the superior court is reversed and the case remanded to the superior court with instructions to remand the case to the Pulaski Board for further proceedings in accordance with the decision of the State Board.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: Johnson, Judge.

text:
    A98A0132.
    HEINSIMER v. WELLINGTON LEISURE PRODUCTS, INC.
    (500 SE2d 7)
   Johnson, Judge.

This case arises from a complex agreement entered into between Wellington Leisure Products, Inc. (“Wellington”), Peter Heinsimer and Daniel Estreich. The record shows that in 1982, Wellington, Heinsimer and Estreich entered into an agreement whereby Heinsimer and Estreich were to market and sell craft products manufactured by Wellington. The proceeds of the sale of the craft products were collected by a company called Maxwell International of Delaware, Inc. (“Maxwell”), which was owned 50 percent by Wellington and 25 percent each by Heinsimer and Estreich. After paying certain expenses, Maxwell paid the remainder to Wellington and an Estreich & Heinsimer partnership, with each receiving 50 percent. The parties continued under this arrangement until 1989, when the IRS audited Maxwell and characterized the payments to the parties as non-deductible dividends, rather than deductible commissions, as Maxwell claimed in its tax returns. Since using Maxwell as a corporate vehicle to implement the joint venture would double their tax liability, the Estreich & Heinsimer partnership began receiving commissions directly from Wellington.

In a written agreement dated November 22, 1993, Heinsimer agreed to repay Wellington for the tax settlement in installment payments that were to begin in July 1994. Two days before his first payment was due, Heinsimer informed Wellington and others by letter that he wanted to sell his interest in the business and “move on.” The letter further stated that Heinsimer and Estreich “have come to the conclusion that it will be impossible to resolve [their] differences in a productive mutually satisfactory way” and that Estreich “started the business over twenty years ago and has a greater desire to continue with it.” After viewing a draft of this letter, Estreich made at least one change to make it clear that Heinsimer, and not Estreich, was interested in withdrawing from the agreement and moving on. Heinsimer contends his letter was not meant to be a withdrawal from the agreement with Wellington.

In response to Heinsimer’s letter, Frank Carter, the President of Wellington, stopped payment on Estreich & Heinsimer’s advance commission check for the first month of the new fiscal year. Carter testified that he wanted to determine the status of the relationship between Heinsimer, Estreich and Wellington prior to advancing any more money to the Estreich & Heinsimer partnership. He was particularly concerned because Heinsimer’s letter indicated that Heinsimer and Estreich had been having problems for some time and there was not enough money to support the partnership. Prior to the letter he was unaware of any dispute between the two partners. A notice of the stop payment was sent to the offices of the Estreich & Heinsimer partnership.

Following Heinsimer’s announcement that he wanted to “move on” and receipt of the notice stopping payment on the check to the partnership, Estreich wrote a letter to Heinsimer resigning from their partnership. It is undisputed that Wellington officers and employees had no involvement in the termination of the Estreich & Heinsimer partnership and did not know of Estreich’s resignation until they received a copy of the letter. Carter testified that the dissolution of the Estreich & Heinsimer partnership concerned him because the partnership was a party to the agreement with Wellington and all commission payments were made by Wellington to the partnership.

Carter and Estreich began negotiations for an agreement whereby Estreich would continue marketing and selling Wellington’s products. The undisputed testimony is that no discussions took place between Wellington and Estreich until after Heinsimer indicated his intention to “move on” and Estreich resigned from the partnership. Wellington made its first offer to Estreich on July 5, 1994, and, after receiving Estreich’s reply on July 7,1994, modified its offer to include terms agreeable to Estreich. An agreement was entered into on July 11,1994, but was dated July 1,1994, as that was the beginning of the new fiscal year. Other than receiving a letter from Estreich on July 8, 1994, indicating Estreich was accepting an offer from Wellington, Heinsimer did not speak with Estreich regarding Estreich’s negotiations or agreement with Wellington.

Wellington filed suit against Heinsimer and Estreich to recover unearned commissions advanced to Heinsimer and Estreich and for breach of promise to repay the funds loaned by Wellington to pay for the tax settlement. The complaint alleged five counts: (1) money had and received, (2) breach of promise to pay, (3) assumpsit, (4) breach of contract, and (5) bad faith. The claims against Estreich were dismissed when Estreich agreed to pay the amounts due. Heinsimer answered and asserted six counterclaims against Wellington: (1) breach of fiduciary duties, (2) “wrongful dissolution of joint venture,” (3) accounting of commissions and profits, (4) and (5) contribution and indemnification from Estreich, and (6) “breach of majority stockholder’s duty of fair and equitable treatment of minority shareholders.”

Wellington moved for summary judgment on Counts 1 and 2 of its five-count complaint against Heinsimer and on Counts 1, 2 and 6 of Heinsimer’s counterclaim against it. The trial court denied Wellington’s motion for summary judgment as to Count 1 of its complaint, involving money had and received, granted Wellington’s motion for summary judgment as to Count 2 of its complaint, involving the breach of promise to pay, and granted Wellington’s motion for summary judgment as to Counts 1, 2 and 6 of Heinsimer’s counterclaim, involving breach of fiduciary duty, wrongful dissolution of joint venture and breach of majority stockholder’s duty of fair and equitable treatment of minority shareholders. Heinsimer only appeals the grant of summary judgment on his counterclaims for “wrongful dissolution of joint venture” and “breach of majority stockholder’s duty of fair and equitable treatment of minority shareholders.” For the reasons discussed below, we affirm.

Summary judgment is appropriate when the court, viewing all evidence and drawing all inferences in a light most favorable for the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id.

1. Heinsimer argues the trial court erred in granting Wellington’s motion for summary judgment on his counterclaim for “wrongful dissolution of a joint venture.” He alleges Wellington and Estreich conspired to “freeze him out” of the joint venture to sell Wellington products. However, Heinsimer cites no evidence proving that Wellington and Estreich conspired to exclude him from the venture, but rather offers inferences from circumstantial evidence, which he contends the jury could believe and, therefore, find in his favor. It is well-established that “[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Citation and punctuation omitted.) Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678) (1993). Moreover, in determining whether to grant a motion for summary judgment, a finding of fact which may be inferred, but is not demanded, by circumstantial evidence has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred exist. See Beeson v. Crouch, 227 Ga. App. 578, 580 (1) (490 SE2d 118) (1997). Although all evidence adduced on motion for summary judgment, including the testimony of Heinsimer, must be construed against Wellington, the testimony of either party is to be most strongly against him where it is self-contradictory, vague or equivocal. Id.

Even accepting Heinsimer’s version that his letter was not meant to be a termination letter but was merely a letter notifying Wellington of his desire to sell his stock and leave the joint venture in the future, Heinsimer’s letter precipitated Estreich’s withdrawal from the Estreich & Heinsimer partnership. Dissolution of the Estreich & Heinsimer partnership directly affected the joint venture because the partnership was a party to the agreement with Wellington and all commission payments were made by Wellington to the partnership.

Contrary to Heinsimer’s claim that he was frozen out, the undisputed evidence is that after the dissolution of the Estreich & Heinsimer partnership, Wellington offered Heinsimer the same terms to continue marketing its products as those offered to Estreich, but Heinsimer refused the offer. Furthermore, there is no evidence indicating that Wellington officers and employees had any involvement in the termination of the Estreich & Heinsimer partnership or had any knowledge of Estreich’s letter until they received a copy. The undisputed evidence further shows that no discussions took place between Wellington and Estreich until after Heinsimer indicated his intention to “move on” and Estreich subsequently resigned from the partnership.

Decided March 11, 1998

Reconsideration denied March 25, 1998.

Strauss & Walker, John T. Strauss, for appellant.

Long, Aldridge & Norman, Barry J. Armstrong, Phillip A. Brad ley, Lambros & Lambros, Michael G. Lambros, Alexander & Royston, James B. Alexander, for appellee.

Heinsimer fails to point to any evidence showing that Wellington and Estreich conspired to exclude him from the joint venture. His attempt to draw negative inferences from documents and actions when undisputed evidence shows these inferences were incorrect does not create material issues of fact. The trial court did not err in granting Wellington’s motion for summary judgment as to this count of Heinsimer’s counterclaim.

2. Heinsimer also alleges the trial court erred in granting Wellington’s motion for summary judgment as to his counterclaim that Wellington “breached its duties of fair and equitable treatment of a minority shareholder.” Again, this claim is based on Heinsimer’s assertion that Wellington, a majority stockholder in Maxwell, breached its duty of fair and equitable treatment to Heinsimer, a minority stockholder, by freezing Maxwell out of the joint venture and by competing with Maxwell. It should be noted that the trial court’s order on this particular issue does not preclude Heinsimer from seeking a fair and equitable price for his Maxwell stock.

Even if Wellington can be deemed a majority shareholder with only a 50 percent interest in Maxwell, which we need not determine for purposes of resolving this enumeration of error, Heinsimer failed to introduce any evidence that he was not given fair and equitable treatment. As discussed in Division 1, it is undisputed that Estreich resigned from the Estreich & Heinsimer partnership without the direction or prior knowledge of Wellington. Because the partnership was a party to the joint venture and Wellington paid Estreich and Heinsimer through the partnership, Wellington negotiated a new agreement with Estreich to insure that Estreich would continue selling Wellington products. Heinsimer was offered the same deal, but refused it. The trial court did not err in granting Wellington’s motion for summary judgment regarding this count of Heinsimer’s counterclaim.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: Judge Harold R. Banke.

text:
    A98A0159.
    MANNING v. THE STATE.
    (499 SE2d 650)
   Judge Harold R. Banke.

Claudia Denise Manning was convicted of simple battery and aggravated assault involving the same victim, her boyfriend.

The evidence, when viewed in a light most favorable to the verdict, showed that Manning entered the victim’s home without permission, then struck the victim in the face with a wooden object when he asked her to leave. About six weeks later, Manning drove up beside the same victim, left her vehicle and stabbed him in the shoulder. Manning then backed her vehicle into him and sped away. Manning claimed self-defense as to both incidents.

Certified copies of the victim’s medical records from the stabbing incident were admitted at trial. In addition, the court admitted a Clayton County-Flint River Center Family Information Perspective (“questionnaire”) that the victim discovered mixed in with his papers in a box in Manning’s apartment. On this questionnaire, Manning listed the patient/client as her young daughter. In response to one inquiry, Manning wrote, “Daughter witnessed my violent crime. . . .” Manning made several other highly inculpatory admissions as to her rage, anger, problems with temper control, as well as specific past incidents of her abuse of boyfriends, including the victim here. The court excluded one statement involving past incidents of violence with previous boyfriends and ordered it redacted. Held-.

1. The trial court did not abuse its discretion in admitting the questionnaire into evidence. Before a person can invoke the confidentiality privilege under OCGA § 24-9-21 (5), she must show that the requisite psychologist-patient or psychiatrist-patient relationship existed to the extent that treatment was given or contemplated. Strickland v. State, 260 Ga. 28, 30 (5) (b) (389 SE2d 230) (1990). In this case, Manning failed to show that a professional relationship had been actually contemplated or formed or psychological treatment rendered to her or her daughter. Compare Mrozinski v. Pogue, 205 Ga. App. 731, 733 (1) (423 SE2d 405) (1992). Manning offered no appointment records, office receipts, or any evidence to even suggest that a confidential professional relationship existed. The questionnaire was not obtained from a medical provider or from the unauthorized disclosure of clinical records but from a box in her apartment. Moreover, Manning offered no evidence that the information she provided in the questionnaire was ever imparted to a medical professional. So it cannot be said that the document constituted a privileged communication within the meaning of OCGA § 24-9-21 (5) or (6). See Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995).

Notwithstanding Manning’s assertion, the State did not impermissibly inject her character into the case. During cross-examination of the victim, defense counsel elicited the statement previously deemed inadmissible. The court denied Manning’s motion for a mistrial, and Manning declined any curative instruction. Because defense counsel elicited the redacted information, Manning cannot now complain about that testimony. Heard v. State, 204 Ga. App. 757, 759 (4) (420 SE2d 639) (1992). See Littlefield v. State, 197 Ga. App. 343, 344 (2) (398 SE2d 375) (1990).

2. Manning contends that the trial court erred in admitting the victim’s medical records. The State offered the records to prove that the victim had required medical treatment for the injuries Manning inflicted. Over a hearsay objection, the court admitted a certified copy of the victim’s hospital records and gave the jury a limiting instruction. However, statutes, like OCGA § 24-7-8, which pertain to the authentication of documents do not remove hearsay considerations. McGaha v. State, 221 Ga. App. 440, 441 (471 SE2d 533) (1996). Pretermitting whether it was correct to admit the records, Manning failed to show the requisite harm for reversal in light of the overwhelming evidence of her guilt. See Southern R. Co. v. Hand, 216 Ga. App. 370, 374 (5) (454 SE2d 217) (1995).

3. We reject Manning’s contention that she was entitled to a directed verdict because the State failed to rebut her affirmative defense. After evidence of self-defense is presented, the State bears the burden of disproving that defense beyond a reasonable doubt. Fields v. State, 258 Ga. 595, 596 (2) (372 SE2d 811) (1988); see OCGA § 16-3-28. Whether Manning engaged in two unprovoked attacks or acted in defense of herself and her child was solely for the jury to resolve. Luke v. State, 222 Ga. App. 203, 206 (2) (474 SE2d 49) (1996). Because the evidence adduced at trial was sufficient to authorize the jury’s finding Manning guilty beyond a reasonable doubt of aggravated assault and simple battery within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial court properly denied the motion.

4. The trial court did not err in refusing to permit Manning to ask the victim questions about his use of a false name or other social security numbers. The trial court granted the State’s motion in limine to preclude Manning from attempting to impeach the victim with his misdemeanor conviction for providing a false name, unless she produced a certified copy of the conviction. When defense counsel later attempted to inquire about the prior conviction without first showing the certified copy, the court prohibited that line of questioning. This was improper impeachment, and the trial court properly sustained the objection. Roberts v. State, 267 Ga. 669, 671 (2) (482 SE2d 245) (1997).

Decided February 27, 1998

Reconsideration dismissed March 25, 1998

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.