text:
    A02A0536.
    DOSTER v. BATES.
    (568 SE2d 736)
   Mikell, Judge.

Faye Doster is the daughter of Oneida McGuffey, who executed a quitclaim deed conveying title to a parcel of land and the home on the land to her husband, Johnny William McGuffey. After Johnny’s death, Doster filed an action to set aside the deed, arguing that her mother did not have the mental capacity to execute it. Frances Bates, the executrix of Johnny’s estate, filed a motion for summary judgment, which the trial court granted. On appeal, Doster argues that the trial court erred in granting summary judgment because a genuine issue of material fact remained as to her mother’s mental capacity to execute the deed. We affirm.

In reviewing the trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of fact and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law.

So viewed, the evidence shows that Oneida and Johnny McGuffey were married on August 14, 1984. Three days after the wedding, Oneida paid cash for a home at 245 Carwood Drive, Monroe, Georgia, and the deed was filed in her name alone. Oneida and Johnny lived together in the home until Oneida moved into a nursing home in March 1998. On January 5, 1995, Oneida executed a quitclaim deed transferring all of her rights and ownership in the 245 Carwood Drive property to Johnny. Johnny died in December 1999, leaving the property and his possessions to pass through his testamentary estate.

On January 4, 2000, Doster, as next friend of Oneida McGuffey, filed a complaint to set aside the quitclaim deed on the grounds that Oneida did not have the mental capacity to sign a legal document on January 5, 1995, because she had suffered from Alzheimer’s disease and dementia for an extended period of time prior to the date the deed was signed. Doster amended her complaint on November 20, 2000, to add a claim to void the transfer of title of two vehicles on September 14, 1993, from Oneida to Johnny. Bates filed a motion for summary judgment, arguing that Doster could not show that Oneida was mentally incompetent when the deed was executed and that the transfer of the vehicles’ titles could not be voided because Oneida never owned the vehicles. The trial court agreed and granted the motion.

1. In her sole enumeration of error, Doster argues that the trial court erred in granting Bates’s motion because a jury issue exists as to whether Oneida had the mental capacity to execute the quitclaim deed and to transfer the titles to the two automobiles. In support of her argument, Doster offered the deposition testimony of three physicians: Dr. C. Van Morris, Dr. Sarah McBee, and Dr. Palghat Mohan. She also submitted her affidavit and affidavits from two of her siblings.

Dr. Morris, a neurologist, first treated Oneida on February 11, 1993. Dr. Morris deposed that after conducting a physical and neurological examination of Oneida, he concluded that she probably suffered from dementia, which he defined as “literally a going away from the mind.” Dr. Morris next saw Oneida on May 12, 1993, and concluded that her mental status had not changed. At Oneida’s next visit on April 8, 1994, Dr. Morris concluded that she was “a little bit better oriented” but that she still had dementia, though it had not progressed much.

Dr. Morris saw Oneida again two days before she signed the deed in question. Oneida had been in the hospital because she had suffered a broken kneecap. When Dr. Morris saw her, she reported that she had taken two to three doses of Haldol because she had been agitated. Dr. Morris explained that Haldol is usually given in an attempt to decrease agitation and to induce sleep in individuals suffering from dementia. Dr. Morris recalled that Oneida was better by the time she was discharged. On Oneida’s next visit with Dr. Morris on March 14, 1995, he opined that she still suffered from dementia, but she had improved. By Oneida’s May 7, 1997 appointment, Dr. Morris highly suspected that she had developed Alzheimer’s disease, which Dr. Morris described is a subset of dementia.

During cross-examination, Dr. Morris stated that throughout the four years that he treated Oneida, he gave her “mini mental” status examinations, which measured her cognitive functions. Based on the test results, there was no progressive decline in Oneida’s mental status during the time that he treated her. When asked whether he had any knowledge as to whether Oneida understood the deed she executed on January 5, 1995, Dr. Morris replied that he did not.

Dr. McBee, an internist, deposed that she treated Oneida from March 31, 1992, through December 13, 1993. When Oneida visited Dr. McBee on December 15, 1992, she complained that she was becoming very forgetful. Dr. McBee recalled that other than Oneida’s complaint, she seemed to be neurologically intact. However, she thought Oneida’s memory loss might be caused by dementia or early Alzheimer’s disease, so when Oneida returned for a visit on January 8, 1993, complaining of feeling crazy, nervous, and forgetful, Dr. McBee referred her to a neurologist. Dr. McBee saw Oneida several times through the end of December and maintained that she suffered from Alzheimer’s disease.

On cross-examination, Dr. McBee explained that dementia involves a gradual loss of cognitive functions over years and that there are periods of lucidity or normal functioning for those suffering from it. Like Dr. Morris, Dr. McBee also deposed that she had no knowledge as to whether Oneida understood the deed when she executed it.

The last physician’s deposition testimony offered by Doster was that of Dr. Mohan, an internist. Dr. Mohan treated Oneida three times between 1989 and 1994. But from September 26, 1994, until her death, he saw her frequently. Dr. Mohan saw Oneida on December 27,1994, when she was in the hospital for her broken kneecap. At that time, he noted that she was confused to the point that she did not know what was going on. She was discharged on December 30, 1994, and Dr. Mohan did not see her again until June 7,1995. At that visit, Dr. Mohan noted that Oneida had a very poor memory. By her April 7, 1998 visit, Dr. Mohan stated that he knew that Oneida suffered from Alzheimer’s disease. On cross-examination, Dr. Mohan testified that he had no knowledge as to whether Oneida understood the deed she executed, but he did recall that she told him that she had given her house to her husband because she loved him.

Doster’s affidavit, as well as those from her siblings, averred that based on their interactions with Oneida, they concluded that she was not competent by 1993. However, these affidavits have no probative value.

The testimony of a nonexpert witness on the ultimate legal conclusion as to whether the mental condition of a grantor precluded her from making a deed has no probative value. Lack of mental capacity to make a deed can not be shown by the testimony of nonexpert witnesses who give their opinion that the mind of the grantor was unsound, when the reasons given by them for their opinion disclose nothing to authorize the conclusion of lack of mental capacity.

Doster contends that the evidence she offered established her mother’s state of mind within a reasonable amount of time both before and after the execution of the deed, which was sufficient to demonstrate her mother’s mental incapacity to execute the legal document. In support of her contention, she relies on Kievman v. Kiev-man, Horton v. Horton, Fleming v. Constantine, and Kesler v. Kesler, three of which are factually distinguishable. The other case does not include the facts upon which the decision was based.

In Kievman, a question of fact was created by evidence that on the day the will at issue was executed, the testator was unable to communicate intelligibly, and on the days before, the day of, and days after he executed the will, the testator was very ill, heavily medicated, and incoherent. In Horton, there was testimony from the two subscribing witnesses and the physician who treated the testator immediately before and after the execution of the will that the testator was not of sound mind when the will was executed. Finally, in Kesler, the doctor who testified that the grantor was of sound mind when he executed the document also testified on cross-examination that he would not say a person was of sound mind who had the symptoms displayed by the testator. There was no such evidence in this case. Instead, here, the affidavit of Scott Willis, the attorney who prepared the quitclaim deed, was the only evidence offered to show Oneida’s mental capacity on the day that she executed the deed. It is evidence that Oneida was competent on the day in question.

Willis averred that Oneida came to his law firm on January 5, 1995, and asked him to prepare the quitclaim deed. Willis further averred that:

[W]e met in the conference room and had a rather lengthy discussion regarding the transfer of this property. Mrs. McGuffey specifically stated that she wished to convey the property ... to her husband, Mr. Johnny William McGuffey and I prepared the . . . deed at her request. No one accompanied Mrs. McGuffey in the room except my law partner, Mr. Mixon who was a witness and myself, and there was no coercion by anyone to have Mrs. McGuffey sign the deed. It has always been my policy to question a person conveying property or making a will to ascertain whether or not they are competent to so do, and on this particular occasion I made certain that Mrs. McGuffey knew exactly what she was doing. In this situation, I followed this policy and determined that Mrs. McGuffey was competent and knew exactly what she was doing in transferring this real estate. Mrs. McGuffey knew and understood the consequences of signing the deed and it was her specific intent to transfer the real estate to her husband. . . . If I had not been certain of Mrs. McGuffey’s mental competency and of the fact that she realized and understood what she was doing in transferring the real estate to her husband, I would not have prepared the deed for her execution.

Doster offered no evidence to dispute any of Willis’s assertions.

Doster is correct that a court may consider evidence from before and after the day in question to determine mental competency. However, our Supreme Court held in Thomas v. Garrett, that the “appellant [still has] the burden of showing that [her mother] was non compos mentis, that is entirely without understanding at the time the deed was executed.” Further, “weakness of mind not amounting to imbecility is not sufficient mental incapacity to justify setting a deed aside.” In Thomas, the appellant sought to cancel a deed she executed. She presented opinion evidence that her recent surgery, coupled with her continuing medication, detrimentally affected her mental capacity at the time she executed the deed. More importantly, however, as in the instant case, the actual witnesses to Thomas’s execution of the deed testified that they had no doubt as to her mental capacity. Also, Thomas’s physician found no indication of mental incapacity when he examined her the day after the closing. Thus, there was evidence of sufficient mental capacity to execute the deed and the trial court’s grant of a directed verdict on the issue was upheld.

In Armour v. Peek, which, like the case sub judice, involves an appeal from the grant of summary judgment in an action to set aside a deed, our Supreme Court held that “[t]he law presumes every man to be sane until there is evidence to the contrary, and the burden is on the party attacking a contract to show the incompetency of the signer at the time of the execution thereof.” In Armour, the Court found that evidence that the maker of the deed was sometimes forgetful and failed to recognize relatives did not establish the fact of his mental incapacity at the time the deed was executed.

In this case, the evidence offered by Doster did not show that Oneida failed to understand the deed when she executed it. Dr. Morris, who treated Oneida two days before she executed the deed, did not depose that she was mentally incompetent to execute the deed. Instead, when asked if he had knowledge about Oneida’s understanding of the deed when she signed it, he replied that he did not. Dr. McBee deposed that patients suffering from dementia have moments of lucidity and clarity. Dr. Mohan recalled that Oneida told him that she gave her husband the property because she loved him. Accordingly, since Doster did not satisfy her burden to show that her mother was entirely without understanding when she executed the deed, we must affirm the trial court’s grant of summary judgment to Bates.

2. Doster mentions in her appellate brief that the trial court erred by failing to set aside the transfer of the titles to two vehicles but does not support this alleged error with citation of authority or argument. We therefore deem this error abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

Decided June 19, 2002

Reconsideration denied July 17, 2002.

James D. Crowe, for appellant.

Benton, Preston & Malcom, Eugene M. Benton, Robert M. Malcom, for appellee.

        Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       Id.

       While the matter was pending, Oneida died and Doster was named as the administratrix of Oneida’s estate.

       This was Bates’s second motion for summary judgment. Her first motion for summary judgment, arguing that Doster’s claims were barred by judicial and collateral estoppel, was denied.

       In her brief, Doster lists two errors, but the second is not an error. It simply states that this Court has jurisdiction over her case.

       There is no evidence in the record as to this neurologist’s findings.

       (Citations omitted.) Warren v. Warren, 221 Ga. 227, 229 (2) (144 SE2d 115) (1965).

       260 Ga. 853 (400 SE2d 317) (1991).

       268 Ga. 846 (492 SE2d 872) (1997).

         265 Ga. 525 (457 SE2d 714) (1995).

       219 Ga. 592 (134 SE2d 811) (1964).

        Kievman, supra at 853 (1).

        Horton, supra at 846-847 (1).

        Kesler, supra at 594 (3).

       265 Ga. 395 (456 SE2d 573) (1995).

       (Citations and punctuation omitted; emphasis supplied.) Id. at 398 (3).

       (Citations and punctuation omitted.) Id.

       See also Gornto v. Gornto, 217 Ga. 136 (121 SE2d 139) (1961) (testator was mentally competent to execute a will where there was testimonial evidence from the subscribing witnesses to the testator’s will that he was competent and from his physician that he was capable of making decisions as to his personal affairs even though he may have been under the influence of medication).

       271 Ga. 202 (517 SE2d 527) (1999).

       Id. at 203 (2).

        Rose v. Barbee, 236 Ga. App. 176 (2) (511 SE2d 268) (1999).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A1276.
    OSMENT v. THE STATE.
    (569 SE2d 262)
   Mikell, Judge.

A jury found James Edward Osment guilty of possession of marijuana with intent to distribute. Osment appeals. Osment contends that the trial court erred in denying his motion to suppress evidence because he was seized and detained without probable cause; that his detention exceeded the scope allowed by Terry v. Ohio; and that because of the unlawful detention, the subsequent search of his bag was also unlawful. For the reasons set forth below, we disagree and affirm.

A trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it. The evidence presented in the instant case shows that while working at the North Georgia State Fair, Captain John Koehler of the Cobb County Sheriff’s Office received a radio dispatch to be on the lookout for a man selling drugs. The dispatch described the man as in his fifties, wearing blue jean shorts and a light colored shirt with dark colored sleeves, and carrying a blue bag with maroon straps. A deputy spotted an individual who matched the description, but lost sight of him among a group of trailers used to house the carnival workers. The deputy notified Captain Koehler, who went to the area to investigate. Koehler found two trailers, and when he knocked on the second trailer and identified himself as a law enforcement officer, he could feel the trailer shake as people ran around inside. An agitated Osment suddenly bolted out the door, came very close to the officer’s person, and told Koehler that he was hassling him, and that he had done nothing wrong. Osment had two very large bulges in his blue jean pants pockets. Koehler was concerned for his safety, and so he asked two other deputies to pat Osment down. Deputies found several rolls of money, keys, a lighter, along with an empty pack of cigarettes and rolling papers in Osment’s pants pockets.

While the deputies searched Osment, Koehler spoke to the second person in the trailer, Robert Wallace, who invited the officer inside. Koehler asked Wallace if the police could search the trailer, and Wallace consented, but told Koehler that, although he was staying at the trailer, he was not the owner. During this conversation, another detective saw a marijuana cigarette in the kitchen sink, which was in plain view from the entrance of the small trailer.

The detectives contacted the owner of the trailer, Billy Morris, who consented to a search. The search revealed a blue bag under the bunk bed. Inside the blue bag were six smaller bags containing marijuana, a set of postal scales, and a master lock key engraved with the number 3122. Osment denied that he owned the bag, but a master key with the number 3122 was found in his pockets. Deputies found four more small bags containing marijuana under the mattress of the top bunk. The marijuana weighed 1.7 ounces.

Osment argues that, under Terry and Alabama v. White, in order for an anonymous tip to provide a basis for the police to make an investigatory stop, the tip must provide a basis for predicting the future behavior of the suspect. But Osment was not detained on the basis of an anonymous tip alone. The initial contact between Captain Koehler and Osment was made after Koehler knocked on the trailer door, which he was entitled to do without violating Osment’s Fourth Amendment rights. Although Koehler asked officers to detain Osment for a pat-down, that seizure did not lead to the discovery of the blue bag and the associated marijuana, which was the subject of the motion to suppress. Rather, the search of the trailer was initiated after Wallace invited the police inside, at which point an officer saw a marijuana cigarette in plain view. “[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point.” Once the contraband was seized, the police were entitled to detain Osment because they had probable cause to believe he had committed a crime.

Both Wallace, the occupant of the trailer, and the trailer’s owner consented to a search. “Generally, a search based on voluntary consent eliminates the need for a search warrant or probable cause.” Osment contends, however, that the police, having found the blue bag under the bed, could not search the bag without Osment’s consent or probable cause without violating his Fourth Amendment rights. At the time the police found and searched the bag, Osment argues, he had not been shown to have voluntarily discarded or abandoned the property. “Personal belongings brought by their owner on a visit to a friend’s house retain their constitutional protection until their owner meaningfully abdicates control or responsibility.” The facts here distinguish State v. Corley and Browning, on which Osment relies. In Corley, the police seized and searched a bag belonging to a passenger in a pickup truck. The bag was in the front seat, and “not found in any area normally used by the vehicle owner for storage.” In Browning, the police seized and searched the purse of an apartment visitor. The purse was found on the floor, and the defendant identified it as hers when the police showed it to her. Here, however, when police asked Osment if he had been carrying a bag, Osment denied it. Osment also denied ownership of the bag after it was found. Police searched the trailer with permission of the owner and the occupant and found the bag stored under a bed, which is not where a casual visitor is likely to leave his belongings. Osment argues that because the owner of the trailer denied that he owned the bag, and police were searching for Osment because he had been seen carrying a bag, all the officers present must have known that it belonged to Osment. Nevertheless, given that Osment told police he was not carrying a bag, that it was not his bag, and the bag was found stored under a bed in someone else’s trailer, the trial court could conclude that Osment had no reasonable expectation of privacy in its contents. It follows that the trial court did not err in denying Osment’s motion to suppress.

Decided July 17, 2002.

John R. Greco, for appellant.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

Patrick H. Head, District Attorney, Andrew J. Saliba, Amy H. McChesney, Assistant District Attorneys, for appellee.

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Hobdy v. State, 222 Ga. App. 625 (475 SE2d 686) (1996).

       The officer testifying at the hearing on the motion to suppress is sometimes identified as “Culver” in the transcript of that proceeding, but it appears from the trial transcript, and is noted by the state in its brief, that the officer’s name is Koehler.

       496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990).

       See Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650) (1981).

       (Citations omitted.) State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). See also Rowe v. State, 184 Ga. App. 437 (1) (361 SE2d 705) (1987).

        State v. Webb, 193 Ga. App. 2, 4 (2) (386 SE2d 891) (1989).

        Buckholts v. State, 247 Ga. App. 697, 699 (2) (545 SE2d 99) (2001).

        State v. Browning, 209 Ga. App. 197, 198 (1) (433 SE2d 119) (1993).

       201 Ga. App. 320 (411 SE2d 324) (1991).

       Id. at 322.

        Browning, 209 Ga. App. at 197 (1).

       See also Minnesota v. Carter, 525 U. S. 83, 90 (119 SC 469, 142 LE2d 373) (1998) (“an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not”).


text:
    A02A1155.
    MOTON v. THE STATE.
    (569 SE2d 264)
   Mikell, Judge.

A DeKalb County jury found Raymond Moton guilty of theft by receiving stolen property and possession of tools for the commission of a crime. He claims on appeal that the evidence was insufficient to prove his guilt beyond a reasonable doubt. He also claims that, because a member of his jury was not a United States citizen, the trial court erred in denying his motion for a new trial. We affirm for the reasons set forth below.

1. On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the record shows that Amy Seibert parked her father’s GMC truck outside a condominium. When she returned 30 minutes later, the truck was gone. She called police and reported the truck stolen. Around 3:00 a.m., police officer Jerry King saw two vehicles, a car and a truck, back out of the Briarcrest Town Homes parking lot without their lights on. The vehicles passed the officer’s patrol car, and King was able to observe the drivers. The officer followed the vehicles and decided to continue following the truck when it pulled into an apartment complex parking lot. As Officer King approached the truck, he discovered that it was empty, with the driver’s side door open, and he heard someone running away. The truck’s steering column was damaged. Police subsequently confirmed that the truck was the GMC truck previously reported stolen by Seibert.

Officer King called for backup and gave the other officers a description of the driver. After policemen found Moton nearby and detained him, they brought him to King, who confirmed that Moton was the person he had seen driving the truck. Police searched Moton and found a screwdriver, a pair of gloves, and a bottle of cologne. The bottle matched the description of one which had been in the stolen truck, according to Seibert.

We conclude that the evidence recounted above was sufficient for a rational trier of fact to find Moton guilty beyond a reasonable doubt of theft by receiving stolen property and possession of tools for the commission of a crime.

2. Moton also claims that the trial court erred in denying his motion for a new trial because a member of the jury, Susan Tomlin-son, was not a United States citizen. This was discovered by the parties only when an acquaintance of Tomlinson’s estranged husband told the district attorney’s office after the trial.

Moton claims that a new trial was required because his jury did not comply with OCGA § 15-12-40.1, which provides that “no person shall be qualified to serve as a juror under this article unless that person is a citizen of the United States.” But a challenge propter defectum must be discovered and made before trial. “A juror incompetent propter defectum is made specially competent by the act of the parties in allowing him to serve without challenge, and a verdict will not be set aside for such cause.” Moton cannot show that he asked Tomlinson about her citizenship during voir dire, or that he objected to her serving on the jury. In these circumstances, Moton is not entitled to a new trial because a juror did not qualify under OCGA § 15-12-40.1.

Moton also argues that he is entitled to a new trial because Tomlinson failed to respond correctly to a question about her citizenship on her juror questionnaire. “In order for a defendant to secure a new trial because a juror did not give a correct response to a question posed on voir dire (or, as here, a juror questionnaire), the defendant must show that the juror failed to answer the question truthfully and that a correct response would have been a valid basis for a challenge for cause.” Moton presented no evidence that his trial counsel asked Tomlinson about her citizenship during voir dire, which was not transcribed. He did show, through the testimony of the jury coordinator, that jurors were asked to fill out a questionnaire, which included a question about the prospective juror’s citizenship. Moton also showed that, as a matter of routine, a court clerk would ask prospective jurors as a group, “Is anyone not a U. S. Citizen?” However, Tomlinson’s questionnaire could not be produced because the questionnaires were periodically destroyed; Tomlinson does not recall answering a question about her citizenship; and Moton could not produce any witness that could confirm that Tomlinson’s group of jurors were actually asked about their citizenship. Based on the evidence presented at the hearing on motion for a new trial, the ccurt concluded that Moton had not shown that Tomlinson failed to answer truthfully a question about her citizenship. We find no basis to overturn the trial court’s findings.

Decided July 18, 2002.

Laila A. Washington, for appellant.

J Tom Morgan, District Attorney, Jeanne M. Canavan, Andrette Watson, Assistant District Attorneys, for appellee.

Moton’s final argument is that Tomlinson’s participation on his jury panel violated his right to be tried by a jury of his peers. He argues that jury service demands loyalty to this country, and that aliens are less likely to be qualified than citizens from the standpoint of familiarity with local laws, custom, and language so as to understand the motives and actions of the litigants. Moton has drawn from arguments made by a number of courts in refuting defendants’ claims that a jury pool excluding resident aliens denied their right to a jury of their peers. But even if aliens can be excluded from a jury, it does not necessarily follow that an alien’s participation on a jury deprives a defendant of due process. Tomlinson testified in Moton’s hearing on motion for a new trial that, although she was from Jamaica, English was her primary language, she understood what was happening at the trial, and she applied the law as instructed by the trial court. Thus, Moton cannot show that Tomlinson’s participation on his jury deprived him of any of his constitutional rights.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Manous v. State, 205 Ga. App. 804-805 (1) (423 SE2d 721) (1992).

       Black’s Law Dictionary (7th ed. 1999), p. 223, defines “challenge propter defectum” as “[a] challenge based on a claim that the juror is incompetent to serve on any jury for reasons such as alienage, infancy, or non-residency.”

       See Henderson v. Fox, 83 Ga. 233, 245 (9 SE 839) (1889).

       (Citations and punctuation omitted.) Vaughn v. State, 173 Ga. App. 716, 718 (4) (327 SE2d 747) (1985).

       (Citations omitted.) Sears v. State, 270 Ga. 834, 840 (2) (514 SE2d 426) (1999).

       See Strauder v. West Virginia, 100 U. S. 303, 308 (25 LE 664) (1879).

       See United States v. Gordon-Nikkar, 518 F2d 972, 976-977 (5th Cir. 1975); State v. Thigpen, 35 Conn. Supp. 98, 99-100 (397 A2d 912) (1978).


author: Andrews, Presiding Judge.

text:
    A02A1638.
    PONDER v. BROOKS et al.
    (569 SE2d 267)
   Andrews, Presiding Judge.

Eddie Ponder appeals from the trial court’s order granting summary judgment to William Brooks, M.D., and South Macon Family Physician’s Clinic (the clinic) on Ponder’s slip and fall claim. Because Ponder had equal knowledge of the alleged hazard, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The record shows that on the day of the accident, Ponder went to the clinic to pay a medical bill for his wife. Ponder had a prosthesis on his right leg and walked with a cane. Ponder stated at his deposition that as he was walking up to pay the bill, some people were coming out of one of the doors into the waiting room and he stepped aside to let them pass. As he did so, he hit a magazine table with his artificial leg and fell.

Ponder acknowledged that he had been going to the clinic for years, both for his own appointments and with his wife, and said he knew the table was there. There was evidence, which Ponder does not dispute, that the table had been in the same place in the waiting room for at least 15 years.

Defendants submitted the affidavit of Dr. Brooks and pictures of the waiting room which show that the distance from the table to the nearest wall is five feet seven inches and the distance from the table to the door through which Ponder said the people were exiting was eight feet five inches. There is also undisputed evidence that there had never been a previous fall in the waiting room or any complaints about the placement of the furniture. Further, the pictures show that the table was clearly visible and was not blocking any ingress or egress. Brooks stated that the table had never occasioned any comment from the fire marshal or any other inspector.

The trial court granted summary judgment to Brooks and the clinic, holding that the magazine table was a static condition and Ponder could not recover because he knew of the condition and therefore defendants were under no duty to warn and were not liable for any resulting injury. This appeal followed.

In order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. The fundamental basis for an owner or occupier’s liability is that party’s superior knowledge of the hazard encountered by the plaintiff. If an invitee knows of the condition or hazard, [he] has as much knowledge as the proprietor does and then by voluntarily acting in view of [his] knowledge], he] assumes the risks and dangers incident to the known condition. In everyday life, persons are required to negotiate . . . floors, steps and doorways.

(Punctuation and footnotes omitted.) Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 485 (1) (541 SE2d 109) (2000).

Ponder argues on appeal that even though he was aware of the hazard, he was distracted by the people coming out of the door into the waiting room. But, “the distraction doctrine does not apply where the plaintiff had actual knowledge of the hazard before the alleged distraction occurred.” Yasinsac, supra at 486 (2); Means v. Marshalls of MA, 243 Ga. App. 419, 421 (532 SE2d 740) (2000).

In Yasinsac, supra, the plaintiff stepped onto a six-inch-high landing to pay the gas station attendant for her gas. The attendant took her card and asked her to step aside while he waited on the next customer. When the plaintiff stepped to the side, she fell off the landing. This Court rejected Yasinsac’s argument that defendant was not entitled to summary judgment because she was distracted when the attendant told her to step aside. Id. at 486. See also Hindmon v. Virgil’s Food Mart, 252 Ga. App. 732 (556 SE2d 135) (2001) (Hindmon’s knowledge of the rug and testimony that she was trying to avoid it when she caught her heel in it precluded recovery); Gresham v. Bell’s Food Market, 244 Ga. App. 240 (534 SE2d 537) (2000) (shopper saw grocery carts on front walkway and was therefore precluded from recovery after her foot became entangled on the bottom part of the cart, causing her to fall); Hannah v. Hampton Auto Parts, 234 Ga. App. 392 (506 SE2d 910) (1998) (because plaintiff had negotiated steps many times in the past, he was presumed to have knowledge of any dangerous condition and could not recover for any subsequent injury). In light of this well-settled case law, we conclude that the trial court did not err in granting summary judgment based on the equal knowledge rule.

Ponder also argues that the table blocks entrances and exits in violation of the building codes. There is no support for this claim in the record, and indeed, the pictures clearly show that the table did not block or impede any exits or entrances to the waiting room. Moreover, even if the magazine table’s position could be found to be negligence per se as a violation of the building code, Ponder would be precluded from recovering because of the equal knowledge rule. Yasinsac, supra at 486; Sullivan v. Quisc, Inc., 207 Ga. App. 114, 116 (427 SE2d 86) (1993).

Decided July 18, 2002.

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Jones, Cork & Miller, Thomas C. Alexander, Christopher B. Jarrard, for appellees.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0306.
    SPENCER v. GARY HOWARD ENTERPRISES, INC.
    (568 SE2d 763)
   Mikell, Judge.

George Strickland, an employee of Gary Howard Enterprises, Inc., ran a stop sign while driving a truck owned by Howard Enterprises. The truck collided with Robert Spencer’s motorcycle, injuring Spencer. Spencer sued Howard Enterprises on theories of respondeat superior, negligent hiring, and negligent entrustment, claiming that Strickland was acting within the scope of his employment and that his alcohol-impaired driving was a proximate cause of the collision. The trial court granted summary judgment to Howard Enterprises, and Spencer appeals.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

So viewed, the record shows that Howard Enterprises first hired Strickland in 1991 or 1992 as a part-time laborer; he left in 1992 after performing satisfactorily. Howard Enterprises rehired Strickland in 1996. At that time Strickland told Gary Howard, the principal of Howard Enterprises, that he did not have a driver’s license because of a DUI “approximately 10 years earlier.” Strickland attended a driver’s education course and regained his license. Howard Enterprises then provided Strickland with a truck for the purpose of picking up materials, and for taking Strickland and his co-workers to and from work. Howard had no knowledge that Strickland drank on the job and was not told by anyone that Strickland had a drinking problem.

On May 28, 1997, Strickland worked from 7:00 a.m. to 4:00 p.m. and then left in the truck to take his co-workers home. About 7:30 or 8:00 p.m. that evening, Howard received a telephone call from Strickland’s girlfriend, who told him that she had seen Strickland driving the truck around 6:00 p.m., and that she believed Strickland was drinking while driving. Howard called the sheriff’s department, and the dispatcher agreed to put out an all-points bulletin on the truck. The dispatcher called back to inform Howard that Strickland had been in an accident in Howard’s truck. The collision between Strickland and Spencer occurred around 9:30 p.m. that evening.

The only affidavit introduced by Spencer was that of his mother, who affirmed that when she went to the hospital after her son’s accident, “[she] heard George Strickland’s sister telling Teresa Hall that she had warned Gary Howard to not allow George Strickland to drive the company truck because of his drinking habits because she believed that someone would end up getting hurt.”

The trial court granted summary judgment to Howard Enterprises because (1) Howard Enterprises rebutted the presumption that Strickland was operating the truck in the scope of his employment, and Spencer failed to show other facts sufficient to raise a genuine issue of material fact on his claim of respondeat superior; (2) Strickland’s claim of negligent hiring was not applicable as the alleged tortious conduct occurred outside the scope of employment; and (3) Strickland’s claim of negligent entrustment failed because he could not show that Howard Enterprises had actual knowledge that Strickland was an incompetent driver or habitually reckless. We agree with the reasoning of the trial court and affirm.

1. An employer is liable for its employees’ torts committed “in the prosecution and within the scope of the employer’s business.” When an employee is involved in a collision while operating his employer’s vehicle, a presumption arises that the employee was acting in the scope of his employment. The employer can rebut this presumption by clear, positive, and uncontradicted evidence. Howard Enterprises rebutted the presumption through Howard’s affidavit, which showed that at the time of the collision Strickland was operating the truck without permission and was not performing any duty in furtherance of his employment.

Spencer claims that Strickland could have been driving home at the time of the accident, raising a question of fact as to whether the collision occurred while Strickland was still within the scope of his employment. But Strickland’s workday ended at 4:00 p.m., and the collision occurred around 9:30 p.m. that evening. No reasonable inference can be drawn from the record that shows Strickland was still using the truck in furtherance of his employment.

2. Spencer also argues that Howard Enterprises was negligent in hiring Strickland. The rule is that a claim based on negligent hiring cannot be maintained where the employee’s tortious act was committed outside the scope of employment and on the public in general. Accordingly, as Strickland was not acting within the scope of his employment, and Strickland had no work-related connection to Spencer, the trial court correctly granted summary judgment to Howard Enterprises on Spencer’s claim for negligent hiring.

3. Spencer’s other enumerations of error are based on the theory of negligent entrustment. “Liability for negligent entrustment is predicated upon a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless.” An employer’s knowledge of a series of serious driving infractions by an employee can be sufficient to create an issue of fact on the issue of negligent entrustment. Spencer points to evidence that Howard had actual knowledge that Strickland had been convicted of a DUI and that he did not have a driver’s license when he was rehired and argues that this evidence is in and of itself sufficient to establish an issue of material fact. But it also appears that Howard had actual knowledge of only one DUI, which Strickland told him happened ten years earlier, and that Strickland took driver’s education courses and regained his driver’s license before he was entrusted with the use of the company truck. Although a DUI does show recklessness in drinking while driving, “the conduct of the driver must show a pattern of continued recklessness known to the owner.” We have previously found an owner’s knowledge of a single instance of reckless driving was not sufficient to establish actual knowledge of habitual recklessness. Here, knowledge of a pattern of recklessness would reasonably require knowledge of more than a ten-year-old DUI.

Decided July 1, 2002

Reconsideration denied July 19, 2002

Alexander J. Repasky, Gerald W. Abendroth, for appellant.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, William E. Holland, Douglas C. Rogers, for appellee.

Spencer further argues that Howard’s actual knowledge of Strickland’s DUI, paired with Strickland’s lack of a driver’s license at the time of hiring, should have put Howard on notice that further investigation was necessary before giving Strickland use of the truck, and that this investigation would have shown additional incidents of Strickland’s drinking while driving. We have declined to impose a duty of investigation on those subject to a claim of negligent entrustment, even in the context of the employer/employee relationship. “The entrustor is not liable merely because he or she, by the exercise of reasonable care and diligence, could have ascertained the fact of the incompetency of the driver.”

Finally, Spencer argues that he has presented evidence that Howard knew of Strickland’s dangerous driving habits because Strickland’s sister warned Howard about letting him use the company truck. The affidavit from Spencer’s mother shows that she did not overhear the alleged conversation, but overheard Strickland’s sister telling a third party that the conversation had occurred. This is inadmissible hearsay and is not competent evidence of the alleged conversation for purposes of summary judgment.

We conclude that Spencer cannot show evidence sufficient to create an issue of material fact on any of his theories of recovery and affirm the order of the trial court granting summary judgment to Howard Enterprises.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.

        Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

        Crane Bros., Inc. v. May, 252 Ga. App. 690, 691 (556 SE2d 865) (2001).

        Watkins v. Jackson, 215 Ga. App. 380, 381 (451 SE2d 111) (1994).

        Collins v. Everidge, 161 Ga. App. 708 (1) (289 SE2d 804) (1982).

       See Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979).

       See Dester v. Dester, 240 Ga. App. 711, 715 (7) (523 SE2d 635) (1999); Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27, 28 (360 SE2d 619) (1987).

       See Dester, supra.

       (Punctuation omitted.) Trent v. Franco, 253 Ga. App. 104, 109 (2) (558 SE2d 66) (2001).

        Ed Sherwood Chevrolet v. McAuley, 164 Ga. App. 798, 799-802 (1) (298 SE2d 565) (1982).

       (Emphasis omitted.) Saunders v. Vikers, 116 Ga. App. 733, 736 (7) (158 SE2d 324) (1967).

       Id.

       See, e.g., Security Life Ins. Co. &c. v. Clark, 273 Ga. 44, 47 (2) (535 SE2d 234) (2000) (a “pattern” requires at least two incidents).

        Gill Plumbing Co. v. Macon, 187 Ga. App. 481, 484 (2) (370 SE2d 657) (1988).

       (Punctuation omitted.) Carolina Cable Contractors v. Hattaway, 226 Ga. App. 413, 415 (487 SE2d 53) (1997) (physical precedent only).

        Hassell v. First Nat. Bank &c., 218 Ga. App. 231, 234 (2) (461 SE2d 245) (1995).


author: Ruffin, Judge.

text:
    A02A0652.
    BROWN v. THE STATE.
    (568 SE2d 727)
   Ruffin, Judge.

A jury found former Liberty County Tax Commissioner Carolyn R. Brown guilty of four counts of theft by converting tax revenues and one count of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act. She appeals, asserting that she was denied effective assistance of counsel. Brown also contends that the trial court erred in admitting certain evidence, restricting her closing argument, and charging the jury. For reasons that follow, we affirm.

The record shows that Brown began serving as the tax commissioner on January 1, 1993. As compensation for her services, Brown received a salary and commissions that were based on the sale of automobile tags in Liberty County and the amount of ad valorem taxes collected by the county. In 1995, following this Court’s opinion in Weldon v. Bd. of Commrs. &c.f the county attorney learned that Brown was not entitled to the commissions and informed her of this fact. Despite the notice, Brown continued collecting the commissions, contending that they were authorized by local legislation. Eventually, Brown sought a declaratory judgment that she was entitled to the commissions, but both the trial court and the Supreme Court of Georgia ruled against her. In 2000, a grand jury indicted Brown for theft by converting the tax revenues she took as commissions between 1995 and 1999. The grand jury also indicted Brown for a RICO violation based on the predicate acts of theft by conversion. Following trial, a jury found Brown guilty of these offenses, and this appeal ensued.

1. Brown’s contention that she was denied effective assistance of counsel stems primarily from her dismissal of retained counsel. The record shows that, on September 20, 2000, approximately five weeks after she was indicted, Brown retained two attorneys to represent her. On February 28, 2001, the trial court granted Brown’s motion for a change of venue, and the case was specially set for trial in DeKalb County beginning April 23, 2001. During the first two days of trial, the parties selected a jury, presented opening statements, and examined three State’s witnesses.

On the morning of the third day, Brown announced that she wanted to dismiss her attorneys because they had recommended that she accept a plea offered by the State. The trial judge asked Brown whether she would be representing herself, and Brown responded, “yes[ ] sir, for today, . . . because you have not allowed me a chance to get legal counsel and until I can get legal counsel, I will have to sit here and represent myself.” Brown explained,

I believe without a doubt that [existing counsel are] fighting for my rights. We have a difference of opinion. Mine is faith-based, sir, and I know they’re practical and analytical. . . . I’ve refused to take a plea, which is what they thought was the best thing to do, but I know that I have not done anything wrong so I’ve got to go with that.

Following her announcement, the trial court spent considerable time warning Brown of the dangers of her decision and ensuring that she appreciated the possible consequences. The court ultimately granted Brown’s request to relieve counsel, and the trial proceeded with the State’s presentation of its witnesses.

After the lunch recess, Brown informed the court that she had found substitute counsel. The trial court, however, granted the State’s motion to disqualify the law firm she selected because one of the firm’s associates had formerly worked on the team of the Liberty County District Attorney’s Office that was prosecuting Brown’s case. Brown, who is represented by different counsel on appeal, now asserts that the trial court erred in: (a) allowing her original retained counsel to “withdraw after trial had begun”; (b) disqualifying substitute counsel; and (c) failing to grant a new trial based on the ineffective assistance of retained counsel. We disagree.

(a) In addressing the first assertion, we reject Brown’s suggestion that counsel elected to withdraw from the case. The evidence clearly shows that Brown’s attorneys were ready to proceed, but were dismissed by Brown. Under these circumstances, we must determine whether Brown intelligently waived her right to counsel. To determine whether a defendant validly waives her right to counsel,

a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. Finally, when the defendant pleads not guilty and proceeds to trial without benefit of counsel, the State must show the decision to proceed pro se was made knowingly and intelligently.

In this case, after Brown informed the court that she had decided to dismiss her attorneys, the judge explained to her that they were well qualified, had spent considerable time preparing to defend her, and were ready to proceed on her behalf. The court informed Brown that if she dismissed counsel, she would have no assistance during the trial and would seriously jeopardize her rights. The trial judge further warned Brown that, because she had announced ready for trial, a jury had been selected, and the trial had commenced, the court would not grant any continuances for her to procure substitute counsel. The trial court then ascertained that Brown was making the decision freely and voluntarily and that she understood the seriousness of the case and the potential sentence if convicted. The court also informed Brown that she was presumed innocent and that the jury would never learn of the plea offer. Brown nonetheless insisted that she “still wish[ed] to proceed on [her] own without the assistance of counsel,” and the court granted her request.

Like the trial court, we are troubled that Brown elected to dismiss retained counsel and proceed pro se. Under the circumstances, however, we find she made the decision knowingly and intelligently. Having successfully served as the county tax commissioner for several years and having litigated her claim to the commissions in Georgia’s trial and appellate courts, Brown clearly had a grasp of both the legal process and the nature of the charges against her when she elected to proceed pro se. The trial court went to great lengths to ensure that she understood her rights, the seriousness of the charges, the perils of proceeding pro se, and that her existing retained counsel — who spent approximately seven months preparing for trial — were ready to continue defending her. Although we question why Brown insisted on immediately dismissing her attorneys, the decision was hers to make, and she made it with a full understanding of the consequences.

A defendant cannot play her right to counsel against her right to waive counsel “with the hope of creating error. Neither may a defendant who has knowingly waived counsel then complain of a lack of counsel when [she] determines that the judge’s warnings were valid. Under such circumstances, the defendant’s problems are of [her] own making, and [she] is bound by [her] poor choices.” We find no error in the trial court’s decision to grant Brown’s request to dismiss counsel.

In the same enumeration of error, Brown also suggests that the trial court should have granted a continuance for her to find new counsel. “The grant or denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed unless it clearly appears the trial court abused that discretion.”

The trial court did not abuse its discretion in this case. The trial court found that Brown’s decision to dismiss counsel was motivated by her desire to delay the proceedings and create a mistrial. We cannot conclude that the trial court abused its discretion. As stated above, Brown could not pit her right to counsel against her waiver as a means to create error. Likewise, Brown was not permitted to use her request for a continuance as a delaying tactic.

In the middle of trial, Brown fired the two attorneys she chose to represent her based solely on their recommendation that she accept the State’s plea offer. She acknowledged that her attorneys were “wonderful” and that they were, “without a doubt [,] . . . fighting for [her] rights.” The court warned Brown that it would not grant a continuance. Considering these circumstances, along with the timing of her request to dismiss counsel, and the specious reason she gave for doing so — pursuing a “faith-based” versus a “practical and analytical” strategy — Brown bears sole responsibility for her lack of counsel. Furthermore, in light of the fact that Brown never established that she could have hired qualified substitute counsel even with a continuance, the trial court did not abuse its discretion.

(b) We also disagree with Brown that the trial court erred in disqualifying her proposed substitute counsel. In addressing this assertion, “we . . . look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel” and the public’s confidence in the integrity of the judicial system.

As a general rule, “[a]fter a lawyer leaves . . . public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.” The mere fact that the attorney was formerly employed in the same public office that handled the matter, however, does not mean that he had substantial responsibility.

Substantial responsibility envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. . . . Yet it is not necessary that the public employee or official shall have personally or in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter.

A trial court’s decision to disqualify counsel based on his former employment in public office is reviewed for an abuse of discretion.

In this case, it is undisputed that Cheryl Johnson, an associate with the law firm of proposed substitute counsel, formerly worked with the Liberty County District Attorney’s Office while Brown’s case was pending. The attorneys prosecuting the case at trial informed the court that Johnson had, “in fact[,] worked on this very case” and had been involved in discussions about the case. Johnson acknowledged that she had overheard employees in the child support division talking about the case and was in the courtroom when the indictment was read and during Brown’s arraignment, but denied any further knowledge of the case.

While a trial court should approach the decision to disqualify counsel with great caution, the record in this case supports the court’s decision that Brown’s right to her chosen substitute counsel was precluded by Johnson’s former employment with the district attorney’s office. Although disputed by Johnson, both prosecuting attorneys indicated that she substantially participated in Brown’s prosecution before going to work for the firm of Brown’s proposed substitute counsel. Under such circumstances, Johnson’s new law firm could not defend Brown, “since to accept employment would give the appearance of impropriety even if none exists.” Thus, notwithstanding Johnson’s actual knowledge of the case, in order to preserve and avoid even the appearance of impropriety, the trial court acted within its discretion in granting the State’s motion.

(c) Brown also asserts that she is entitled to a new trial because, before she dismissed retained counsel, they provided her with ineffective assistance. For Brown to prevail on this claim, she “must show that counsel’s performance was deficient and that this deficient performance prejudiced . . . her defense.” Because Brown has not made the requisite showings, we find no error.

Brown first claims that counsel were ineffective because they did not move to dismiss two counts of the indictment based upon the expiration of the statute of limitation. But in her appellate brief, Brown merely claims that limitation period had lapsed without any relevant reference to the record, argument, or citation of authority. “In the absence of proper argument, citation to the record, or citation to authority, we will not consider this [assertion].”

Brown next argues that counsel were ineffective because they did not move to dismiss the indictment based on an unqualified grand juror. Brown relies on affidavits of two individuals who stated that they served on the grand jury. Both individuals claim that a person named Reggie Sage participated in the grand jury proceedings, that he continuously stated that Brown had taken money, and that he supported his statements by showing them numerous documents. According to the affidavits, Sage was introduced as a “special committee member” and a “special advisor” who had also appeared before the previous grand jury. Citing OCGA § 15-12-4 (a), Brown now argues that Sage should have been disqualified from participating “in the Grand Jury proceedings in that he was disqualified due to his status as an immediate prior member of the preceding Grand Jury.” She maintains that counsel were ineffective in failing to move for dismissal on this ground. We disagree.

The record shows that Brown did not retain counsel until approximately five weeks after she was indicted, and there is absolutely no indication in the record that counsel had any knowledge of the alleged ineligibility of Sage to participate in the proceedings. Furthermore, because trial counsel did not testify at the new trial hearing, there is no evidence regarding their knowledge of the matter, or reasons, if any, for failing to address the issue.

A strong presumption exists that counsel’s conduct fell within the wide range of reasonable professional assistance. And where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption. Furthermore, we have held that in the absence of testimony to the contrary, counsel’s actions are presumed strategic.

Under the circumstances here, Brown has not met her burden of showing that counsel’s performance was deficient, and we presume that they provided her with reasonably professional assistance.

Finally, Brown asserts that trial counsel were ineffective because they allowed “a key witness for the Defense ... to be released from his subpoena before the start of trial.” Again, however, absent any testimony to the contrary, we will presume this decision was strategic. Because Brown has “made no affirmative showing that the purported deficiencies in [her] trial counsel [s’] representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy,” we find no error in the trial court’s ruling.

2. Brown next asserts that the trial court erred in admitting into evidence a copy of her deposition from her civil case and in allowing the jury to take the deposition and certain charts and graphs into the jury room during deliberations. According to Brown, allowing these documents to go out with the jury violated the “continuing witness” rule. We find no error.

Brown has not shown that she raised these objections at trial. Instead, she asserts that her failure to object shows that she had a “desperate need for an attorney and demonstrates her lack of counsel resulting in an unfair trial.” We have already concluded, however, that Brown’s waiver of counsel was knowing, intelligent, and valid. Thus, she cannot now rely on the lack of counsel to excuse her own failure to object at trial. “[Brown] is not held to a different or more lenient standard in this regard merely because [she] elected to proceed pro se. One who knowingly elects to represent [herself] assumes full responsibility for complying with the substantive and procedural requirements of the law.” Having failed to object at trial, the issues are not preserved for appeal.

Furthermore, contrary to Brown’s arguments, testimony from civil proceedings has been held admissible in subsequent criminal proceedings, and our Supreme Court has ruled that demonstrative evidence such as charts and diagrams may “be received into evidence and [may] go out with the jury during deliberations.”

3. Brown contends that the trial court erred in admitting hearsay evidence and in allowing a State’s expert witness to invade the province of the jury. Again, however, Brown has not shown that she objected to this evidence, but claims that, because she was not an attorney, she “would not have known to object.” Brown’s problems were of her own making. She was required to object and failed to do so, thus waiving review of these arguments.

4. Brown argues that the trial court improperly restricted her closing argument. According to Brown, the court erred in prohibiting her from drawing deductions from the evidence and discussing evidence of her intent, and in continuously rebuking her for commenting on matters not in evidence. We review the trial court’s limitation upon closing argument under the abuse of discretion standard.

Upon reviewing Brown’s entire closing argument, we find no abuse. During closing argument, Brown continuously attempted to inform the jurors about facts she thought they should know about, but were not in evidence. While the trial court often rebuked her for her attempts, it also appears that it granted her considerable latitude in addressing the jury.

As the trial court correctly noted, litigants are not permitted to introduce facts or make statements about matters that were not placed in evidence. Accordingly, we find that the trial court did not abuse its discretion in curtailing Brown’s efforts to violate this rule.

5. Finally, Brown asserts three instances in which the trial court purportedly erred in charging the jury. Again, we find no error.

(a) Brown first argues that the trial court erred in instructing the jury, before closing arguments, that her closing argument was an unsworn statement which should be given no weight. Brown, however, has mischaracterized the court’s instruction. The trial court actually informed the jurors that they should disregard any statements made during closing arguments purporting to introduce new evidence. As discussed in Division 4, this was a correct statement of the law. Thus, we find no error.

(b) Brown also argues that the trial court erred in charging the jury that they could consider pre-1995 information contained in her civil deposition. In Division 2, we concluded that Brown waived any objections to the introduction of the deposition into evidence. She nonetheless complains that the jury should have been informed that it could not consider any matters in the deposition that predated 1995 because she was not charged with committing any crimes before that date. Even assuming that the trial court should have given a limiting instruction, Brown has not cited any specific testimony in her deposition that, if considered by the jury, would have been harmful. “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal.” Under the circumstances here, we find no grounds for reversal.

(c) Finally, Brown argues that the trial court erred in recharging the jury on what constitutes a misapprehension of fact and in giving them a supplemental instruction on mistake of law. The record shows that, in response to the jury’s request for clarification on the court’s charges on intent and misapprehension of fact, the court gave the following supplemental instructions. First, the court charged the jury that “[fignorance of the law excuses no one.” The court then recharged the jury on the definition of “intent.” The court also explained to the jury that “[a] mistake of fact would be as when a person is charged with a violation of having sex with an underage person that he or she was under the mistaken fact of the person’s age.”

Brown contends that the court erred in charging the jury on mistake of law because the instruction was not requested and because she did not present it as defense. “Generally, the scope and content of additional jury instructions are left to the sound discretion of the trial court, and the trial court may address only the jury’s request on a particular point or give additional instructions.” In this case, the jury was obviously confused about the principles of mistake and intent, and the trial court did not abuse its discretion in giving an additional instruction to alleviate the confusion.

Decided June 12, 2002

Reconsideration denied July 19, 2002

Lawson & Thornton, George O. Lawson, Jr., for appellant.

J. Thomas Durden, Jr., District Attorney, Lewis M. Groover, Jr., Assistant District Attorney, for appellee.

As for the court’s example of a mistake of fact, pretermitting any error, Brown has not shown, and we cannot discern, how the court’s illustration could have harmed Brown in this case. The jury was not, after all, deciding whether she committed a sexual offense. We find no reversible error.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       212 Ga. App. 885 (443 SE2d 513) (1994).

       See Brown v. Liberty County, 271 Ga. 634 (522 SE2d 466) (1999).

       See id.

       See Gamble v. State, 235 Ga. App. 777, 780 (4) (510 SE2d 69) (1998).

       (Citations and punctuation omitted.) Id.

       See id. at 781-782; McDowell v. State, 239 Ga. App. 667, 668-669 (1) (522 SE2d 44) (1999); Reviere v. State, 231 Ga. App. 329, 331 (1) (498 SE2d 332) (1998).

        McDowell, supra at 669.

       See id.; Gamble, supra; Reviere, supra.

        Stephens v. State, 208 Ga. App. 620 (1) (431 SE2d 422) (1993).

       See McDowell, supra.

       See Wilson v. State, 231 Ga. App. 621 (1) (500 SE2d 387) (1998).

       Cf. Shaw v. State, 251 Ga. 109, 111-112 (303 SE2d 448) (1983) (finding “that the fault, if any, for [the defendant’s] lack of counsel at trial rest[ed] not with [the defendant], but with [the attorneys he had retained]”).

       See Wilson, supra (trial court did not abuse discretion in denying motion for continuance, made on day of trial, to employ new counsel); Stocks v. State, 224 Ga. App. 433, 434-435 (2) (481 SE2d 230) (1997) (same); Williams v. State, 225 Ga. App. 319, 321 (2) (483 SE2d 874) (1997) (“trial court may consider the conduct of the party requesting the continuance ... to prevent a party from using employment of counsel as a dilatory tactic”) (punctuation omitted); see also Tinker v. State, 218 Ga. App. 792, 793-794 (1) (b) (463 SE2d 368) (1995) (trial court did not err in refusing continuance to hire new counsel when it allowed defendant to dismiss appointed counsel); Stephens, supra (trial court did not err in denying defendant’s request for continuance to hire new counsel because “he felt mighty incompetent with [his appointed] attorney”) (punctuation omitted).

       (Punctuation omitted.) Rivers v. Goodson, 184 Ga. App. 70, 71 (1) (360 SE2d 740) (1987).

       See Love v. State, 202 Ga. App. 889, 891 (416 SE2d 99) (1992).

        Outdoor Advertising Assn. &c. v. Garden Club of Ga., 272 Ga. 146, 148 (2) (527 SE2d 856) (2000) (quoting Code of Professional Responsibility of the State Bar of Georgia, Rule 3-109, EC 9-3).

       Id. at 149 (quoting ABA Formal Opinion 342 (1975)).

       See id. at 151.

       See Rivers, supra at 71.

        Outdoor Advertising, supra at 148.

       See id.

        Nichols v. State, 253 Ga. App. 512, 515 (2) (559 SE2d 538) (2002).

       Brown cites generally to page seven of her written motion for new trial, which does not address the argument raised here.

       (Punctuation omitted.) Tuten v. State, 242 Ga. App. 223, 228 (9) (529 SE2d 221) (2000).

       Although Brown argues on appeal that the trial court prohibited trial counsel from testifying at her new trial hearing, the cited portion of the transcript does not support this argument. To the contrary, the record shows that trial counsel were present at the hearing, but that Brown declined to call them as witnesses.

       (Citations and punctuation omitted.) Nichols, supra.

       See id.

       See Rogers v. State, 253 Ga. App. 675, 677-678 (3) (560 SE2d 286) (2002); Nichols, supra.

       (Punctuation omitted.) Rogers, supra at 678.

       (Punctuation omitted.) Reviere, supra at 333 (5).

       See Mason v. State, 274 Ga. 79, 81 (3) (548 SE2d 298) (2001) (defendant’s failure to raise “continuing witness” rule at trial resulted in waiver on appeal).

       See Lam v. State, 208 Ga. App. 324-325 (2) (430 SE2d 775) (1993).

        Moss v. State, 274 Ga. 740, 741-742 (2) (559 SE2d 433) (2002).

       See Reviere, supra; Roseberry v. State, 274 Ga. 301, 304 (3) (553 SE2d 589) (2001).

       See Massey v. State, 272 Ga. 50, 52 (5) (525 SE2d 694) (2000).

       See OCGA § 17-8-75; see also Turner v. State, 247 Ga. App. 775, 780 (6) (544 SE2d 765) (2001).

       See Massey, supra.

       See OCGA § 17-8-75; Turner, supra.

       (Punctuation omitted.) Miller v. State, 226 Ga. App. 509, 514 (3) (486 SE2d 911) (1997).

       See id.

       (Punctuation omitted.) Christensen v. State, 245 Ga. App. 165, 169 (8) (537 SE2d 446) (2000).

       See id.

       See Miller, supra.


author: Pope, Presiding Judge.

text:
    A02A0698.
    BLANEY et al. v. O’HERON et al.
    (568 SE2d 774)
   Pope, Presiding Judge.

Dr. Thomas D. Blaney and his wife, Jean Blaney, appeal from the trial court’s grant of summary judgment to defendants Dr. Sara O’Heron and the Emory Clinic, Inc. on the Blaneys’ claims that they were falsely accused of sexually molesting their two granddaughters. We reverse.

The accusations arose after the children, then two and four, stayed with their grandparents over the weekend of September 19-21, 1997. Two days later, Carla Blaney, the girls’ mother and the Blaneys’ daughter-in-law, took the girls to an Army physician at Ft. Gordon and reported her suspicion that the children may have been subjected to sexual abuse by their grandfather. The mother based her suspicions upon conversations with the children and her observations of their behavior. The Army doctor’s physical exam found no evidence of abuse. The Blaneys’ son, Mike, who is also a doctor, returned from out-of-town about one week later, and he, too, noticed nothing abnormal when he examined the girls.

During the same period, Carla Blaney also arranged for her children to be evaluated by an Army social worker. In accordance with Army protocol, the social worker reported the allegations of abuse to the Columbia County Department of Family & Children Services. That department, in turn, reported the matter to the DFACS office in Fayette County, where the Blaneys resided.

Carla Blaney also directly contacted a detective at the Fayette County Sheriff’s Department, who recommended that she take the girls to be examined by O’Heron at the Fayetteville office of the Emory Clinic. On October 16, 1997, O’Heron performed physical examinations and conducted interviews with the children and discussed the situation with Carla Blaney. The Fayette County detective was also present. O’Heron subsequently reported that she found physical evidence of sexual abuse of one of the girls, but that her examination of the other child was normal. In addition, she recommended to the detective that Thomas and Jean Blaney be arrested.

The Fayette County Sheriff’s Department executed arrest and search warrants the next day. Although one grand jury initially indicted the Blaneys on a number of charges, the case was later taken over by a new assistant district attorney, who conducted further investigation and resubmitted the matter to the grand jury in March 1999. The second grand jury issued a “no bill” on all counts. On March 9, 1999, the State of Georgia entered a nolle prosequi on the charges from the first indictment.

The Blaneys subsequently filed this action in DeKalb County Superior Court against O’Heron and the Emory Clinic, asserting claims for malicious prosecution, professional malpractice and ordinary negligence. The trial court granted summary judgment finding that O’Heron and the Emory Clinic were protected by statutory good faith immunity under OCGA § 19-7-5 (f). The Blaneys appeal, asserting that the trial court erred in granting summary judgment on their claims because the record contains sufficient evidence to raise a jury question as to whether O’Heron acted in good faith in connection with her report and in connection with her later testimony concerning the alleged child abuse.

Georgia law requires that a physician who has reasonable cause to suspect child abuse must report the abuse to the appropriate authorities. OCGA § 19-7-5 (c) (1) (A). And the knowing or wilful failure to do so constitutes a misdemeanor. OCGA § 19-7-5 (h). Moreover, Georgia law provides a qualified immunity for those who make such a report in good faith:

Any person . . . participating in the making of a report or causing a report to be made to a child welfare agency providing protective services or to an appropriate police authority pursuant to this Code section or any other law or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation pursuant to this Code section or any other law is made in good faith. Any person making a report, whether required by this Code section or not, shall be immune from liability as provided in this subsection.

OCGA § 19-7-5 (f). The issue of “good faith” is usually for the jury, but in cases such as this where important policy decisions underlie the grant of good faith immunity, “greater scrutiny should be given to evidence of whether a defendant acted in good faith” to determine whether the issue can be resolved as a matter of law. Thomas v. DeKalb County, 227 Ga. App. 186, 189 (2) (489 SE2d 58) (1997).

A defendant generally has the burden of establishing the affirmative defense of immunity. Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 631 (2) (431 SE2d 427) (1993). Here, O’Heron submitted an affidavit in support of the motion for summary judgment stating her basis for making the report of the alleged child abuse and asserting that she acted in good faith. When a moving party makes a prima facie showing that she is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence in order to avoid summary judgment. Threadmill, Ltd. v. First Union Nat. Bank &c., 207 Ga. App. 688 (428 SE2d 685) (1993). Accordingly, the Blaneys bear the burden on summary judgment of rebutting O’Heron’s affidavit.

This Court has held that in order to overcome a claim of good faith immunity, a plaintiff must demonstrate more than mere professional negligence or bad judgment. Michaels v. Gordon, 211 Ga. App. 470, 473 (2) (439 SE2d 722) (1993). Rather, there must be a showing that the physician did not act in good faith. “Good faith” has been defined as “a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.” (Citation and punctuation omitted.) Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753 (1) (251 SE2d 250) (1978).

Although this definition is expressed in subjective terms, this Court has employed an objective test in other contexts involving good faith and a duty of reasonable inquiry. See, e.g., Kendrick v. Funderburk, 230 Ga. App. 860, 864 (3) (498 SE2d 147) (1998) (duty of reasonable inquiry in asserting a good faith claim establishes an objective good faith requirement). Here, the reporting statute requires “reasonable cause to believe that a child has been abused” before an individual is required to report those suspicions. OCGA § 19-7-5 (c). Accordingly, anyone reporting child abuse under this statute must act with reasonable good faith, judged in light of all the circumstances, before immunity will attach. See Dunning v. Paccerelli, 63 Wash. App. 232, 240 (818 P2d 34) (1991) (construing similar statutes requiring “reasonable cause to believe” before reporting mandated and “good faith” immunity provision).

To establish that a reporting physician has not acted with such objective good faith requires evidence of bad faith. Michaels v. Gordon, 211 Ga. App. at 473 (2) (b) (“ ‘Bad faith’ is the opposite of ‘good faith.’ ”) (punctuation omitted). “Bad faith” has been defined as:

generally implying or involving actual or constructive fraud; or a design to mislead or deceive another; or a neglect or refusal to fulfill some duty, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. “Bad faith” is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will.

(Citations and punctuation omitted.) Baldwin County Hosp. Auth. v. Trawick, 233 Ga. App. 539, 541 (504 SE2d 708) (1998). Therefore, bad faith may encompass a breach of duty motivated by one’s own interests or some other “sinister” or dishonest purpose.

The Blaneys assert that the record in this case raises a question as to whether O’Heron’s report was motivated by her own self-interest in promoting herself to local authorities as an expert in child abuse, rather than in the good faith exercise of her professional duty. They note that her typed report of her examination contains allegations that go beyond those reported to the Army doctors to include claims of vaginal and anal penetration. The report also states that her physical exam, which occurred twenty-six days after the abuse allegedly occurred, supports these allegations, despite the fact that the Army doctor who examined the children three days after the alleged incident found no such evidence. They also note the typed report, which was dictated four days after the exam, gives detailed descriptions of her interviews with the children, including quotes, but her handwritten notes made the day of the interview do not contain such detail. Moreover, O’Heron’s records from the date of the exam contain no notes regarding the physical exam, in contrast with the detailed description contained in the typed report dictated four days later.

The Blaneys further rely upon evidence of O’Heron’s actions in later legal proceedings to support their claim that she was acting with an improper motive. The charges against the Blaneys became an issue in the subsequent divorce proceedings between Carla and Mike Blaney, the children’s parents. O’Heron provided affidavits on Carla Blaney’s behalf. In particular, she submitted an affidavit on April 17,1998, in response to one from the Army physician who originally examined the girls and found no physical evidence of child abuse. In that affidavit, O’Heron states that the Army doctor’s medical conclusions are “100% wrong,” that he was untrained in the medical aspects of child abuse and that his examination was “superficial.” But the evidence presents a question as to whether O’Heron had even reviewed the doctor’s records at the time she gave this affidavit, even though the affidavit states that she had. In her deposition, O’Heron could not state conclusively when she had reviewed the Army doctor’s examination report, although the doctor’s records do appear in Emory Clinic’s files. Nor is there any evidence that she had any knowledge of the Army doctor’s background or training prior to questioning his expertise.

O’Heron also states in the affidavit that she concluded from her October 16, 1997 examination of the children “that the injuries sustained by them in mid to late September were compatible with my physical findings in terms of state of healing.” She then said that she could state “categorically” that the injuries had not occurred within seven to ten days prior to her examination. The Blaneys argue that this statement falsely implies that O’Heron found physical evidence of abuse on both children, when her written report showed that the exam of one of the girls “was completely normal.”

They also assert that by purporting, some 26 days after the fact, to be able to pinpoint the time of the abuse to the period the children were with their grandparents, O’Heron went beyond mere negligence into the realm of advocacy to justify her original findings and arrest recommendation. In support of this argument, they note that several other physicians, who have expertise in child abuse cases and who reviewed O’Heron’s reports and affidavits, have expressed more than merely a medical disagreement with O’Heron’s findings and judgment. These doctors stated that they were “utterly astonished,” “appalled” and “horrified” that a physician would claim to be able to date the occurrence of the abuse back more than 20 days.

In addition, O’Heron stated in this affidavit that she had used a colposcope, to examine the girls without stating when the instrument was used. But the guardian ad litem for the children had previously asked O’Heron whether she had used a colposcope during the October 16 exam, and O’Heron admitted that she had not. Neither her office notes, her written report nor Emory records from the October examination reflect the use of a colposcope, although they do for a later examination in March 1998. The Blaneys assert that O’Heron was falsely implying that she used the instrument in the October examination in order to bolster her findings in comparison with those of the Army doctor.

And they argue that although O’Heron represented herself to the family court to be an expert in the area of child abuse, the résumé she submitted contains misrepresentations as to her prior experience and training. They point to a number of discrepancies between the entries on her résumé and other evidence in the record in support of this argument.

The Blaneys argue that, when considered together, all these instances demonstrate that O’Heron was more concerned with defending her reputation than presenting a clear and accurate picture of her examination to judicial authorities. And they assert that this argument is further supported by evidence from a prior controversial incident in which O’Heron reported child abuse to authorities.

O’Heron previously was sued in Texas by the parents of a teenage girl after she reported to authorities that the girl had been sexually abused by her father and recommended that the girl remain in protective custody. The girl denied any abuse or any prior sexual activity. O’Heron reported, however, that her examination had revealed that girl had no hymen and that there was evidence of vaginal penetration. But in examinations conducted both before and after O’Heron’s, two physicians reported that the girl’s hymen was intact and that there was no evidence of penetration. Civil proceedings against the parents were subsequently dismissed, and the girl was released back into their custody. Although the parents’ pro se lawsuit was also later dismissed, the local district attorney issued instructions to child protective services not to use O’Heron’s services in future child abuse cases as a result of the incident. The Blaneys assert that this evidence shows a course of conduct and motive by O’Heron to represent herself to local authorities, first in Texas then in Georgia, as a child abuse expert and then to attempt to maintain that status by reporting that she found evidence in support of the authority’s cases.

O’Heron and the Emory Clinic assert, however, that evidence of O’Heron’s actions after making the initial report are irrelevant, as is her conduct in any unrelated matters. They state that the only issue is whether O’Heron submitted her initial report in good faith. But as a general rule, issues of good faith, motive and intent are not “easily susceptible of direct proof,” but may depend upon other, less direct evidence: “frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things.” (Citations and punctuation omitted.) Thomas v. DeKalb County, 227 Ga. App. at 189-190 (2).

Moreover, evidence of prior actions could be relevant to the issue of malice, which is an element of the Blaneys’ malicious prosecution claim. Such evidence is relevant where it demonstrates that a defendant was aware from previous experience that his actions in the past had resulted in similar injuries, but nevertheless continued in his course of conduct “in utter indifference to the consequences.” Wood v. D. G. Jenkins Homes, 255 Ga. App. 572, 574 (565 SE2d 886) (2002). See also Worn v. Warren, 191 Ga. App. 448-449 (1) (382 SE2d 112) (1989); Gunthorpe v. Daniels, 150 Ga. App. 113, 114-115 (3) (257 SE2d 199) (1979).

O’Heron’s subsequent actions are also relevant to the malicious prosecution claim. The Blaneys assert that O’Heron became a prosecutor of the criminal charges against them when she went beyond mere reporting to recommend that the Blaneys be arrested. Under Georgia law, a party runs the risk of subjecting himself to liability for malicious prosecution where he, directly or indirectly, urges that criminal proceedings be instigated:

The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution; in the latter case there is not.

(Citations omitted.) Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 178 (3) (243 SE2d 528) (1978). Therefore, a question of fact exists in this case as to whether O’Heron submitted herself to potential liability by urging the Fayette County detective to arrest the Blaneys.

Of course, to sustain their claim for malicious prosecution, the Blaneys must prove all the elements of the claim: “(1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. OCGA § 51-7-40.” (Citations omitted.) Willis v. Brassell, 220 Ga. App. 348, 350 (469 SE2d 733) (1996).

The Blaneys assert that O’Heron lacked probable cause in asserting her claims against them, and such an issue is generally for the jury. Willis v. Brassell, 220 Ga. App. at 353 (4). And even if a jury finds that a defendant initially had probable cause to instigate prosecution, if evidence shows that a defendant may have later discovered that the claims lacked probable cause, yet persisted in the prosecution, an issue of liability remains:

Even if on instigating the prosecution the prosecutor had probable cause at the commencement, if he afterwards acquired knowledge, or the reasonable means of knowledge, that the charge was not well founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury.

(Citations and punctuation omitted.) Fuller v. Jennings, 213 Ga. App. 773, 776-777 (1) (445 SE2d 796) (1994). Probable cause cannot exist if a defendant “knew that the facts stated to the law enforcement official were false or if he failed to make a fair, full, and complete statement of the facts as they existed, or if he concealed facts. The defendant’s belief then could not possibly be ‘honest’ or ‘reasonable.’” (Citations omitted.) Willis v. Brassell, 220 Ga. App. at 353 (4).

Thus, for example, if the jury were to conclude from the evidence that O’Heron’s April 1998 affidavit contained misrepresentations as to the methodology and conclusions in her initial report, this could raise a question of fact as to whether, at the time of that affidavit, she was acting in good faith in continuing to defend her physical examination, thus furthering the Blaneys’ prosecution. In addition, such a finding could also raise a question as to whether the initial report was made in good faith or whether a later misrepresentation of the methodology and conclusions involved undermines the report’s validity.

Even if an individual subjectively believes that child abuse has occurred, an issue of bad faith would arise if in reporting his suspicions, that individual intentionally misrepresented the basis upon which he relied in reaching his conclusions. Under such circumstances, it would be up to a jury to determine whether the individual was merely exercising bad judgment or negligence, or whether the individual’s actions “import [ ] a dishonest purpose or some moral obliquity, and implfy] conscious doing of wrong.” (Citations and punctuation omitted.) Baldwin County Hosp. Auth. v. Trawick, 233 Ga. App. at 541. We caution, however, that to survive summary judgment, the evidence must show more than mere disagreement with a physician’s conclusion that child abuse has occurred. Rather, the evidence must present fact issues regarding the doctor’s motive, intent or honesty in reporting those conclusions.

Decided July 3, 2002

Reconsideration denied July 19, 2002

Moraitakis, Kushel & Pearson, Nicholas C. Moraitakis, Albert M. Pearson III, for appellants.

Allen & Weathington, Hunter S. Allen, Jr., Kara A. Hicks, for appellees.

In this case, we find that the record, when considered as a whole, presents issues of fact as to whether O’Heron is entitled to good faith immunity. In reaching this decision, we are mindful of the serious policy considerations behind OCGA § 19-7-5 (f). The importance of encouraging physicians and others responsible for the welfare of children to report their reasonable suspicions of child abuse cannot be overemphasized. But the privilege granted by the General Assembly is not absolute. Here, the evidence as to O’Heron’s subsequent testimony and prior actions raises material issues of motive, intent, honesty and “moral obliquity.” Where such issues exist, summary adjudication is not appropriate. See generally Catterton v. Coale, 84 Md. App. 337, 343 (I) (579 A2d 781) (1990); Martin v. County of Weld, 43 Colo. App. 49 (598 P2d 532) (1979). Cf. Purcell v. Breese, 250 Ga. App. 472 (552 SE2d 865) (2001) (holding summary judgment not warranted under statute granting good faith immunity to physicians who fail to comply in good faith with statutory discharge procedures).

Judgment reversed.

Ruffin and Barnes, JJ, concur.

       Our review of the record is de novo, and we view the evidence in the light most favorable to the Blaneys, as the nonmoving parties. Payne v. Harbin, 254 Ga. App. 402 (562 SE2d 772) (2002).

       We note that O’Heron has denied any misrepresentations and offered explanations for some of the statements in her affidavit, but these explanations simply raise issues of fact for the jury.