text:
    A97A0388.
    NIHART v. THE STATE.
    (488 SE2d 740)
   Ruffin, Judge.

John Nihart appeals from his conviction for aggravated sodomy and cruelty to children. For reasons which follow, we affirm in part and reverse in part.

The evidence shows that in August 1991, Patricia Covello and her 13-year-old daughter, J. M., visited Nihart at his home in Smyrna, Cobb County, Georgia. At the time, Covello lived in Connecticut with her two sons and J. M.

Covello testified that during the first night of their visit, she and Nihart entered J. M.’s bedroom. At Nihart’s request, Covello held J. M.’s wrists while he removed J. M.’s underwear and placed his tongue on her vagina. J. M. similarly testified that she awoke that night to find her mother holding her wrists and Nihart touching her vagina with his mouth. According to Covello, Nihart also “performed oral sex on [J. M.]” one evening when Covello was not in the room. In addition, Covello and J. M. testified about a third incident, during which Nihart placed his mouth on J. M.’s vagina while Covello placed her mouth on Nihart’s penis.

J. M. further testified that before she left Georgia, Nihart told her if she reported the incidents, “he would go to jail along with [her] mom. And he told [her] that [her] brothers would go to foster homes. And he said when he got out he’d kill [her] and [her] mom and [her] brothers.” J. M. could not recall where Nihart made this statement, but believes it occurred on the day she and her mother returned to Connecticut.

J. M. ultimately reported the incidents to Connecticut authorities, who commenced an investigation. Georgia authorities obtained the results of Connecticut’s investigation and subsequently arrested Nihart, who was indicted on one count of aggravated sodomy and one count of cruelty to children. A jury found Nihart guilty on both counts, and the trial court sentenced him to life in prison for aggravated sodomy and 20 years on probation for cruelty to children. Nihart now appeals his conviction and sentence.

1. In his first enumeration of error, Nihart argues through new appellate counsel that his two trial attorneys provided him ineffective assistance at trial. After an evidentiary hearing at which both of Nihart’s trial counsel testified, the trial court denied Nihart’s motion for new trial and implicitly concluded that trial counsel were effective. We find no basis on which to reverse the trial court’s determination in this regard.

“To establish a claim of ineffective assistance of counsel, [Nihart] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Nihart] must establish both the performance and the prejudice components of the Strickland test.” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless ‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’. . . [Cits.]” Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996).

Nihart cannot meet his burden simply by questioning trial tactics. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. . . . [T]he fact that [Nihart] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Nihart’s] original representation was inadequate.’ ” (Citations omitted.) White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989). Trial counsel’s decisions regarding “which witnesses to call, whether and how to conduct cross-examinations, . . . and all other strategies and tactical decisions are the exclusive province of the lawyer[s] after consultation with the client.” (Citation and punctuation omitted.) Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995). To succeed in his claim, Nihart “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) White, supra. Absent clear error, we will affirm the trial court’s finding that Nihart received effective assistance of trial counsel. Johnson, supra.

(a) Nihart argues that his trial counsel were ineffective because they asked Detective Mary Katherine Wrozier, the investigating officer in Georgia, to comment on J. M.’s truthfulness.

The record shows that on cross-examination, defense counsel tendered Detective Wrozier as an expert in the area of validating child sexual abuse complaints, and the prosecution raised no objection. Counsel then inquired about Detective Wrozier’s efforts to validate J. M.’s complaint. Specifically, counsel highlighted her reliance on the Connecticut investigation and failure to interview J. M. before arresting and charging Nihart. Trial counsel further questioned Detective Wrozier about certain indicia of truthfulness Nihart claimed were missing in this case. Counsel then asked: “How do you know which side is the truth now in this case? Can you really tell just by having interviewed this witness one time two days ago?” Detective Wrozier responded: “I feel that she told the truth then. She’s telling the truth now.”

Nihart argues that trial counsel’s decision to elicit testimony regarding J. M.’s credibility was unreasonable. While J. M.’s credibility rested exclusively within the jury’s province and should not have been bolstered by Detective Wrozier, Guest v. State, 201 Ga. App. 506, 507-508 (1) (411 SE2d 364) (1991), trial counsel made a conscious, tactical decision to explore this area of testimony and raise questions regarding Detective Wrozier’s decision to pursue this case. As established at the hearing on Nihart’s motion for new trial, one goal of defense counsel’s cross-examination was to attack the credibility of the State’s witnesses and “to show that. . . there was a rush [to] judgment made, with very little — with, in fact, no investigation ... of these witnesses from Connecticut.” Trial counsel urged this defense to the jury in closing argument, arguing that Detective Wrozier ignored her “duty to distinguish between valid and invalid complaints of child abuse” and simply relied on the investigation conducted by Connecticut authorities.

At the new trial hearing, both defense counsel testified that they discussed their trial strategy with Nihart, who agreed with their ultimate tactics. We refuse to second-guess such a strategic decision, which falls within the lawyers’ exclusive province after consultation with the client. Hudson, supra. Accordingly, the trial court did not err in denying Nihart’s new trial motion on this ground.

(b) Nihart further challenges defense counsel’s decision to introduce a sexually explicit card that Covello sent Nihart. Nihart complains that the card corroborated testimony from J. M. and Covello that he asked for and received nude pictures of J. M. The trial transcript reveals, however, that counsel introduced this evidence to impeach Covello, who testified that she did not send any mail to Nihart.

“The fact that [appellate counsel argues] that this tactic hindered rather than aided [Nihart’s] defense has no bearing on the reasonableness of trial counsel’s tactics. [Cit.]” Hammond v. State, 264 Ga. 879, 882 (3) (a) (452 SE2d 745) (1995). The trial court did not err in denying Nihart’s motion for new trial on this ground.

(c) Nihart also questions trial counsel’s decision to present good character testimony, which the State impeached with evidence of Nihart’s two prior drug convictions. Nihart argues that counsel’s tactic enabled prosecutors to highlight his drug convictions.

Both of Nihart’s trial counsel testified at the new trial hearing that they elected to risk revealing the prior offenses in order to introduce the good character evidence. As described by one defense counsel: “[W]e were aware that [Nihart] had what amounted to a misdemeanor drug conviction. It was so old, so remote in time and it was so minor in nature. . . . These allegations on this charge were so serious that we felt that we had to let the jury know that. He had no record other than that one little incident back when essentially he was a kid and that essentially he was of good character. We wanted that character charge.” Co-defense counsel similarly testified that after consultation with Nihart, they decided to introduce character evidence, despite the prior convictions.

The decision to introduce the character evidence, and potentially open the door for impeachment, was clearly one of tactics and strategy. One trial counsel testified that “we thought that [the good character evidence] was more important to the defense than the damage that would come if the jury found out that he had some old minor drug offense.” Again, we refuse to second-guess counsel’s strategic decision. Furthermore, in light of the other evidence of guilt, Nihart has shown no prejudice from introduction of these drug convictions. See Hayes v. State, 263 Ga. 15, 16 (1) (426 SE2d 557) (1993). The trial court properly rejected this argument as a ground for ineffective assistance of counsel.

(d) Nihart also argues that trial counsel could have guarded against this impeachment evidence by objecting to the introduction of his misdemeanor drug conviction as an offense not involving moral turpitude. Even if such evidence is objectionable, we find no ineffective assistance of counsel.

When questioned at the new trial hearing, one trial counsel testified that the defense team decided not to “hide” this misdemeanor because they wanted the jury to know that Nihart had not been convicted of any sexually related or child abuse offenses. Thus, it appears that counsel decided not to challenge this evidence in order to establish that Nihart had no prior sex offenses. As said earlier, we refuse to second-guess counsel’s strategic decision. Moreover, as discussed above, Nihart has not shown that introduction of this conviction prejudiced his defense.

(e) During cross-examination, trial counsel asked Detective Wrozier how she contributed to the investigation, which was conducted to a large extent by Connecticut authorities. Detective Wrozier responded that she “attempted to get a statement from Mr. Nihart, and was advised that he would not be able to get a state — give me a statement.” Claiming that Detective Wrozier had improperly commented on Nihart’s decision to remain silent, defense counsel moved for a mistrial. The trial court denied the motion after finding the comment responsive to defense counsel’s question. At defense counsel’s request, however, the trial court purported to give a curative instruction to the jury.

Nihart now argues that trial counsel ineffectively elicited Detective Wrozier’s comment. Pretermitting the question of whether counsel’s performance was deficient, Nihart has not shown any prejudice.

Evidence regarding a defendant’s decision to remain silent is objectionable and should be excluded. Sims v. State, 213 Ga. App. 151, 152 (2) (444 SE2d 121) (1994). “ ‘Improper reference to a defendant’s silence, however, does not automatically require reversal. (Cits.)’ [Cit.]” Id. The trial court immediately gave curative instructions regarding Nihart’s right to remain silent and “unambiguously instructed the jury that they were not permitted to draw any adverse inference from the fact [that Nihart] asserted his right to silence.” Id. Furthermore, defense counsel did not elicit the response as a comment on Nihart’s decision to remain silent. Instead, the response resulted from counsel’s effort to impeach Detective Wrozier about her actual involvement in the case.

Under these circumstances, a mistrial was not necessary. The curative instruction was sufficient to remove any adverse inference that the jury might have drawn from the response. Id. See also Davis v. State, 157 Ga. App. 290, 291 (277 SE2d 286) (1981). Accordingly, trial counsel’s cross-examination of Detective Wrozier did not prejudice Nihart’s defense.

(f) To support his ineffective assistance of counsel claim, Nihart further argues that trial counsel failed to object to evidence improperly introduced by the State to impeach Robert Krug, a private investigator hired by the defense. The transcript shows that during cross-examination, the State asked Krug about a warrant taken out for his arrest by another citizen following an argument in traffic. Krug admitted that he entered the Cobb County Diversion Program on the charge and explained his reasons for entering the program. On redirect examination, Krug also described his version of the incident to the jury.

Nihart argues that defense counsel should have objected to this impeachment evidence because the incident did not result in a conviction. Even if trial counsel could have properly objected to the evidence, however, Nihart has not shown that the failure to object prejudiced his defense. On re-direct examination, defense counsel gave Krug the opportunity to rehabilitate himself and fully explain his version of the events. We find no reasonable probability that the result in this case would have been different but for trial counsel’s failure to object to this evidence. Cunningham, supra.

(g) Finally, Nihart argues that his trial counsel’s closing argument was ineffective because counsel conceded to the jury that the State proved its case. During closing argument, trial counsel stated the following. “[The prosecutor] told you in opening statement that this wasn’t the only time [the aggravated sodomy] happened. It occurred other times. Now notice that plural. She didn’t say it occurred another time, which would give us two incidents. She said it occurred other times. Now, that makes us at least three. [Detective Wrozier] said that when she talked to [J. M.] on Sunday night, that [J. M.] described three incidents. They said they were going to prove three incidents to you. Now, they charged [Nihart] with one incident. They told you they were going to prove three, and they actually proved two. They didn’t do what they promised you they would do. They didn’t meet their burden of proof. It’s your duty to acquit in that situation.”

This passage from defense counsel’s lengthy closing argument, during which counsel vigorously attacked the State’s evidence, does not establish ineffective assistance of counsel. Defense counsel specifically argued that the jury must acquit because the State had not met its burden of proof. Reading the passage in context, it is clear that counsel made no concession of guilt.

“[D]efense counsel are given wide latitude in closing arguments. This Court will not, with benefit of hindsight, second-guess defense trial strategies in closing arguments. Accordingly, we find no error warranting reversal.” (Citations and punctuation omitted.) McGarity v. State, 212 Ga. App. 17, 22-23 (7) (440 SE2d 695) (1994).

2. In his second enumeration of error, Nihart argues that the trial court improperly denied his motion for directed verdict on the cruelty to children charge because the State failed to prove venue in Cobb County. We agree.

“Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a). And, venue must be established beyond a reasonable doubt. [Cit.]” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Our Supreme Court has further held, however, that “when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. [Cit.]” Id. Pretermitting whether his plea of not guilty is sufficient to raise the issue of venue, the record shows that Nihart first raised the venue challenge in his motion for new trial.

As recently discussed by this Court in Hall v. State, 226 Ga. App. 298 (1) (485 SE2d 800) (1997), the Supreme Court’s decisions regarding the standard of proof for venue have been inherently inconsistent; “[i]f venue must be proved beyond a reasonable doubt, then slight evidence cannot possibly suffice.” See also Brinkworth v. State, 222 Ga. App. 288, 290 (474 SE2d 9) (1996) (Ruffin, J., dissenting). Even applying the slight evidence standard in this case, however, venue was not proved.

In Count 2 of the indictment, Nihart was charged with “maliciously caus[ing] [J. M.], a child under 18 years of age, cruel and excessive mental pain by telling the child if she told anyone about the sexual acts and sexual advances of the accused, her mother would go to jail.” J. M. testified that she was “pretty sure” Nihart made the offensive statement on the day she left Georgia, but she could not remember where.

The State also presented the testimony of K. W., a schoolmate J. M. called while in Georgia. K. W. testified that J. M. reported the sodomy incident to her, as well as Nihart’s threat. Yet, K. W.’s testimony provided no information about where Nihart and J. M. were when the threat was made. The clearest details regarding the threat were presented by Detective Wrozier, who testified that “[J. M.] advised [her] that there was a threat made ... at the train station” or en route to the station before J. M. and her mother left Georgia. Detective Wrozier, however, presented no testimony about the location of the train station, its proximity to Cobb County, or the route J. M. and her mother took to the station. Compare Withman v. State, 210 Ga. App. 159, 160 (435 SE2d 519) (1993) (sufficient proof of venue for crime committed in moving car established by testimony that the route of travel included the county in which the defendant was tried).

The jury had no basis from which to conclude that the cruelty to children offense occurred in Cobb County. Only rank speculation supports venue in this case. Accordingly, the trial court erred in denying Nihart’s motion for a directed verdict of acquittal as to the cruelty to children charge. See Sanders v. State, 182 Ga. App. 581, 583 (2) (356 SE2d 537) (1987).

3. Nihart next argues that the trial court erred in not granting a mistrial after Detective Wrozier testified about his refusal to make a statement to police. This argument is without merit. As discussed in Division 1 (e), a mistrial was not necessary in this regard.

4. Following Nihart’s conviction for aggravated sodomy, the trial court sentenced him to life imprisonment. Nihart now argues that his sentence violates the Eighth Amendment to the United States Constitution.

OCGA § 16-6-2 (b) provides that “[a] person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by imprisonment for not less than one nor more than 20 years.” “Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. Legislative discretion must be deferred to unless, under the circumstances, the sentence shocks the conscience.” (Citations and punctuation omitted.) Graham v. State, 266 Ga. 543, 544 (4) (468 SE2d 363) (1996). See also Brogdon v. State, 220 Ga. App. 31, 35 (6) (467 SE2d 598) (1996). We find that Nihart’s life sentence falls within the statutory limit and, given the circumstances of this case, does not shock the conscience. Given the sordid conduct of the victim’s mother and the latter’s paramour, along with such unimpeachable wickedness, we cannot say that the sentence imposed is cruel and inhumane. Accordingly, this enumeration has no merit.

5. Finally, Nihart claims that the trial court erred in sentencing Nihart to life imprisonment because OCGA § 16-6-2 (b) improperly provides two distinct maximum sentencing options: life imprisonment or twenty years incarceration. According to Nihart, the 20-year maximum abrogates the life imprisonment penalty. We disagree.

Although OCGA § 16-6-2 (b) vests broad discretion in the sentencing judge, it does not provide two maximum sentences, as Nihart contends. The maximum penalty for an aggravated sodomy conviction is life imprisonment. See Waters v. State, 248 Ga. 355, 369 (13) (283 SE2d 238) (1981). The statute also gives the trial court the option to impose, as an alternative, a determinable sentence between one and twenty years. OCGA § 16-6-2 (b). The trial court did not err in sentencing Nihart to life imprisonment. See Corey v. State, 216 Ga. App. 180, 181 (454 SE2d 154) (1995).

Decided July 11, 1997.

Dennis C. O’Brien, Michael D. Reynolds, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Rose L. Wing, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

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

       We note that although J. M. and her mother stayed with Nihart at his Cobb County home during their visit, their “route” to the train station could have commenced from a location other than Nihart’s home.

       During the 1997 session, the General Assembly amended OCGA § 16-6-2 (b), effective February 5, 1997, to provide that a person convicted of aggravated sodomy “shall be punished by imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” Ga. Laws 1997, p. 7, § 3. That amendment does not apply to this case.


source: Caselaw Access Project

author: Smith, Judge. Beasley, Judge,

license: Public Domain

text:
    A97A0457.
    GRICE v. DETWILER et al.
    (488 SE2d 755)
   Smith, Judge.

In 1996, Orie Jon Grice brought a petition to establish his paternity and legitimate Shirley Mae Detwiler’s son, who is now 14 years old. See OCGA §§ 19-7-22; 19-7-43 (a) (5). The trial court, after a bench trial, denied Grice’s petition. We granted a discretionary appeal to review the trial court’s decision. Because this case is controlled by our decision in Ghrist v. Fricks, 219 Ga. App. 415 (465 SE2d 501) (1995), we affirm.

In 1981 and 1982, Detwiler lived with Richard Ogle and had sexual relations with him. She ended that relationship on April 21, 1982, married Grice on June 11, 1982, and moved to Texas with him. Seventeen days later, Detwiler separated from Grice; she returned to Georgia and filed for divorce. Grice learned during the brief marriage that Detwiler was already pregnant; the child was born on January 18, 1983, seven months after the brief marriage and nine months after Detwiler’s relationship with Ogle ended. Although Grice expressed his willingness to treat the child as his own and continue the marriage, Detwiler insisted on a divorce. She amended her complaint to recite .that it was physically impossible for Grice to be the child’s father and that he would have no parental rights to the child.

While Detwiler and her mother told Grice that the child was not his, Grice testified that at the time of the divorce he hired a local attorney specifically to investigate the issue of paternity because he “still wasn’t sure” despite the assurances of Detwiler and her mother. He testified that he relied on a letter from that attorney stating that Grice’s, the mother’s, and the child’s blood groups were dispositive of nonpaternity without further testing: “[T]hat’s what I thought that [the attorney] had done because of that letter.” According to Grice, he relied on “the attorney and the paper work and then what Shirley and her mom had told me.” Grice filed no defense to the divorce, and the January 3, 1983 decree is silent on the issue of children.

In June 1983, Detwiler married Ogle and at approximately the same time successfully petitioned to have the child’s last name changed to Ogle. Detwiler assured Ogle he was the child’s biological father, and for the next 12 years Ogle and the child believed this to be true. Detwiler and Ogle lived as husband and wife for approximately two years, and a second child was born to them during that time.

Detwiler and Ogle later divorced. The 1989 divorce decree refers to both children by the last name of Ogle and as “issue of this marriage.” Detwiler was given custody of the children, and Ogle was required to make child support payments. In 1995, after Detwiler became addicted to crack and was imprisoned on cocaine charges, custody of the children was given to Ogle; he, Detwiler, and Detwiler’s mother then became involved in an extended and acrimonious custody battle. In January 1996, this culminated in a decision by Ogle and his present wife not to allow the children to visit Detwiler’s mother.

Later in the spring of 1996, Detwiler’s mother, asserting that she was concerned for the child’s welfare, contacted Grice and told him that the child was his biological son. In July, Grice filed his petition to legitimate the child and for custody.

Detwiler did not testify at the hearing in this action, but Detwiler’s mother appeared on Grice’s behalf and gave extensive testimony asserting that Ogle was not a suitable father for the child. She attributed to Ogle the child’s misbehavior, adjudication of delinquency, and placement in a “boot camp.” See OCGA § 42-8-35.1. She also testified that she and Detwiler lied to Grice in 1982 because they believed he would seek custody and take the child to Mexico, although she stated no factual basis for this belief and Grice has no apparent connection with that country. Grice elicited testimony that Ogle has been incarcerated on marijuana charges and that he has struck his present wife.

Ogle, relying on Ghrist, supra, moved to dismiss Grice’s petition on the ground that the 1983 divorce decree constituted res judicata or collateral estoppel on the issue of Grice’s paternity. The trial court orally denied Ogle’s motion on the ground that “this Ghrist case . . . is a summary judgment case, so I don’t think I can dismiss without hearing the evidence on all these matters.” After hearing the evidence, the trial court observed, “I don’t believe in dismissals because I think they are usually dilatory, but I’m going to rule on the merits and enter judgment for defendant Ogle and deny the petition for paternity and legitimation.” The court entered an order denying the petition on the basis that it was not in the child’s best interests.

Ogle contends that consideration of the child’s best interests is unnecessary because the issue of paternity was raised in Grice’s 1983 divorce action, Grice had the opportunity to establish paternity, and he abandoned that opportunity by failing to answer the petition. We agree with Ogle that Grice is barred from seeking relief.

This case is controlled by Ghrist, supra, which involved a strikingly similar and belated allegation of paternity. As in Ghrist, a divorce decree exists stating clearly that this child was the issue of that marriage. Here, as there, the ex-wife sought to attribute paternity to another man after raising the child as offspring of this marriage for an extended period of time: three years in Ghrist, but thirteen years in this instance. As in Ghrist, the putative father from outside the marriage seeks to establish paternity.

The only distinction here is that the putative father from outside this marriage was briefly married to the mother rather than engaged in an extramarital liaison. We therefore have not one but two divorce decrees to consider, one now eight years old and the other now fourteen years old. Relying on the principles established in Ghrist, we conclude that these final, unappealed, and mutually consistent judgments must be left undisturbed.

Like the putative father in Ghrist, Grice was fully aware of a question regarding his paternity but failed “to take any steps to conclusively resolve the issue.” Ghrist, supra at 417. Grice asserts that Detwiler and her mother defrauded him to an extent sufficient to avoid res judicata. Id. Grice’s failure to investigate, however, was based not upon their representations but upon Grice’s mistaken belief that his attorney had investigated the matter fully and had concluded that Grice could not be the father of the child. Grice has failed to show reasonable reliance or proximate cause, which are essential elements of fraud. Garcia v. Unique Realty &c. Co., 205 Ga. App. 876, 877-878 (1) (424 SE2d 14) (1992). In contending that Grice need not assert reasonable reliance or proximate cause because he was not a participant in the fraud, the dissent overlooks the multitude of Georgia decisions requiring that these essential elements be shown in every case of fraud, however innocent the claimant. Grice’s allegation of fraud, therefore, is insufficient to overcome the res judicata effect of the first divorce decree.

The second divorce decree states that the child is the issue of Detwiler’s marriage to Ogle. The trial court correctly found that “Ogle has acknowledged [the child] as his son and supported him for thirteen years, except of course during the periods of Ogle’s incarceration. Ogle is [the child’s] ‘real father’ despite Ogle’s sins and regardless of what a blood test might show.” The effect of Grice’s petition would be to “de-legitimate” a 13-year-old child and then “re-legitimate” him as the offspring of a different marriage. “[I]t is clear from our examination of the legitimation and paternity statutes that the primary purpose of these statutes is to provide for the establishment rather than the disestablishment of legitimacy and paternity. . . . That these statutes should be used to establish legitimacy and paternity is appropriate; it is certainly not in the legitimate child’s best interest to be rendered illegitimate. Moreover, public policy will not permit a mother and an alleged father to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on their rights for the first three years of the child’s life.” (Citations omitted.) Ghrist, supra at 419. Certainly after the lapse of 13 years, public policy forbids the court from becoming involved in this inter-familial dispute.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Ruffin and Eldridge, JJ, concur. McMurray, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent, as the facts found by the trial court compel a blood test to resolve scientifically the issue of Detwiler’s son’s paternal parentage.

During Detwiler’s marriage to Ogle, Ogle was twice incarcerated for felony possession of marijuana, as he had been before in 1978. Detwiler became addicted to crack cocaine and was imprisoned in 1995. Custody of the child was given to Ogle. In 1996, at the age of 13, the child was adjudicated delinquent for taking a firearm to school and was placed in a boot camp. See OCGA § 42-8-35.1.

In the spring of 1996 Detwiler’s mother, concerned for the child’s welfare, contacted Grice, informed him the child was his biological son, and admitted that she and Detwiler had deceived Grice in 1982 because they feared he would seek custody and take the child to Mexico. During Detwiler’s pregnancy, Grice had taken birth assistance classes and expressed a willingness to treat the child as his own, even though told it was not his. Detwiler, however, continued to seek a divorce and put her maiden name on the child’s birth certificate as the child’s surname.

Eight weeks after being informed that the child was his issue, Grice petitioned to legitimate the child and to be awarded custody. See OCGA § 19-7-22. He later amended the petition to include requests to establish paternity, see OCGA § 19-7-43 (a) (5), and for the court to order blood tests to resolve any doubt as to paternity, see OCGA § 19-7-45. Ogle, but not Detwiler, answered the petition. The court heard the petition on the merits. At the time of the hearing Ogle and Detwiler were engaged in a custody dispute. During the hearing, Ogle’s current wife (who was also the former wife of Detwiler’s brother) testified that Ogle had struck her on the head at least three times in the past six years, once requiring stitches, and that he had a drinking problem. Detwiler’s mother testified that the child does not get along with Ogle, they fight constantly, the child has run away, and Ogle abuses alcohol and takes drugs.

The court denied Grice’s petition on the basis that examining paternity was not in the child’s best interests.

Ogle contends that review of the court’s “best interests” decision is not necessary because Grice had the opportunity to establish paternity in 1983, abandoned that opportunity, and is barred by res judicata or collateral estoppel from seeking relief now. Ogle had raised res judicata in his answer and at the beginning of the hearing. The court orally denied the motion, and Ogle has not cross-appealed.

OCGA § 9-12-40 codifies the doctrine of res judicata: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” See McIver v. Jones, 209 Ga. App. 670, 672 (434 SE2d 504) (1993). “ ‘Collateral estoppel precludes readjudication of an issue previously adjudicated between the parties or their privies in another action.’ ” (Citation omitted.) Ghrist v. Fricks, 219 Ga. App. 415, 417 (1) (465 SE2d 501) (1995). “ ‘Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, and no litigant will be heard to complain unless it be made plainly to appear that the consent of the complaining party was obtained by fraud, or mistake.’ ” (Citation omitted.) Id. See also Dept. of Human Resources v. Johnston, 220 Ga. App. 477, 478 (1) (469 SE2d 525) (1996) (“[I]n the absence of fraud or mistake, where the issue of paternity has previously been decided, it cannot be relitigated.”).

Grice contends his failure to offer a defense or contest custody in his divorce from Detwiler was the result of the fraud perpetrated on him by Detwiler and her mother. The court found that the two women in fact had committed fraud in 1982 as to Grice’s paternity. Although Ogle argues Grice did not rely on the representations of Detwiler and her mother but rather on the investigations of his divorce attorney, Grice’s testimony clearly shows the former. Ogle’s argument that fraud has not been shown because it is not established the child was fathered by Grice ignores not only that such is the purpose of the blood test but also that Detwiler’s mother testified she and her daughter agreed to deceive Grice about paternity. The finding of fraud was amply justified. This Court cannot reject it and find otherwise. See Edwards v. Wilson, 185 Ga. App. 514, 515 (1) (364 SE2d 642) (1988). Such a fraud upon a divorcing spouse, upon the child, and upon the court itself during a later divorce proceeding not involving the same party is no shield against ascertainment of the truth when the fraud is discovered.

Thus, the holding in Ghrist, supra, does not control. There the putative father who attempted to relitigate the issue of paternity was a party to the fraud, and at the time of the divorce decree, he had all the knowledge he later claimed as the basis for changing the child’s paternity. Because of that knowledge, and his active participation with the mother in concealing the facts, collateral estoppel was appropriate. He was not defrauded. Grice, on the other hand, had no such knowledge but was the victim of the fraud and is in a situation reverse from Fricks’ as it pertains to this later attempt to establish paternity. The doctrines of collateral estoppel and res judicata do not apply. The conclusive presumption of law represented by these doctrines must bow to truth when it is established that the presumption is built on fraud. This principle is recognized in, among other cases, Ghrist, supra at 417; Dept. of Human Resources v. Johnston, supra; Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984); McDonald v. Hester, 115 Ga. App. 740, 741 (155 SE2d 720) (1967).

The trial court found fraud. This Court cannot challenge Grice’s reliance on the misrepresentation without substituting itself as factfinder. The trial court’s finding of fraud has not even been cross-appealed.

Moreover, the issue of whether the child was fathered by Grice was not adjudicated in the only proceeding in which Grice was a party, i.e., the divorce action brought by Detwiler, which Grice did not contest. It covered only their relationship, not Grice’s with the child. Likewise is the case of Dept. of Human Resources v. Johnston, supra, where the Court rejected application of the doctrine of res judicata because the evidence did not show that the issue of paternity had been previously litigated between the parties. In Ghrist, supra at 416-417, the divorce decree between Ghrist and Fricks expressly incorporated a settlement agreement referencing “their” minor child and setting out Ghrist’s visitation rights and support responsibilities.

The court’s decision whether to grant a petition for legitimation is within its discretion. Alexander v. Guthrie, 216 Ga. App. 460, 461-462 (1) (454 SE2d 805) (1995). Whether a blood test is to be ordered under OCGA § 19-7-45 is also a matter of discretion in cases such as this. The word in the statute is “may.” Nevertheless blood tests regarding paternity are judicially recognized as valuable contributors to the search for truth, as they “inject scientific objectivity into the pertinent inquiry.” Whitman v. State of Ga., 212 Ga. App. 523, 524 (442 SE2d 313) (1994). The significance of parentage-determination genetic testing is so highly regarded that a statutory rebuttable presumption has been created for certain results, and evidence of a refusal to submit is admissible to show that the alleged father is not precluded from parentage. OCGA § 19-7-46 (b) and (c).

Decided July 11, 1997.

Jackson & Schiavone, Pattie J. Williams, for appellant.

Gregory N. Crawford, for appellees.

The court found and expressed concern about Ogle’s and Detwiler’s incarcerations and their effect on the child. There was no suggestion in the court’s order or remarks that Grice would be an unfit father, and no evidence was introduced indicating he would be. The court nonetheless concluded that, given the passage of time, it was not in the child’s best interests to open the question of his paternity. Not noted by the court was the uncontradicted testimony that the child has now been informed that Grice is his biological father and has made at least one attempt to telephone Grice, although he broke the telephone connection before Grice was on the line. Thus, as to the child, the issue of paternity is not closed in a very real and personal sense. It can be resolved by the simple expedient of a test. The length of time during which truth is deliberately hidden should not insulate it from exposure.

At the time of hearing, the child was almost 14 years of age. He has since passed that mark. In a custody case, a child of such age has the right to choose with which parent he wishes to live, unless the court determines that parent is not a fit and proper person to have custody. OCGA § 19-9-3 (a). No guardian ad litem was appointed. See OCGA § 19-7-44 (a). If Grice is the biological father, the child should have the right to make the statutory election. He should also be enabled to enjoy all the rights of sonship. The child’s interests are no less important, and should be no less cognizable in law, than his father’s.

The court abused its discretion in denying the requested blood test for the new evidence sought by Grice, which test the court found Ogle himself was willing to take, and in denying the legitimation petition without benefit of a blood test. Discovery of the fraud dissolved the conclusiveness which even the doctrine of res judicata provides. See Smith v. Ga. Dept. of Human Resources, 226 Ga. App. 491, 493 (1) (487 SE2d 94) (1997).

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

       Contrary to the representation that Grice claims was made by his attorney, in 1983 an HLA blood test to establish paternity was available and legally sanctioned in Georgia. See Roddenberry v. Roddenberry, 255 Ga. 715, 717 (342 SE2d 464) (1986).


author: Johnson, Judge.

text:
    A97A0532.
    NICHOLL v. NATIONSBANK OF GEORGIA, N.A.
    (488 SE2d 751)
   Johnson, Judge.

Grant Nicholl sued NationsBank for negligence and defamation arising out of a “true name fraud” perpetrated by a third party. The trial court granted NationsBank’s motion for summary judgment on both causes of action, but did not explain its rationale. Nicholl appeals, and we affirm.

A motion for summary judgment should be granted 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 to support at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review a grant of summary judgment de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

Viewed in this light, the evidence shows Nicholl’s wallet, which contained his driver’s license, social security card, and other items of identification, was lost or stolen in August or September 1993. At least one of the identification documents in the wallet bore Nicholl’s signature.

One year later, on September 2, 1994, Nicholl was stopped by a police officer for speeding. The officer ran a computer check during the traffic stop, which revealed there was an outstanding warrant for Nicholl’s arrest on a charge of writing a bad check. See OCGA § 16-9-20. The officer arrested Nicholl and took him to the police station, where Nicholl was shown a December 1993 check drawn on a NationsBank account he purportedly owned, bearing the signature “Grant Nicholl,” and returned by NationsBank for insufficient funds.

Nicholl never had a checking account with NationsBank. Nicholl never lived at the address printed on the check nor had the home or work telephone number written on it. The signature on the check was not Nicholl’s. However, the social security number and date of birth on the check were Nicholl’s.

After his release on bond, Nicholl went to a NationsBank office and explained that an impostor must have opened an account in his name. A person in the office examined Nicholl’s driver’s license and entered something on a computer, then gave him a telephone number to call. Nicholl called the number and spoke to someone who promised to send him information about the account. The information did not arrive, but Nicholl took no further action at that point. The dates of these first two contacts with NationsBank are not in the record. Apparently, they occurred sometime in September 1994.

In February 1995, after the state crime laboratory verified that Nicholl’s signature did not match the signature on the check, the prosecutor entered a nolle prosequi on the criminal charge. There is no indication in the record Nicholl took any action to inform Nations-Bank of the results of the crime lab’s handwriting analysis.

Two years after his wallet was lost, in August or September 1995, Nicholl attempted to open a checking account with Bank South. Bank South refused to open the account, explaining that the ChexSystems service listed an unfavorable report on Nicholl. Nicholl contacted ChexSystems, which mailed him a December 1995 document showing a report from NationsBank indicating “unsatisfactory handling” of a checking account.

Nicholl contacted NationsBank and again explained the situation. NationsBank responded by sending him documents showing an account had been opened in his name in October 1993 and at least seven checks written on the account had been returned for insufficient funds.

In March 1996, ChexSystems sent Nicholl’s lawyer a letter stating that ChexSystems had contacted NationsBank, which had confirmed that the “unsatisfactory handling” report on Nicholl was accurate. The letter said ChexSystems intended to maintain the information in their files for five years. In May 1996, Nicholl twice attempted to open a checking account with First Union Bank. On both occasions, First Union refused to open the account based on the ChexSystems report, listing the report it had received from Nations-Bank.

1. Nicholl contends the trial court erred in granting summary judgment to NationsBank on the negligence count because no document in his missing wallet bore the address or telephone numbers on the NationsBank checks, and the signature on the checks differed from his real signature, which was on at least one of his stolen documents. Nicholl argues that from these facts, a jury would be authorized to infer NationsBank opened an account for someone who did not have an identification document bearing both a name and a current address or telephone number, and whose signature did not match the signature on the identification documents presented.

Nicholl’s argument fails because it depends on speculation, unsupported by any evidence, that the impostor presented only the stolen documents to NationsBank. The evidence of record shows nothing about what identification, stolen or forged, the impostor actually presented. Moreover, the telephone numbers were handwritten on the checks and therefore prove nothing about any telephone numbers the impostor may have furnished to NationsBank when he opened the account. Nor has Nicholl presented any other evidence from which a trier of fact could conclude NationsBank was negligent in opening the account in his name. “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Citation and punctuation omitted.) Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996).

The record is devoid of any indication Nicholl attempted, through discovery, to obtain more specific information about NationsBank’s conduct in opening the account. There are no interrogatories or requests for production of documents which would establish what identification NationsBank examined or what its identification policies were at the time. There is no deposition testimony of bank employees who could provide such information. There is no expert testimony on what would be a reasonable identification policy for a bank to have. Compare Patrick v. Union State Bank, 681 S2d 1364, 1365, 1367 (Ala. 1996), in which the plaintiff presented testimony from a bank security expert regarding identification requirements that were reasonable and common in the banking industry, and the evidence established the account in the plaintiff’s name was opened with identification that did not meet such requirements. Compare also River Parish Svcs. v. Good Hope Refineries, 457 S2d 1290 (La. App. 1984), and Hartford Acc. &c. Co. v. All American Nut Co., 34 Cal. Rptr. 23 (1963). The evidence in this record neither establishes such a deficiency nor supports an inference of such a deficiency. The trial court therefore did riot err in granting summary judgment to NationsBank on the negligence claim. See generally Lau’s Corp., supra.

2. As to the defamation claim, Nicholl contends a jury would be authorized to find that because he three times orally asserted to NationsBank he had not opened the account, NationsBank should have investigated before confirming to ChexSystems that it was Nicholl who handled the account in an unsatisfactory manner. This claim is subject to the federal Fair Credit Reporting Act, 15 USC § 1681 et seq., which preempts state defamation laws “to the extent that those laws are inconsistent with any provision of [the Fair Credit Reporting Act], and . . . only to the extent of the inconsistency.” 15 USC § 1681t; see Bloom v. I.C. System, 972 F2d 1067, 1069 (II) (9th Cir. 1992).

How a consumer handles a checking account is “information . . . bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living,” and is therefore a “consumer report” under 15 USC § 1681a (d). ChexSystems is a “consumer reporting agency” under 15 USC § 1681a (f) because it “regularly engages ... in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.” See id. The Act provides that no consumer may bring an action in the nature of defamation against one who furnishes information to a consumer reporting agency, “except as to false information furnished with malice or willful intent to injure such consumer.” 15 USC § 1681h (e); see generally Thomas v. Equifax, 142 Ga. App. 422 (236 SE2d 154) (1977). As explained below, the Act mandates summary judgment for NationsBank because the evidence is insufficient to establish it furnished information to ChexSystems with malice or wilful intent to injure.

There is no indication in the record before us that Nicholl offered NationsBank any reasonable evidence he was not the person who opened the checking account. Such evidence could have included a signature for comparison with the one NationsBank had on file, or a copy of the dismissal of the criminal warrant, or evidence of his address or telephone number at the time the account was opened. Nicholl only made oral assertions to NationsBank, and the credibility of those assertions was undercut by his delay of over a year in following up on his first inquiry in September 1994. The driver’s license Nicholl displayed showed only that he was the person making the inquiry and proved nothing about whether he was the person who had originally opened the account. The fact that Nicholl’s bare oral assertions did not induce NationsBank to refrain from confirming its original assertion to ChexSystems does not show that the confirmation was made with malice or wilful intent to injure. See generally Bloom, supra at 1069-1070 (II), and Hoglan v. First Security Bank of Idaho, 819 P2d 100, 102-103 (4) (Id. 1990). Amendments to the Fair Credit Reporting Act that might impose a greater duty on Nations-Bank in situations such as Nicholl’s are not effective until September 30, 1997. See 15 USC § 1681s-2. The trial court therefore did not err in granting NationsBank summary judgment on the defamation claim. A grant of summary judgment must be affirmed if it is right for any reason. Orion &c., L.P. v. Westinghouse &c. Corp., 223 Ga. App. 539, 543 (2) (b) (478 SE2d 382) (1996).

Because we find the issue discussed above determinative, we need not reach the question of whether Nicholl presented sufficient evidence of special damages, which must be proven when the allegedly defamatory communication is not defamatory per se and does not relate to the plaintiff’s trade or business. See Jamison v. First Ga. Bank, 193 Ga. App. 219, 222-223 (3) (387 SE2d 375) (1989).

Judgment affirmed.

Pope, P. J., concurs. Blackburn, J., concurs in judgment only.

Decided July 11, 1997.

Simmons & Simmons, Annie R. Simmons, for appellant.

Sullivan, Hall, Booth & Smith, Robert L. Shannon, Jr., for appellee.

       The affidavit presented by NationsBank explains the identification policy in force three years after the account was opened.


author: Andrews, Chief Judge. McMurray, Presiding Judge,

text:
    A97A0677.
    BUNN-PENN et al. v. SOUTHERN REGIONAL MEDICAL CORPORATION et al.
    (488 SE2d 747)
   Andrews, Chief Judge.

Cheryl Bunn-Penn brought an action alleging that, while she was a patient in the emergency room of Southern Regional Medical Corporation (the hospital) on October 13, 1992, John Mountz, an emergency room technician employed by the hospital, assaulted her by fondling her breasts and inserting his fingers into her vagina without her consent while she was sedated. As defendants, she named Mountz, the hospital, and Kay Neal, a nurse manager in the emergency room. The action sought compensatory and punitive damages and set forth separate counts alleging negligence, professional negligence, negligent hiring and retention, assault and battery, and intentional infliction of emotional distress. Bunn-Penn’s husband also joined the action in asserting a loss of consortium claim.

The hospital and Neal moved for summary judgment on all counts. The trial court granted summary judgment in favor of the hospital and Neal on all counts, and Bunn-Penn and her husband appeal. They contend the trial court erred by granting summary judgment in favor of the hospital and Neal on the claims for negligent hiring and retention, professional negligence, loss of consortium, and punitive damages. They concede that, if the trial court correctly granted summary judgment on the negligent hiring and retention and professional negligence claims, then the claims for loss of consortium and punitive damages also fail. They also enumerate as error that the trial court improperly excluded certain evidence as hearsay in its consideration of the summary judgment motion.

1. Since our review of the record is de novo, we examine all of the evidence proper for consideration on summary judgment to determine if an issue of material fact remains for determination, regardless of whether the trial court considered all of the evidence below. Taylor v. Schander, 207 Ga. App. 627 (428 SE2d 806) (1993).

The hospital produced the affidavit of Deborah Boatwright to show the process by which Mountz was hired as an emergency room technician. Boatwright also gave sworn testimony on this issue in her deposition. Boatwright testified that Mountz went through an application and interview process which verified that he was a trained, licensed, and experienced emergency medical technician. In the written application for employment completed by Mountz, which required disclosure not only of education and work experience but also criminal history, Mountz stated that he had never pleaded guilty or been convicted of a crime more serious than a traffic offense. There is no evidence in the record that Mountz had any such criminal history. He was interviewed by a recruiter from the hospital’s human resources department and by the director of nursing. In checking employment history, the hospital contacted Fayette County where Mountz was then employed as a firefighter and emergency medical technician and received a satisfactory report. After this process, Mountz was hired by the hospital as an emergency room technician in June 1989.

The hospital’s director of nursing provided an affidavit stating that Mountz thereafter received high ratings during an initial performance appraisal period ending in September 1989 and in subsequent reviews. In his first annual employment review in June 1990, Mountz received high performance ratings and was described as “pleasant in working with patients and staff. . . In his second annual employment review in June 1991, Mountz again received consistently high performance ratings and was praised in the evaluation as “an asset to the department [and] [w]ell organized and a hard worker.” In June 1992, in his third annual employment review about four months prior to the alleged sexual assault, Mountz again received high ratings and was described as “a diligent worker and an asset to our department.” In September 1992, the month prior to the alleged sexual assault, Mountz received the hospital’s “Employee of the Month” award.

Neal, the nurse manager of the hospital’s emergency department from September 1989 through May 1992, stated by affidavit and deposition that sometime in the latter part of 1990 or early 1991, nurses Amy Wernert-Yarion and Julia Olivier told her that they were concerned that Mountz’s behavior around female patients was sometimes inappropriate in that he was “quick to help female patients get their clothes off. . .” and was “lingering” in patient’s rooms when the patients were undressing. Neither nurse could tell Neal of any specific incident where Mountz’s behavior raised these concerns, and neither nurse had ever heard any patient complain about Mountz. Neal testified that, although male employees did not routinely assist in dressing or undressing female patients, it depended on the circumstances, and in critical situations “everybody pitches in regardless of sex.” Thereafter, Neal observed Mountz more closely and saw nothing out of the ordinary in his performance.

Nurse Olivier confirmed in her deposition that in the latter part of 1990, she told Neal that there had been some instances where she told Mountz to leave a female patient’s room when it was not necessary for him to be there. After Neal suggested to her that she raise her concerns directly with Mountz, Olivier testified that she talked to Mountz and told him to watch himself in those circumstances and that she did not have any problems with Mountz after that time. She testified that all the patients liked Mountz, complimented him a lot, and that she had never heard any complaints.

Nurse Wernert-Yarion also confirmed in her deposition that she and Olivier spoke to Neal about Mountz. She said that on several occasions she noticed that, while a female patient was being undressed, Mountz would stay in the room when in her opinion he should have realized, as other male technicians did, that it was inappropriate for him to remain. She testified that, after they spoke with Mountz about the problem, he agreed to watch his behavior and he improved. She stated that no patients ever complained about Mountz.

Nurse Donna Coker testified by deposition of one instance where she noticed that Mountz was about to assist a female patient with a bedpan, that she thought it was inappropriate for him to do so, and that she took over from Mountz and assisted the woman. Although Coker denied that she expressed any other concerns about Mountz’s behavior, this testimony was clearly contradicted in an affidavit given by a Clayton County detective who said Coker told him that she had complained about Mountz going into the treatment rooms and watching female patients undress and that Olivier had spoken to Neal about this concern.

Nurse Sherrye Ayers-Drew testified by deposition that she knew of two instances where Mountz placed female patients on bedpans while she was in the room. She testified that, although Mountz acted very professionally in those situations, it was not the normal procedure for male technicians to place female patients on bedpans unless extra strength was needed with a large person, and she mentioned the incidents to Olivier.

2. Bunn-Penn’s negligent hiring and retention claim against the hospital is based on her allegation that she was injured when Mountz fondled her breasts and inserted his fingers into her vagina without her consent while she was sedated — acts which would constitute sexual battery (OCGA § 16-6-22.1) and aggravated sexual battery (OCGA § 16-6-22.2). Accordingly, “[f]or [the hospital] to be negligent in hiring and retaining an employee with violent and criminal propensities, it would be necessary that [the hospital] knew or should have known of those dangerous propensities alleged to have resulted in appellant’s injuries.” Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (298 SE2d 600) (1982).

Assuming, arguendo, that there would be evidence sufficient to show that Mountz committed the alleged acts, the present record contains no evidence which would authorize a jury to conclude that the hospital knew or should have known that Mountz was prone to commit such acts. Although there was evidence of concerns that Mountz was sometimes inappropriately in female patients’ rooms while the patients were undressing and helped or attempted to help female patients with bedpans on three occasions when a female rather than a male technician would normally do so, the evidence shows that these concerns were resolved and Mountz ceased this behavior about a year and a half prior to the alleged sexual assault. In any event, the hospital’s knowledge of these concerns would not have put it on notice that Mountz had a propensity to commit the sexual assault alleged by Bunn-Penn. See Alpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 752-755 (472 SE2d 532) (1996). The record shows that no patients ever complained about Mountz and that he received consistently high performance ratings, even receiving the hospital’s “Employee of the Month” award the month prior to the alleged assault.

There being nothing in the record showing that the hospital failed to exercise ordinary care in the hiring process or in its retention of Mountz, the trial court properly granted summary judgment on this claim in favor of the hospital. OCGA § 34-7-20. That the trial court may not have considered all of the evidence proper for consideration below was harmless error. Taylor, supra.

On the same facts, Bunn-Penn also claims that Neal, the nurse manager of the hospital’s emergency room department, is individually liable, not for hiring Mountz, but for his retention after he was hired by the hospital. There is no merit to this claim, and the trial court properly granted summary judgment in favor of Neal.

3. Bunn-Penn also claims that Neal, by virtue of her position as the nurse manager of the emergency room department where Mountz worked, is liable for professional negligence as a nurse. This claim is apparently made on the theory that it was below the standard of nursing care to allow Bunn-Penn to be exposed to the risk of being assaulted by Mountz. She claims the hospital is liable for the professional negligence of Neal on the basis of respondeat superior.

Even if there had been evidence sufficient to support a claim that, through knowledge acquired by its nurse employee, Neal, after Mountz was hired, the hospital knew or should have known that Mountz had a propensity to sexually assault a female patient, this would have been support for a claim against the hospital for ordinary negligence in retaining Mountz as an employee, not support for a professional negligence claim against Neal and the hospital for providing below standard nursing care. Although Bunn-Penn filed an affidavit pursuant to OCGA § 9-11-9.1 (a), the expert affidavit of a nurse is necessary to support a claim for professional negligence by a nurse only where the alleged act or omission by the nurse requires the exercise of professional nursing skill and judgment. See Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (413 SE2d 720) (1992). It was not a matter within the professional nursing skill and judgment of Neal or any other nurse employed by the hospital to protect Bunn-Penn by assessing whether or not Mountz had a propensity to commit the alleged sexual assault. See Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 109-111 (354 SE2d 872) (1987); OCGA § 43-26-1 et seq. There was no basis for this claim, and the trial court properly granted summary judgment in favor of Neal and the hospital.

Decided July 11, 1997.

Judgment affirmed.

Birdsong, P. J., Beasley and Smith, JJ., concur. McMurray, P. J., Ruffin and Eldridge, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. Evidence was presented of repeated inappropriate professional behavior with female patients (bordering on unhealthy, voyeuristic tendencies) on the part of defendant John Mountz, the emergency room technician employed by appelleedefendant Southern Regional Medical Corporation. This is strong evidence which a jury could find was notice to defendant Southern Regional Medical Corporation of anticipatory sexual misconduct. Since several co-workers had confided their concerns about John Mountz’s behavior to the nurse manager, Kay Neal, that evidence of professional misconduct of an unhealthy and unprofessional attraction to female patients was, in my view, more than sufficient to put the hospital on notice that defendant John Mountz might take inappropriate liberties with sedated female patients. Consequently, a jury question is presented as to plaintiffs’ claim for negligent retention (although not negligent hiring). As my colleagues in the majority would affirm the grant of summary judgment in its entirety, despite the existence of genuine issues of material fact as to .this theory of liability, I respectfully dissent.

I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.

Manely & Silvo, Michael E. Manely, Lorraine R. Silvo, Wheeler & Watson, James A. Watson, for appellants.

Mayfield & Milling, Roberts C. Milling II, Alston & Bird, Dow N. Kirkpatrick II, for appellees.

       Since the detective’s affidavit on this point was substantive evidence of a prior inconsistent statement by the witness, the trial court erred to the extent it excluded it from consideration as non-probative hearsay. Cooperwood v. Auld, 175 Ga. App. 694 (334 SE2d 22) (1985).


author: Smith, Judge.

text:
    A97A0723.
    BRAMBLETT et al. v. EARL SMITH FLOORS, INC.
    (481 SE2d 246)
   Smith, Judge.

In this slip and fall case, plaintiffs Roberta Bramblett and her husband appeal the trial court’s grant of summary judgment to defendant Earl Smith Floors, Inc. Because the existence of different floor levels in a business does not constitute negligence or create an inherent danger, and because Bramblett had equal knowledge of the floor level change, we affirm.

In her complaint, Bramblett alleged that she fell from a step or ledge in appellee’s warehouse. At her deposition, she testified that she entered the warehouse ahead of one of Smith’s employees to look for some scrap linoleum to line her kitchen cabinets. This employee spoke to a male employee who entered the warehouse, although Bramblett could not hear what the first employee said. According to Bramblett, the man replied to the first employee, “well, over here, you know, there’s some more up there or something like that, and I think I turned to look and I think then I stepped off.” Bramblett acknowledged that neither employee was speaking to her at the time. She did later “guess” that the second employee was speaking to “all of us,” but she surmised this only because he was pointing out a product that she wanted; he was responding to a question from the other employee.

Bramblett testified that she did not recall any difficulty seeing where to walk, that she made no complaints regarding lighting, that she was not in a hurry, and that nothing prevented her from seeing her feet or the floor surface. Before her fall, she saw one Smith employee standing on the upper level, and one standing on the lower level of the warehouse. She had already “glanced” at linoleum on the lower level before she fell. She had watched the second employee drive an all terrain vehicle through an outside door, and she had watched him walk “eight or ten steps” toward her on the lower level of the warehouse. She saw the floor on both the upper and the lower level before she fell. She acknowledged that she realized there was a lower level when the second employee came in, but contended she did not know exactly where the level changed.

Bramblett testified that she never looked down at her feet to see the exact location of the change in floor level, that nothing prevented her from looking, and that she “probably” would have been able to see it if she had looked. While she contended she was “distracted” by looking in the direction that one employee had indicated to another, she acknowledged that nothing prevented her from looking down other than looking at the product in the warehouse. She agreed that she told the Smith employees after her fall that she should have been looking where she was walking. Moreover, Bramblett said in a recorded statement and at her deposition that there was “fault on both sides. ... I didn’t look close enough.”

“An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees. The basis of the owner’s liability is a superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. The hazard in this case is a ‘static’ condition which is not dangerous unless someone fails to observe it and steps into it. In cases involving static conditions, if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Also, we have held that where there is nothing to obstruct or interfere with the invitee’s ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved.” (Citations and punctuation omitted.) MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996).

“It has long been the position of this court that the mere existence or maintenance of a difference in floor levels or of steps in a business building does not constitute negligence.” (Citations and punctuation omitted.) Wilson v. Duncan, 211 Ga. App. 814 (440 SE2d 550) (1994); see also Steele v. Rosehaven Chapel, 223 Ga. App. 523, 524 (478 SE2d 596) (1996); Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 124 (444 SE2d 341) (1994). Bramblett does not assert that the area was improperly lit or that the step was obscured from view so that it could not be seen. In fact, like the plaintiff in Steele, she admitted that she was not looking down. Steele, supra at 524.

While Bramblett contends she was distracted by the conversation between the two Smith employees, merely looking at a sales clerk, particularly when the sales clerk was not conversing with Bramblett at the time, did not constitute a distraction that prevented her from seeing the step. Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 829 (3) (482 SE2d 720) (1997). Nor is looking at products in a store a distraction. Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 610 (423 SE2d 8) (1992). If any distraction existed, it was self-induced, and Bramblett cannot rely upon it. Id.; Coffey, supra.

Decided July 11, 1997.

Moore, Ingram, Johnson & Steele, John H. Moore, Robert E. Jones, for appellants.

Downey & Cleveland, George L. Welborn, Todd E. Hatcher, for appellee.

Bramblett later filed an affidavit in which she alleged that she “exercised reasonable care,” and “was distracted by the activities” of the Smith employees, but to the extent that these unexplained statements contradict her deposition testimony they must be construed against her on summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). The fact that a Smith employee fell on the step on a previous occasion while carrying boxes of tile does not demonstrate negligence. Wilson v. Duncan, supra at 815.

Because a step or change in level, without more, does not constitute negligence or a hazardous condition, Bramblett has failed to prove one essential element of her claim: the existence of a hazard. And because she testified that she was aware of the different levels in the warehouse, she is unable to prove a second essential element of her claim: Smith’s superior knowledge of the defect or hazard. Therefore, the trial court did not err in granting Smith’s motion for summary judgment on Bramblett’s negligence claim. Her husband’s loss of consortium claim is dependent on his wife’s right to recover, and his claim therefore must also fail. Sewell v. Dixie Region Sports Car &c., 215 Ga. App. 611, 613 (2) (451 SE2d 489) (1994).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur in the judgment only.

       While Robinson v. Kroger Co., 222 Ga. App. 711 (476 SE2d 29) (1996), cert. granted, 223 Ga. App. 910, is currently before the Supreme Court, until that appeal is resolved we will continue to apply the standard enunciated in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Coffey, supra at 827.


author: Birdsong, Presiding Judge.

text:
    A97A0902.
    WALKER v. ST. PAUL APARTMENTS, INC. et al.
    (489 SE2d 317)
   Birdsong, Presiding Judge.

The trial court granted summary judgment to the defendant apartment building and its management in this suit for damages arising out of a robbery, assault and threatened rape on plaintiff by an assailant who entered the high-rise apartment building on the night of October 2, 1992. The defendants employed full-time security guards but apparently did not provide the guard with a front door key, and the assailant apparently entered when the security guard left his post to check on a noise outside the building. In written notices and memoranda, the apartment manager assumed full responsibility for what happened to plaintiff, and defendants fired the security guard.

Evidence shows that in the previous year a tenant was snatched and her arm was broken at the apartment door. The same perpetrator did the same thing two weeks later. A tenant reported persons in the building trying to open her door, and another tenant complained that someone rattled her door as if to get in. Defendant Young, the manager, testified there had been a robbery in the lobby. A member of the apartment’s board of directors admitted the building was in a high crime area. She knew one tenant was assaulted on the north side of the apartments and was injured; after that incident the board member was quoted in the newspaper as saying residents had been plagued by purse snatchings. She also knew of a tenant being struck in the head at the building entrance and she knew of tenants being knocked to the ground in the parking lot.

A former police officer testified that an elderly woman tenant was attacked and raped in a third-floor apartment after the assailant entered the front door and rattled door knobs until he found one unlocked. This officer had responded to several robberies by snatching and other assaults on tenants.

Appellees’ security guard knew of crimes in the immediate vicinity, found the neighborhood deteriorating and the danger increasing, and informed defendants of his concerns before this attack on plaintiff. He raised concerns that he had no key to the front door and could not lock the door at night. He complained of not being allowed to carry a weapon, advised that the ground stair alarms were inaudible, requested more than one guard, and requested that the property be fenced to limit access. The tenants were generally afraid to go outside. The guard testified he was required to check outside when the motion detector was alerted but defendants contend he was never to leave the front desk.

A security expert testified that most of the residents of the building were elderly, which made the apartments a unique target for crime, and the general area was a high crime area. He also testified that the measures defendants took with regard to security were seriously deficient and would instill a false sense of security in the tenants.

Appellant enumerates seven errors below, all relating to factual conclusions implicit in the trial court’s ruling that defendants are not liable as a matter of law. Held:

There are issues of fact here for jury resolution as to whether the defendants should reasonably have foreseen a criminal attack against the plaintiff in her apartment, and whether the measures they took to prevent such attack amounted to the exercise of ordinary care in the circumstances. The general rule is that a landlord does not ensure a tenant’s safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal attacks. Sturbridge Partners v. Walker, 267 Ga. 785 (482 SE2d 339). “If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” (Emphasis supplied.) Lau’s Corp v. Haskins, 261 Ga. 491, 492 (405 SE2d 474). “Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activity.” (Emphasis supplied.) Sturbridge Partners, supra at 786.

For the purpose of determining foreseeability, evidence of other criminal attacks is relevant. In determining admissibility of such evidence, it is improper to distinguish between criminal attacks involving brutal physical assaults and those which did not, for this incorrectly suggests the landlord could lawfully safeguard its tenants only from persons who commit criminal acts without accompanying physical harm. Walker v. Sturbridge Partners, 221 Ga. App. 36 (470 SE2d 738), aff’d in Sturbridge Partners, 267 Ga. 785, supra. And, in determining whether previous criminal acts are substantially similar to the occurrence causing harm (which establishes the foreseeability of risk), the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or relation to the crime in question; but, while the prior criminal activity must be substantially similar to the crime in question, this does not mean it must be “identical,” for what is required is only that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Sturbridge Partners, supra.

The question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than for summary adjudication by the courts. Sturbridge Partners, supra at 786, quoting Lay v. Munford, 235 Ga. 340, 341 (219 SE2d 416). The record demonstrates that appellees had actual knowledge of the particular “dangerous condition” of serious crime in the area and on the premises and of the risks posed by “dangerous characters” (Lau’s Corp., supra) involved in “that type of activity.” Sturbridge Partners, supra at 786. The jury may find that the particular danger which resulted in the assault on plaintiff in this case was foreseeable under all the circumstances, and that appellees were negligent in failing to exercise ordinary care to guard against it.

Decided June 9, 1997

Reconsideration denied July 14, 1997

Bauer & Deitch, Gilbert H. Deitch, Randall, Nestor & Johnson, Dana P. Johnson, Katherine M. Kalish, for appellant.

Nelson, Mullins, Riley & Scarborough, Taylor T. Daly, for appellees.

On motion for summary judgment by the defendants, we are required to construe all evidence in favor of the respondent plaintiff. Lau’s Corp., supra. Upon so construing the evidence, we must conclude the evidence of prior criminal acts of robbery and assault on the premises gives rise to a triable issue of fact as to whether defendants failed their duty to exercise ordinary care to safeguard St. Paul Apartments’ tenants against foreseeable risks, and whether any such failure resulted in plaintiff’s assault.

Judgment reversed.

Ruffin and Eldridge, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A96A0743.
    INDUSTRIAL DISTRIBUTION GROUP, INC. v. WAITE.
    (489 SE2d 176)
    Decided July 14, 1997.

      Kilpatrick Stockton, Thomas C. Harney, Craig E. Bertschi, for appellant.
   McMurray, Presiding Judge.

The trial court’s award of attorney fees was affirmed by this Court in Indus. Distrib. Group v. Waite, 222 Ga. App. 233 (474 SE2d 28). However, on certiorari, the Supreme Court of Georgia reversed in Indus. Distrib. Group v. Waite, 268 Ga. 115 (485 SE2d 792). Consequently, our prior judgment is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The judgment of the trial court is reversed.

Judgment reversed.

Johnson and Ruffin, JJ., concur.

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jill A. Pryor, for appellee.


text:
    A97A0471.
    MATHERLY v. KINNEY et al.
    (489 SE2d 89)
   Smith, Judge.

Mr. and Mrs. Daniel T. Kinney sought adoption of Mrs. Kinney’s orphaned niece. Lois Matherly, the mother of the child’s deceased father, appeals the grant of that adoption. We affirm.

1. Matherly contends the trial court abused its discretion in granting the adoption. In an adoption case, “the trial judge sits as both judge and jury and is vested with a broad range of legal discretion. The purpose of the hearing upon the petition of adoption is to determine the disposition of that petition which is in the best interest of the child.” (Citations and punctuation omitted.) Barkley v. Painter, 157 Ga. App. 236, 237 (1) (276 SE2d 903) (1981). In this case, because no natural parent survives, the only considerations are whether the adopting parents are worthy and able to care for the child and whether the adoption is in the best interest of the child. Id.; OCGA § 19-8-18 (b).

Construed in favor of the trial court’s decision, the evidence showed that the child’s parents were divorced in 1992, with custody placed in the child’s mother, Deborah Crawford King. Evidence was presented that the child’s father, Stephen King, failed to pay child support for a substantial period of time and that Deborah was unable to locate him or enforce his obligations. In 1994, Deborah became ill with brain cancer, and the Kinneys took Deborah and her child into their home, moving to a larger house with a separate suite for Deborah and the child. In the summer of 1995, Deborah learned that her illness was terminal and, in contemplation of adoption, executed a surrender of parental rights in favor of the Kinneys. She also executed a will in which she expressed her wish that the Kinneys assume guardianship of the child. She died in October 1995.

The day after Deborah’s death, Stephen picked up the child at the Kinneys’ home and said “she was never coming back.” The Kinneys were unable to locate Stephen or the child. Shortly after taking the child from the Kinneys, Stephen consented to a temporary guardianship in Matherly, his mother, which was granted without a hearing by the clerk of the probate court. Matherly testified that Stephen gave the child to her because he was arrested for a drug offense and wanted her to take care of the child “until he saw what was going to happen to him and got his head on straight and got married.” Stephen told his mother he was going into drug rehabilitation, but he first traveled to Jamaica, where he was murdered.

Ms. Kinney sent a certified letter to Matherly asking to see the child, but Matherly responded that Ms. Kinney would not be allowed to see the child under any circumstances. Matherly acknowledged that she did not allow the child to see the Kinneys from the time Stephen took the child until the court ordered visitation in April 1996.

The guardian ad litem appointed by the court on behalf of the child expressed concern that the child had been removed without warning from the Kinneys’ home, where she had lived for a year with her dying mother, and that she had been denied all contact with them until the court intervened. The guardian was troubled at Matherly’s attempts to conceal the child’s past, for example, from the child’s new school and to create “this new life as though this other family didn’t exist.” She saw Matherly’s exclusive focus on the child as “unhealthy and unnatural” and “obsessive.” She was also concerned about the child’s exposure to Matherly’s other son, because of his violent behavior, drug use, and the presence of vicious dogs on his property. Another witness testified that Stephen and this son had been involved in an argument and “chain fight,” Stephen was injured, and the police were called.

In her brief, Matherly does not contend or point to any evidence that the Kinneys are unfit to adopt the child. Instead, she argues only that the trial court abused its discretion because its order will “exclude the child from one side of her extended family.” The Kinneys, however, stipulated that visitation with Matherly was appropriate, and the trial court provided for visitation in the adoption order. See generally OCGA § 19-8-15.

“In adoption proceedings where the trial judge sits as the trier of factual issues and considers the credibility of the witnesses, if there is any evidence to support the findings of the trial court this court must affirm. The evidence was sufficient to support the findings. On appeal the evidence must be construed to uphold the findings and judgment rather than to destroy them. We find the trial judge did not abuse his discretion.” (Citations omitted.) Peterson v. Spence, 146 Ga. App. 209 (245 SE2d 871) (1978); see also Lee v. Stringer, 212 Ga. App. 401, 403 (441 SE2d 861) (1994).

2. Matherly also complains that the trial court erred in dissolving the temporary guardianship of the child’s person granted to her by the clerk of the probate court before her son’s death. OCGA § 29-4-4.1 (a) (1). Matherly contends that this guardianship, although temporary in character and obtained without a hearing or a judge’s approval, continues to exist in perpetuity after the death of her son and prevents any adoption from taking place over her objection. The record in this case, however, reveals that Matherly has filed a new guardianship petition in the probate court, which would appear unnecessary if the temporary guardianship in fact remained in force after her son’s death.

But we do not reach this issue because the temporary guardianship of the child’s person was also an issue in a separate custody action between the same parties. The permanent custody order issued by the superior court, the final order in that action, also declared Matherly’s temporary guardianship over the child’s person dissolved, and Matherly’s application for discretionary review of the custody order was denied. Matherly v. Kinney, A97D0015 (decided September 11, 1996).

“Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.” (Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866-867 (2) (463 SE2d 5) (1995). Under the doctrine of collateral estoppel, the final judgment in the custody action expressly dissolving the temporary guardianship precludes relitigation of this issue by the same parties in the adoption proceeding.

3. Matherly asserts as error the trial court’s grant of the adoption without requiring live testimony from the child’s uncle, Daniel T. Kinney. The transcript shows that counsel for the Kinneys stated that both the Kinneys would testify, but rested without calling Mr. Kinney. As this Court noted in Cafagno v. Hagan, 213 Ga. App. 631, 633 (2) (445 SE2d 380) (1994), OCGA § 19-8-18 (a) (1) provides that the trial court “shall proceed to a full hearing on the petition and the examination of the parties at interest in chambers, under oath.” In Cafagno, it was not necessary to reach the issue of whether failure to call one of the parties at interest invalidated the adoption, because counsel for the petitioners stated in his place that the husband’s testimony would be identical to that of the wife. In the absence of objection, this Court accepted counsel’s statement as the equivalent of testimony. Id. at 633-634 (2). Now, however, we reach that issue.

There is no question that a “full hearing” on the petition took place. Matherly and the Kinneys appeared, represented by counsel, and presented the testimony of numerous witnesses in opposition to and in support of the adoption. Evidence was offered that Mr. Kinney is “capable of assuming responsibility for the care, supervision, training, and education of the child.” OCGA § 19-8-18 (b). Mr. Kinney verified under oath the petition for adoption in which the Kinneys stated that they were financially, physically, and mentally able to have permanent custody of the child. Testimony was presented by Ms. Kinney, a hospice volunteer, the guardian ad litem, and the court family investigator regarding Mr. Kinney’s willingness and ability to care for the child. As Cafagno notes, the actual presentation of live testimony from a petitioner is not necessary so long as an equivalent is provided. Id. at 634.

Decided July 14, 1997.

Rubin, Winter, Rapoport & Hall, Robert E. Hall, Jeffrey C. Ham-ling, for appellant.

Walbert & Mathis, David A. Webster, Lauren G. Alexander, Christopher J. McFadden, for appellees.

Moreover, Matherly raised no objection to the failure to place Mr. Kinney on the stand, either when appellees rested or at the close of evidence, when the error could have been remedied without requiring a new trial. A timely objection is necessary to preserve this issue for appeal. “It is necessary, in order to make the same a basis for appellate review that opposing counsel make proper objection or invoke some ruling of the court. A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.” (Citations and punctuation omitted:) West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997).

Matherly also has not demonstrated harmful error. “An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” (Citations and punctuation omitted.) City of College Park v. Pichon, 217 Ga. App. 53, 54 (1) (456 SE2d 686) (1995). She has not made a proffer of evidence, pointed to any support in the record, or even contended that Mr. Kinney is an unwilling or unsuitable adoptive parent; she acknowledges that his live testimony is a “technical requirement.”

Under these circumstances, given the submission of a verified petition and other evidence of Mr. Kinney’s fitness, Matherly’s failure to object, and Matherly’s failure to demonstrate any harm, we conclude that the error, if any, in failing to place Mr. Kinney on the stand was harmless.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.