text:
    A94A2353.
    TURNER v. THE STATE.
    (456 SE2d 241)
   Ruffin, Judge.

Sharon Turner was convicted of sale of cocaine and attempted sale of cocaine and appeals from the judgment of conviction and sentence.

The evidence showed that undercover narcotics investigators, Walker and Ponder, began an investigation after receiving information that an individual, later identified as Phyllis White, was selling cocaine. White is Sharon Turner’s sister. Investigator Walker contacted White and told her he wanted to buy a quantity of cocaine. Walker testified that when he met White at her apartment complex she was accompanied by another woman, later identified as Sharon Turner. White and Turner entered Walker’s car, and Walker and White then began negotiating the purchase of the cocaine. Walker gave White the money to purchase the cocaine, and while Turner remained in the car with Walker, White left to make the purchase. Walker testified that White was gone for a long time and that when he began to show concern and question Turner about where her sister was, Turner reassured him he would get “real good dope,” that they did not want to “rip [him] off . . . because they wanted [his] return business” and that she and her sister knew “how to do business.” When White returned to the car the sale was consummated.

The investigators subsequently arranged another purchase in order to apprehend White’s supplier. Walker testified that on this occasion, Turner met him at the door, told him that White would arrive shortly, and then walked with him to his car. Such was corroborated by Turner’s testimony. Turner also testified that Walker asked her if he could see the drugs before purchasing them, and she responded that he would have to discuss that with White. Walker testified that Turner remained in his car while they waited for White to appear and that Turner told him the same supplier was bringing the cocaine but that he would not be able to see the cocaine before purchasing it because the supplier wanted his money first. When the supplier arrived, he, White and Turner were arrested.

1. Turner contends there was insufficient evidence to support the convictions because mere presence at the scene and suspicion, no matter how grave, are not enough to warrant a conviction. The State attempted to prove that Turner aided and abetted the sale, primarily by remaining in the car with Walker as “human collateral” until White returned with the drugs. “The jury was instructed regarding parties to a crime, OCGA § 16-2-20, and we find the [foregoing] evidence presented at trial . . . sufficient to have authorized the jury to find [Turner] guilty of being a party to the sale of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Stevens v. State, 210 Ga. App. 355 (1) (436 SE2d 82) (1993). This enumeration is without merit.

2. Prior to Turner’s trial, White contacted Turner’s attorney and told him that Turner had no involvement in the incident and that White wanted to so testify at Turner’s trial. At trial, the court had a hearing outside the presence of the jury to review White’s proposed testimony, determine if it would be incriminating in her own pending trial, and learn whether White intended to invoke the Fifth Amendment and refuse to testify as advised by her attorney. During the hearing White testified that she brought Turner with her to the first meeting with Investigator Walker for “protection purposes,” that Turner was there only at White’s request, and that she did not tell Turner the nature of the meeting. White also testified that she had no agreement with Turner to sell the cocaine on either occasion and that Turner had nothing to do with the negotiations regarding price that took place in the car. White then invoked the Fifth Amendment and declined to answer any more questions which might incriminate her.

Due to White’s refusal to testify further, Turner’s attorney made a proffer as to the content of his conversations with White during the previous five months regarding Turner’s lack of involvement. The essence of the proffered testimony was that Turner simply had knowledge of the sale but did not participate in any respect. Turner’s attorney then simultaneously moved for a mistrial and to withdraw as counsel because he was now a potential witness for Turner by virtue of White’s refusal to testify. Both motions were denied.

Turner contends the trial court erred in denying the motions and in preventing White from testifying. She combined these enumerations for the purpose of argument, and they will likewise be treated together here as a challenge to the trial court’s denial of the motion for a mistrial and its ruling that Turner’s attorney could not testify as to his conversation with White because such testimony would be inadmissible hearsay. At the outset, we note that there is no evidence that the trial court prevented White from testifying. To the contrary, the record is abundantly clear that she invoked the Fifth Amendment and stated several times that she did not wish to incriminate herself.

Nor do we agree that the trial court erred with respect to its ruling on the proffered testimony. “The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” (Citations, punctuation and emphasis omitted.) Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (1) (173 SE2d 691) (1970); Higgs v. State, 256 Ga. 606, 607 (3) (351 SE2d 448) (1987). Assuming without deciding that White was “unavailable” by virtue of the fact that she could not be compelled to testify and incriminate herself, see Glisson v. State, 188 Ga. App. 152 (2) (372 SE2d 462) (1988), we turn to whether there was a circumstantial guarantee of trustworthiness of the evidence. See Wilbourne v. State, 214 Ga. App. 371 (2) (448 SE2d 37) (1994).

In Higgs, supra, the trial court admitted the testimony of a detective concerning a statement implicating the defendant which was given to him by the defendant’s wife. The wife was unavailable to testify by virtue of having invoked her marital privilege not to testify against her husband. We upheld the admission of the testimony, finding the statement to be trustworthy because, inter alia, the declarant consulted with her attorney before giving the statement; it was given within hours of the killing in question in the course of an official investigation; and the declarant never disavowed the statement. Id. at 608. In Adams v. State, 191 Ga. App. 16 (381 SE2d 69) (1989), an unavailable witness who had been arrested during the subject incident gave a statement to a detective which implicated the defendant. We similarly upheld the admission of the detective’s testimony about the statement, finding a circumstantial guarantee of trustworthiness in the statement because it was given to the detective immediately after the declarant was arrested, in the course of an official investigation, and the declarant never sought to recant the statement and the statement recounted facts later corroborated by other evidence. Id. at 17-18. Likewise, in Jackson v. State, 202 Ga. App. 582 (414 SE2d 905) (1992), we found that the statement of an unavailable witness had a “particularized guarantee of trustworthiness” because it was given shortly after the event in question occurred, in the course of an official investigation and because the declarant never attempted to retract the statement. Id. at 986.

Unlike the declarants in Higgs, Adams and Jackson, supra, however, White did not give her “statement” to Turner’s attorney immediately after she and Turner were arrested, but rather, waited until one week after Turner’s preliminary hearing on the matter. Nor was the statement given in the course of an official investigation. While we are not prepared to state that these factors are absolute prerequisites to evidence in such situations being deemed trustworthy, they are nonetheless significant indicia which would have made the statement so trustworthy and free from afterthought that cross-examination could be expected to add little to its reliability. See Barnett v. State, 211 Ga. App. 651, 652 (440 SE2d 247) (1994). The indicia of trustworthiness must be a substitute for the oath of the declarant and her cross-examination by the State. Higgs, supra. Although White testified under oath outside the presence of the jury to the same facts exculpating Turner from actual participation as she had previously related to Turner’s attorney, the State was unable to cross-examine her due to her invocation of the Fifth Amendment, and we do not find sufficient indicia of trustworthiness in the circumstances which we consider a substitute for that right.

Further, unlike the foregoing cases in which we upheld the admissibility of such testimony, the proffered testimony in the instant case sought not to implicate Turner, but to exculpate her. We have held that declarations to third persons regarding the defendant’s role in a crime are not admissible under an exception under the hearsay rule, even though the statement is against the declarant’s penal interest. Roberts v. State, 208 Ga. App. 64 (3) (430 SE2d 175) (1990). See also Timberlake v. State, 246 Ga. 488 (1) (271 SE2d 792) (1980).

3. Finally, Turner contends that the trial court erred in failing to give her requested charges on the legal principle of knowledge and that approval of a crime is insufficient to show the defendant is a party to the crime. We disagree. The record shows that the court’s charge included a charge on mere presence at the scene of a crime, mere association with others committing a crime, mere suspicion of guilt, and parties to a crime. These charges cover substantially the same legal principles as those requested by Turner. “It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.” (Citation and punctuation omitted.) Pierce v. State, 209 Ga. App. 366, 368 (3) (433 SE2d 641) (1993); Lawson v. State, 214 Ga. App. 464, 465 (448 SE2d 14) (1994). This enumeration is without merit.

Decided March 7, 1995

Reconsideration denied March 28, 1995

White & Bloodworth, Michael M. White, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2404.
    STUDDARD v. SATCHER, CHICK, KAPFER, INC.
    (456 SE2d 71)
   Pope, Presiding Judge.

Plaintiff, a former stockholder, employee, officer and director of defendant corporation, brought suit against defendant alleging breach of the parties’ Purchase and Sale Agreement (Agreement). Defendant answered and counterclaimed, contending that plaintiff breached the non-solicitation provision of the Agreement. Plaintiff filed a motion for partial summary judgment, seeking to have the liquidated damages provision of the Agreement declared unenforceable as a penalty. Defendant responded and moved for partial summary judgment on this issue (i.e., that the trial court uphold the enforceability of the disputed provision). On November 6, 1992, the trial court entered an order upholding the liquidated damages provision. On March 25, 1993, defendant filed a motion for summary judgment, arguing that the undisputed material facts showed plaintiff had breached the non-solicitation provision of the Agreement. The trial court granted this motion on May 25, 1993.

On July 28, 1993, the parties filed a document styled “Settlement Agreement” pertaining to Counts I and II of plaintiff’s complaint and amended complaint. On November 1, 1993, plaintiff filed a “Dismissal with Prejudice of Counts I and II of Plaintiff’s Amended and Substituted Complaint” (dismissal). This document was dated October 29, 1993, and provided, in part, that “[p]ursuant to the terms of the Settlement Agreement, this dismissal with prejudice constitutes a ‘Final Judgment’ in the above styled case for all purposes including OCGA § 5-6-30 et seq.” On November 3, 1993, plaintiff filed her original notice of appeal, wherein she recited that she was appealing “from the Final Judgment dated October 29, 1993.” On December 13, 1993, plaintiff filed an amended notice of appeal, stating that she was appealing “from the Dismissal with Prejudice of Counts I and II of Plaintiff’s Amended and Substituted Complaint (the ‘Dismissal’) dated October 29, 1993.”

Plaintiff subsequently filed her enumerations of error and brief to this court. In four separate enumerations and supporting argument in her brief, plaintiff challenges the trial court’s grant of partial summary judgment to defendant on the issue of the enforceability of the liquidated damages provision. No issues other than those pertaining to the enforcement of the liquidated damages provisions are raised.

It is incumbent upon us, even without prodding by the parties, to inquire into our jurisdiction over this appeal. “ ‘In every matter coming to this court we are required to examine the record to make certain we possess jurisdiction.’ [Cits.]” Whiddon v. Stargell, 192 Ga. App. 826, 827 (386 SE2d 884) (1989).

Direct appeals from orders granting partial or complete summary judgment may be taken either within 30 days of rendition of the judgment or after the rendition of the final judgment in the case. See Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425 (1) (333 SE2d 622) (1985); OCGA §§ 9-11-56 (h); 5-6-34 (d). Plaintiff did not seek to appeal the trial court’s grant of partial summary judgment to defendant within 30 days of rendition, but instead waited to challenge that order until she voluntarily dismissed portions of her complaint. The question, of course, is whether plaintiff’s voluntary dismissal with prejudice constitutes a final, appealable judgment for purposes of this appeal.

OCGA § 5-6-34 (a) provides “Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts,... (1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35 [providing for discretionary review of certain cases].” (Emphasis supplied.) Although plaintiff recited in her dismissal that it was intended to constitute a final judgment in this case, we are not bound by this denomination. On its face, plaintiff’s voluntary dismissal was neither a judgment (or other order) rendered by a court having jurisdiction over the matter nor a “final disposition” of the case, in that the dismissal expressly pertained only to the first two counts of plaintiff’s complaint. However, even assuming that this voluntary dismissal left nothing pending below, and should, therefore, be considered the “final disposition” in this case, see Marchman &c. v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983), this finding does not end our inquiry. A notice of appeal must be filed from an “appealable decision or judgment” (emphasis supplied) OCGA § 5-6-38, and must be brought by one with standing to pursue the appeal. In other words, in addition to finality, the order or judgment must be appealable by the party filing the notice of appeal. That is, in our opinion, the jurisdictional defect in this case.

Although the enumerations in this case pertain to the partial grant of summary judgment, the only document filed within 30 days of the filing of the notice of appeal was plaintiff’s voluntary dismissal with prejudice, and both the original and amended notice of appeal reference only that document as the order appealed from. In Mitchell Wyatt, 192 Ga. App. 127, 129 (1) (384 SE2d 227) (1989), this court dismissed an appeal from a voluntary dismissal without prejudice, reasoning that a party cannot appeal rulings it has procured. We think that analysis is applicable to the present case. “Here, there was no objection to the dismissal nor [apparently] were there any claims surviving for adjudication; therefore, plaintiff seeks to appeal from an action which has been terminated by her own hand. ‘It is axiomatic that at the appellate level “ ‘(o)ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ ” (Cit.)’ [Cit.]” Id. at 129. It is clear to us that plaintiff cannot use her own voluntary dismissal as the vehicle for appellate review of rulings entered by the trial court more than 30 days from the filing of the notice of appeal. “ ‘The fact that an appealable judgment is shown to exist, or that the antecedent ruling . . . would be reviewable when enumerated as error on the proper designation of an appealable judgment, does not cure the fatal defect in the notice of appeal arising from the failure to appeal from such a judgment. Accordingly, this court is without jurisdiction to entertain the appeal.’ (Emphasis supplied.) [Cits.] [We would further note that t]he case before us readily is distinguishable from those instances, where the faulty notice of appeal fails to specify definitely the judgment, and thus can be revitalized by the protective ambit of OCGA § 5-6-48 (f). Rather, the order in this case specifically designates that the appeal is to be taken from what happens to be a nonappealable order.” Whiddon v. Stargell, 192 Ga. App. at 828. Cf. Young Constr. v. Old Hickory House #3, 210 Ga. App. 559 (1) (436 SE2d 581) (1993) (where notice of appeal did not clearly reflect on its face that the appeal was being taken from a non-appealable order or judgment).

Decided March 13, 1995

Reconsideration denied March 28, 1995

Davis, Matthews & Quigley, Frank A. Devincent, J. Charles Olderman, for appellant.

Erck, Dever & Merlin, Theodore A. Erck, Jr., H. Michael Dever, Douglas M. Robinson, for appellee.

Appeal dismissed.

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

       This issue appears to pertain to Count III of plaintiff’s amended complaint and to Count I of defendant’s counterclaim.

       Although our Supreme Court has held that a voluntary dismissal with prejudice constitutes a judgment on the merits for purposes of res judicata, Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991), we have found no cases which clearly hold that a voluntary dismissal with prejudice constitutes a “final judgment” as that term is used in the appellate practice act.


text:
    A94A2691.
    BOLLEN v. HARKLEROAD & HERMANCE, P.C.
    (456 SE2d 73)
   Pope, Presiding Judge.

Plaintiff/appellee Harkleroad & Hermanee, P.C., an Atlanta law firm, brought suit against defendant/appellant, a former client of the firm, seeking the payment of attorney fees and expenses incurred in its representation of defendant. The case proceeded to trial, and following the presentation of evidence by both sides, the trial court directed a verdict for plaintiff and entered judgment in its favor in the sum of $22,409.28 for attorney fees and expenses, plus interest in the sum of $16,237.80. Defendant appeals.

1. Defendant contends the trial court erred in directing a verdict for plaintiff because conflicting evidence was presented as to the reasonableness of the legal fees charged by plaintiff.

Defendant first employed plaintiff in late 1987 to negotiate a severance package from his former employer, the Simmons Company. In 1989, defendant signed a retainer agreement (agreement) with the firm to represent him in pursuing a claim against his former employer for certain pension benefits (ERISA litigation). As to the payment of fees, the agreement provided that “[i]n consideration of these services, you will promptly pay to us those fees, and reimburse to us all out-of-pocket expenses, that are incurred on your behalf. Our rates are based on the experience and relative capabilities of attorneys and paralegals assigned to any given project and are based on hourly rates only in part. Other factors such as unusual time requirements and special expertise are also taken into account. Our hourly rates run from $75.00 per hour to $250.00 per hour.” The agreement then listed some of the attorneys who might work on defendant’s case, as well as their hourly rates as of the date of the agreement. The agreement also provided for the payment of interest on past due bills at the rate of one-and-one-half percent per month.

Don Harkleroad testified at trial that the rates charged in the agreement were reasonable for the Atlanta area. Harkleroad also established that defendant was only billed for services actually rendered, and that, in his opinion, the number of hours billed by the attorneys working on defendant’s case was reasonable. Harkleroad also testified that defendant’s bill had been “written down” or reduced on six occasions. Defendant did not present any evidence to dispute Harkleroad’s testimony that the services were rendered, or that the statements he received reflected the accurate number of hours worked on his case. However, defendant did present the testimony of two of the attorneys who worked on his case at the Harkleroad firm that some of the fees charged were unreasonable. Bill Cohen, a former partner at Harkleroad, testified that he was a specialist in the substantive area of law involved in defendant’s case, but that he was inexperienced in litigation and thus, he concluded after he left the firm that defendant should have been billed for his services at a lower hourly rate than he customarily charged for matters within his expertise. Cohen further testified that he did turn in all his time worked on the case, but that Don Harkleroad was in charge of billing for the firm and that he expected defendant to be billed only for the time that was reasonable. Cohen also testified that when defendant complained to him about the bills, he instructed him to take it up with Don Harkleroad, but that he never told Harkleroad that he felt defendant should not be billed for all his time, or that he should be billed at a lower hourly rate on certain matters. Cohen stated his opinion that defendant’s bill should be “written down” by $10,000, but he did admit on cross-examination that he could only estimate how much of his time was spent on matters not within his expertise.

Gallo, who was the partner who supervised the litigation aspects of defendant’s case for the firm, testified that defendant called him in February 1990 and complained to him about the billings. Gallo assured defendant he would review the statements and instructed defendant not to pay in the interim. Gallo further testified that he did not have an opportunity to review the statements until July, approximately one month after he left the firm, and that after reviewing the statements at that time he confirmed his initial impression that they were too high. Gallo testified that the problem with the billings, in his opinion, was that Cohen had spent a good deal of time on litigation matters, and that because of his inexperience as a litigator, those services should have been billed at the rate of a first year litigation associate instead of Cohen’s customary rate for areas within his expertise. Gallo testified that according to his calculations, defendant had been overbilled by approximately $14,400. Gallo also testified that he did not know what portion of the bills previously had been written down by Harkleroad.

“A plea of total or partial failure of consideration is a permissible defense to an action founded upon a contract. The burden of proving a prima facie case to recover (on the contract) is on the one claiming under the contract. The burden of sustaining the plea of total or partial failure of consideration is on the one asserting the defense. If [defendant] relies upon a total failure he must show that the [services] were wholly without value; if he relies upon a partial failure he must show the extent of the failure with such particularity and certainty that the jury or judge could, without guesswork or speculation, arrive at the amount. Where it appears from the evidence that the goods have some value, a plea of total failure of consideration has not been sustained, and absent proof of the extent of the failure, partial failure of consideration has not been sustained.” (Citations and punctuation omitted.) Greene v. Johnson, 170 Ga. App. 760, 761 (318 SE2d 205) (1984); Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 126 (1) (192 SE2d 513) (1972).

It is clear that defendant’s defense in this case is one of partial rather than total failure of consideration, in that he challenges only some of the fees as excessive. Moreover, for purposes of this appeal, we will assume without deciding that the testimony presented by defendant’s witnesses was sufficient to present a jury question concerning whether a portion of the fees charged was excessive and unreasonable. However, we agree with plaintiff that defendant failed to establish his defense of partial failure of consideration with the requisite specificity. “Equally clear is the insufficiency of evidence upon which a jury could accurately ascertain the extent or partial failure of consideration. [Cit.]” Pepsico Truck Rental v. Eastern Foods, 145 Ga. App. 410, 411 (243 SE2d 662) (1978). First, had this case gone to the jury, they would have been charged with the virtually impossible task of separating out services that may have involved Cohen’s area of expertise from those that did not. Although trial attorneys in general may be more familiar with certain types of pleadings, documents or proceedings, a knowledge of the substantive area of the law involved in the case is obviously necessary. A specific example of this problem is illustrated by Cohen’s testimony concerning a deposition taken in the case. Depositions are, of course, routinely taken by parties involved in litigation. However, Cohen testified that while the litigation associate who worked on defendant’s case actually “took” the deposition, he “coached” the associate in the substantive area of the law. Was this then an “ERISA” matter for which defendant was reasonably billed at Cohen’s customary rate or a litigation matter which, according to defendant, should have been billed at half that rate? Or should the associate’s rate instead of Cohen’s been reduced to reflect his unfamiliarity with the substantive area of the law involved in the case? This to us illustrates the false dichotomy between litigation and substantive law expertise that lies at the heart of defendant’s failure to prove his defense of partial failure of consideration in this case.

Moreover, even accepting defendant’s position that a jury could separate the purely litigation services from others performed by Cohen in this case, we find defendant still did not carry his burden of proof of establishing his defense at trial. As stated previously, defendant’s own witnesses did not agree about how much of the fees charged was excessive. Cohen testified defendant had been overbilled by approximately $10,000 and Gallo testified defendant had been overbilled by approximately $14,400. The witnesses also did not know if some of the amounts they contended were excessive were included within the amounts that previously had been written off by the plaintiff, and defendant did not present sufficient other evidence that would have enabled a factfinder to make that determination.

“ ‘(W)here the evidence authorizes the conclusion that the failure is not total but partial only, the burden devolves upon the defendant to prove the dollar amount of his damages or suffer judgment against him. (Cit.)’ [Cit.] ‘In a plethora of cases, this court has held “the question of damages cannot be left to speculation, conjecture, and guesswork.” (Cit.) The jury must be able to calculate the amount of loss from the data furnished, and will not be placed in a position where an allowance of the loss is based on guesswork. (Cit.)’ [Cit.] [Defendant’s] failure to prove the partial failure of consideration with the particularity and certainty required entitled [plaintiff] to a directed verdict.” Greene, 170 Ga. App. at 761-762. Cf. Beatty v. LaSonde, 147 Ga. App. 138 (1) (248 SE2d 202) (1978).

2. Defendant also contends the fee agreement is illegal and unenforceable if it is construed to allow the collection of an excessive and unreasonable fee. However, because of our holding in Division 1, it is unnecessary for us to consider this argument; as we stated in that division, even accepting defendant’s proposition that some of the fees were unreasonable, the direction of the verdict for plaintiff was nevertheless proper in this case because of his failure to prove his defense with the requisite specificity. The problem in this case is one of failr ure of proof, not illegality of the contract sued upon. Moreover, this court has previously held that a plea of partial failure of consideration is permissible as a defense to a suit on a fee contract. Beatty v. LaSonde, 147 Ga. App. at 138.

3. It likewise follows from our holding in Division 1 that it is unnecessary for us to consider defendant’s third enumeration of error, pertaining to the cross-examination of Harkleroad about certain provisions of the Code of Professional Responsibility.

4. Defendant would undoubtably and correctly contend that it is necessary, however, for us to address his fourth enumeration challenging the trial court’s judgment to the extent it awarded plaintiff interest in the amount of $16,237.80. Defendant acknowledges that “[ijnterest at greater than the legal rate can be charged on commercial accounts either pursuant to OCGA § 7-4-2 (a) (1) (A) or OCGA § 7-4-16,” but argues that plaintiff was not entitled to recover interest at the rate stated in the agreement because the evidence presented at trial showed that on one or two occasions the interest was calculated in such a manner as to result in violation of the usury laws of this state. However, “[a] mistake in calculation or by inadvertence, not shown to be part of a usurious design or otherwise intentional, does not make a loan usurious. [Cits.]” Sumner v. Adel Banking Co., 244 Ga. 73, 74-75 (2) (a) (259 SE2d 32) (1979). See also Reese v. Robins Fed. Credit Union, 150 Ga. App. 1, 3 (2) (256 SE2d 604) (1979). The trial court did not err in awarding interest to plaintiff in the amount of $16,237.80. See Lundy v. Low, 200 Ga. App. 332, 334-335 (408 SE2d 144) (1991).

Decided March 15, 1995

Reconsideration denied March 28, 1995

McAlpin & Henson, Kirk M. McAlpin, Jr., for appellant.

Schwall & Schwall, Emory A. Schwall, for appellee.

5. In his final enumeration, defendant assigns error to the trial court’s refusal to admit a letter written by the litigation associate who worked on his case, who was deceased at the time of trial. Defendant urges that this letter was relevant and should have been admitted to establish his state of mind in not paying the bill. However, defendant’s state of mind in not paying his bills was not relevant, see Division 4, and furthermore, even if it was relevant to any issue in this case, other evidence was admitted concerning why defendant did not pay his bill. We find no error in the trial court’s refusal to admit the letter under the facts of this case.

Judgment affirmed.

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

       Both attorneys testifying for defendant at trial worked for the same law firm, and they continued to represent defendant in the ERISA litigation after they left Harkleroad & Hermanee, P.C.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A0273.
    ROBINSON v. MEDICAL CENTER OF CENTRAL GEORGIA.
    (456 SE2d 254)
   Blackburn, Judge.

Appellant/plaintiff, Milton Robinson, Sr., brought the underlying action against the appellee/defendant Medical Center of Central Georgia (Central Georgia), seeking damages for injuries he allegedly sustained while a patient at Central Georgia. Robinson alleged that “after an intake process [h]e was directed to a room and put in bed; that as [h]e lay in his bed, he began to writhe and twist”; that, as a result, he fell from his hospital bed and hit the floor injuring himself; that “the bed rail on his bed was down and not secured . . . [and that Central Georgia’s] agents and employees failed to exercise reasonable and ordinary care in their attendance and supervision of [him] and said failure solely, foreseeably and proximately caused serious bodily injury to [him].”

Central Georgia answered denying the material allegations of the complaint and defending on the ground that Robinson had not filed an expert’s affidavit in support of his claim. Contemporaneously, Central Georgia moved to dismiss or in the alternative for summary judgment for Robinson’s failure to file an expert’s affidavit with his complaint as required by OCGA § 9-11-9.1. In support of its motion, Central Georgia provided the affidavit of a senior registered nurse and employee. The affidavit described the hospital’s fall risk protocol, a protocol allowing nurses to determine when side rails should be employed to physically restrain hospital patients as a matter of nursing judgment — the latter predicated on an overall assessment of the patient, including such factors as the patient’s combativeness, degree of disorientation or confusion, risk of falling out of bed for other reasons, treatment needs and hospital staffing levels. Robinson responded by brief to the motion for summary judgment asserting that no expert’s affidavit was required in that his claim was for ordinary negligence alone.

The trial court granted Central Georgia’s OCGA § 9-11-9.1 motion to dismiss and motion for summary judgment and dismissed the complaint. Robinson appeals the court’s ruling.

Robinson contends that the trial court erred by granting Central Georgia’s motion for summary judgment for his failure to attach an expert’s affidavit to his complaint pursuant to OCGA § 9-11-9.1.

OCGA § 9-11-9.1 (a) pertinently provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert.” (Emphasis supplied.) An expert’s affidavit is not necessary where professional skill and judgment are not involved. See Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992). However, such an affidavit is required in an action against a hospital where, as here, liability is predicated on the doctrine of respondeat superior and “the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals’ under OCGA § 14-7-2. . . .” Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 65 (424 SE2d 632) (1992). Whether the side rails should have been in the “up” position or the “down” position was a professional question as it was in Smith v. North Fulton Med. Center, 200 Ga. App. 464, 465-466 (1) (408 SE2d 468) (1991). While we allowed the plaintiff’s ordinary negligence claim to proceed in North Fulton, supra, we did so based on the fact that the hospital’s staff had failed to raise the side rails in accordance with the “written nursing assessment” which had previously been made and provided that the rails should be raised. It was the failure to carry out the nurse’s instruction that constituted ordinary negligence. The negligent conduct therein did not involve the exercise of professional judgment, but rather the execution of issued instructions, which execution required no professional skills.

At summary judgment, a movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, upon viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). Inasmuch as Robinson’s claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, we conclude that his complaint sounded in professional malpractice alone. Accordingly, the trial court did not err in granting summary judgment to Central Georgia based upon Robinson’s failure to attach an expert’s affidavit to his complaint pursuant to OCGA § 9-11-9.1 (a).

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., Pope, P. J., and Ruffin, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the trial court erred in dismissing Robinson’s complaint for failure to file an expert affidavit (pursuant to OCGA § 9-11-9.1) and granting summary judgment with regard to Robinson’s claim of ordinary negligence.

In my view, there is critical proof that at least one Central Georgia employee (a nurse) was aware that Robinson is “legally blind” and that Robinson was suffering from severe abdominal pain (presumably so severe that it required hospitalization) at the time he was left unattended in an unsecured hospital bed. I believe that this proof raises genuine issues of material fact as to whether Central Georgia’s employees exercised ordinary care (not professional malpractice) in “watching over” Robinson at the time of the patient’s fall. Further, the circumstances of the case sub judice present issues which are indistinguishable from the issues resolved in this court’s whole court decision in Smith v. North Fulton Med. Center, 200 Ga. App. 464, 465 (1) (408 SE2d 468). Just as in North Fulton, I believe the allegations of Robinson’s complaint and the evidence he offered on summary judgment exclude the necessity of expert testimony to resolve the issue of whether Central Georgia breached its duty to exercise ordinary care in protecting Robinson from injury which was reasonably foreseeable because of the patient’s impaired physical condition. In fact, under indistinguishable circumstances, this court sustained a verdict in favor of an elderly patient in Hosp. Auth. of Hall County v. Shubert, 96 Ga. App. 222, 225 (2) (99 SE2d 708), who fell out of bed and charged the hospital with ordinary negligence (not professional malpractice) for failing to place sideboards on her bed or otherwise keep watch over her so as to prevent the foreseeable result of her infirm condition, i.e., thrashing out of her hospital bed.

Decided March 9, 1995

Reconsideration denied March 28, 1995

J. O’Quinn Lindsey, for appellant.

Sell & Melton, Joseph W. Popper, Jr., Michelle W, Johnson, for appellee.

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


text:
    A94A2061.
    WALTON v. THE STATE.
    (456 SE2d 289)
   Pope, Presiding Judge.

This is the third appearance of this case before this court. As is pertinent to this appeal, defendant was charged with driving under the influence after being stopped at a road/license check. He was tried and convicted following a bench trial in the Probate Court of Upson County, and his conviction was affirmed by the superior court. Defendant appeals.

1. After a review of the record, we find that the evidence was sufficient to authorize defendant’s conviction, beyond a reasonable doubt, of driving under the influence of alcohol to the extent that it was less safe for him to drive. Anthony v. State, 211 Ga. App. 622, 623 (1) (441 SE2d 70) (1993); Rylee v. State, 210 Ga. App. 314 (436 SE2d 52) (1993). It follows that, contrary to defendant’s first enumeration of error, the probate court did not err in denying defendant’s motion for directed verdict.

2. Defendant next contends that the results of the intoximeter test should have been excluded because defendant was denied his right to an independent test as provided by OCGA § 40-6-392 (a) (3). The arresting officer testified that the defendant waived his right to an independent test, although on cross-examination the witness also indicated that at some point defendant did request a blood test. The State also introduced the implied consent warning form, wherein defendant indicated his waiver of additional testing. Because the record supports the conclusion that the defendant waived his right to additional testing, the denial of defendant’s motion to exclude the intoximeter results is not clearly erroneous and therefore must be affirmed. See Morgan v. State, 212 Ga. App. 394, 397 (2) (442 SE2d 257) (1994); Pruitt v. State, 203 Ga. App. 125 (1, 2) (416 SE2d 524) (1992).

Defendant’s remaining argument in support of this enumeration was not raised at trial and thus will not be addressed here. Morgan, 212 Ga. App. at 395 (1); Smith v. State, 204 Ga. App. 576, 577 (2a) (420 SE2d 29) (1992).

3. Defendant next contends that the probate court erred in allowing the intoximeter operator to testify since his name was not provided to defendant in response to his request under OCGA § 17-7-110. The record shows that the State’s witness list contained the name of the arresting officer and a Robert Cochran. The intoximeter operator’s name is Ronnie Cochran. The intoximeter report listed the operator as R. Cochran. Defense counsel stated that he had questioned Upson County Sheriff Department personnel in attempts to find a Robert Cochran. However, defense counsel did not reveal this information until mid-way through the trial, even though he received the witness list at the beginning of trial and made no objection to it at that time. Moreover, when the State indicated that the proper procedure would be to provide the defense with an opportunity to interview the witness prior to his testifying, defense counsel responded, “[D]on’t need to question him.” “ ‘The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. . . . (T)he proper remedy when a witness is called whose name was not on the list is to request a continuance, not the exclusion of the witness’ testimony.’ (Citations and punctuation omitted.) Grace v. State, 210 Ga. App. 718, 721 (5) (437 SE2d 485) (1993).” Dixon v. State, 214 Ga. App. 374, 377 (4) (448 SE2d 40) (1994) . The admission of the testimony was not error under the circumstances of this case.

4. Contrary to defendant’s fourth enumeration of error, the record indicates that the original implied consent warning form, and not a photocopy, was admitted into evidence at trial.

Decided March 28, 1995.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

5. Lastly, defendant contends that the probate court failed to exercise discretion in imposing sentence. We agree with defendant that the record supports this conclusion. “[A] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992). See also Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993). In his original brief to this court defendant did not request that we vacate the sentence imposed by the probate court, or that we remand the case so that a new sentence may be imposed, but instead urges that “[t]he problem in this case goes beyond lack of discretion during the sentencing,” to the point of predetermining guilt. The record does not support this contention, or otherwise show that defendant’s conviction ought to be overturned because of any error occurring during the sentencing phase. However, because the record shows the judge used a set policy in sentencing the defendant, the sentence must be vacated hnd the case remanded to the superior court with direction that the case be returned to the probate court for resentencing with direction that the new sentence not exceed the sentence previously imposed.

Judgment of conviction affirmed, sentence vacated and case remanded with direction.

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

       For a review of these prior appellate appearances, see Walton v. State, 207 Ga. App. 787 (429 SE2d 158) (1993).


author: Beasley, Chief Judge.

text:
    A95A0146.
    In the Interest of A. Q. W., a child.
    (456 SE2d 284)
   Beasley, Chief Judge.

The natural mother appeals an order of the juvenile court terminating her parental rights to her son, A. Q. W., who was first placed in the temporary custody of the Georgia Department of Human Resources (the Department) when he was nine months old and who is now nearly seven years of age. Appellant contends that there was not clear and convincing evidence of her misconduct or inability to parent, as is required by OCGA § 15-11-81, and that the termination was not based upon present circumstances.

“ ‘The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. (Cit.) Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs; conviction of a felony and imprisonment which has a demonstrable negative effect on the quality of the parent-child relation; (and) physical, mental or emotional neglect of the child. OCGA § 15-11-81 (b) (4) (B). . . .

“ ‘The standard of appellate review where a parent’s rights to his child have been severed is “ ‘whether after reviewing the evidence in the light most favorable to the appellee [Department], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” [Cit.]’ [Cit.] ‘The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.’ [Cit.]” In the Interest of B. P., 207 Ga. App. 242, 243-244 (427 SE2d 593) (1993).

The evidence viewed in favor of the trial court’s judgment showed the following. In March 1989, when A. Q. W. was nine months old, the Department was notified that the child was at the hospital suffering from two skull fractures. At the time of injury A. Q. W., who was appellant’s third child, was living with the appellant and her boyfriend, who was not A. Q. W.’s biological father. The whereabouts of the putative father were unknown. Her oldest son, C. W., had been living with appellant’s mother since he was about three years old and believed that appellant was his sister. Appellant had placed her middle son for adoption with a couple that her mother knew, and appellant had no contact with him. Appellant claimed no knowledge of how A. Q. W. received the serious injuries. The juvenile court entered an emergency order on March 3, 1989, finding A. Q. W. to be deprived and placing his temporary custody with the Department. On March 6, the Department and appellant entered into a consent order in which A. Q. W.’s temporary legal custody remained with the Department but he physically was placed back in appellant’s home. Appellant agreed to cooperate in protective services’ supervision of her home, to provide medical attention to the child as directed by the Department, to attend parenting skills classes as directed, and to forbid her boyfriend to be alone with the child unless approved by the Department. On March 14, the parties executed a consent order which continued in effect the March 6 order except that the child’s temporary custody with the Department was terminated.

Approximately three-and-a-half months later, A. Q. W. was hospitalized with severe vomiting. Tests revealed that he had three skull fractures, the two previous ones that had healed as well as an additional fracture. It was also determined that the child had an abdominal obstruction for which he had to undergo surgery. It was the surgeon’s opinion that the obstruction could have been caused only by a severe blow to the child’s abdomen. On June 30, the juvenile court entered a second emergency order finding A. Q. W. to be deprived as defined in OCGA § 15-11-2 (8) and recommending that his temporary custody be placed with the Department until further order of the court.

On July 31, a 30-day case plan was prepared. It required appellant to visit A. Q. W., pay $30 per month in child support, undergo a psychological evaluation, complete parenting skills classes, and cooperate with the police investigation of A. Q. W.’s injuries. Appellant was present for the development of the case plan and her input was requested but she was uncooperative, belligerent and refused to sign the plan. She did have the psychological evaluation and complete a parenting skills class but she did not pay the child support and exercised only about half of her opportunities for visitation.

Appellant was questioned about A. Q. W.’s injuries and she failed to offer an appropriate explanation about how they were received. Both the police and the Department suspected that the mother’s boyfriend had inflicted the injuries but it was never confirmed. It was never proven whether the boyfriend inflicted the harm and appellant was covering up for him, whether appellant herself had intentionally hurt the child, or whether the injuries were the product of severe neglect on the part of one or both of them.

On August 31, the juvenile court made findings that the child was deprived as defined in OCGA § 15-11-2 (8); appellant was incapable of protecting the child from violence; appellant was unfit; continuation in the home would be contrary to the child’s welfare; reasonable efforts had been made to prevent or eliminate the need for removal and to make it possible for the child to return to the child’s home. It recommended that the child’s best interest would be served by continuing his temporary custody with the Department. The court confirmed and adopted these in an order on September 6.

A case review was done on December 7. The goals were for appellant to continue to cooperate with the police investigation which was still pending; appellant and her fiancé continue in therapy; $30 per month in child support be paid; the flaneé would have a psychological examination; and appellant would visit with A. Q. W. twice a month.

The police investigation was never completed because appellant and her boyfriend refused to take polygraphs or otherwise cooperate with the authorities. Child support was not paid. The two continued in therapy for some months and then stopped. The boyfriend did not have the psychological evaluation. In March 1990, appellant was notified that her visitation with A. Q. W. was being reduced to once a month because she was not complying with the case review objectives.

Another case panel review was conducted the following June 20 (1990) and, because it was determined that appellant was not actively working towards having A. Q. W. returned to her home, the Department’s goal changed from reunification to termination of parental rights.

In October, appellant petitioned for return of custody. The Department’s goal returned to family reunification at a case review conducted in December because it believed that appellant had parted company with her boyfriend, who was still suspected as A. Q. W.’s abuser. The hearing on appellant’s petition was combined with an extension of custody hearing seven months later in June 1991. On July 2, the juvenile court entered an order finding that the conditions in the mother’s home were unchanged from the time A. Q. W. initially received injuries; that the child would be at risk if he were then returned to the home; that appellant was unfit; and that the child’s best interest was served by continuing his temporary custody with the Department.

Another judicial review occurred in December 1991. The accompanying case plan, which was agreed to and signed by appellant, was still aimed at reunification and stated as appellant’s goals that she would continue to live independently of her boyfriend; have her mental health care transferred to an area nearer to her residence and receive counseling until no longer recommended by the therapist; seek stable employment and contribute to A. Q. W.’s support; and exercise regular visitation with the child. If appellant complied with the requirements, the goal was to return A. Q. W. to her care in three months. Appellant failed to comply with the terms of the agreement including separating herself from the boyfriend.

Beginning with a subsequent review the same month, the Department’s goal reverted to termination of parental rights and permanency for A. Q. W. The Department filed its petition to terminate both parents’ rights in June 1993.

By the time of the termination hearing in January 1994, A. Q. W. had bonded with the foster family with whom he had resided for the preceding three years and who had expressed an interest in adopting him. The Department had been unable to find a suitable relative placement for A. Q. W.

At the termination hearing, a psychologist who evaluated appellant described her as having “something like a passive aggressive personality disorder” and as a person that did not “deal well with anger.” The doctor expressed concern that appellant “would lose interest” in A. Q. W. because of appellant’s own needs and felt it would be difficult to say that appellant would be able to fend for a child or to react appropriately in a parenting situation. The doctor also felt it unlikely that appellant would seek and complete therapy.

Following the hearing, the juvenile court terminated the parental rights of A. Q. W.’s putative father. In the order, the court expressly found that appellant had without justifiable cause failed for a period of over four-and-one-half years to comply completely with the court’s orders, reviews, and case plans designed to reunite her with A. Q. W. It concluded, however, that even though the Department had shown by a preponderance of the evidence that termination of appellant’s parental rights would be appropriate, the clear and convincing standard had not been met. The court entered a revised case plan requiring appellant to bring current, within thirty days, her outstanding child support obligations; to make an appropriate selection of a counselor within ten days; to exercise the permitted visitation; and to obtain suitable and appropriate stable housing within thirty days. (At the time, appellant was living in a home with her grandmother and an uncle who had abused her as a child.) The order stated, “[t]he Court wishes to make it very clear to the mother, . . . Not completing any portion of the plan, including missing any counseling sessions or missing any child support payments will constitute a substantial deviance from the plan and from the mother’s avowed and expressed intent to be reunified with her child under any circumstances.”

At the subsequent combined termination hearing and hearing on appellant’s motion for overnight and unsupervised visitation, there was evidence that A. Q. W. was getting more negative about appellant with increased visitation with her; appellant ended early all but one of her visits with the child; and appellant often made telephone calls during her visits with the child and took him with her outside to smoke. On one occasion when appellant took the child outdoors to smoke, the caseworker found A. Q. W. hanging over a second-story railing. Although the visits were designed to have appellant and A. Q. W. interact one-on-one, appellant brought her mother and son C. W. with her on one occasion; and when appellant was told the others could not attend the visit, appellant left, stating in front of A. Q. W., “I don’t care what you do with [A. Q. W.], I’m leaving. They’re going to hear from my attorney.”

Decided March 28, 1995.

Loretta J. Mirándola, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Kevin M. O’Connor, Assistant Attorneys General, Kathryn C. Reeder, Deborah A. Stone, for appellee.

Appellant failed to fully comply with the revised case plan prescribed after the initial termination hearing. She did not attend all of the required counseling, missed several visits with A. Q. W., and failed to make the required child support payments. The court cited such deviations from its requirements in ultimately terminating appellant’s parental rights, but it focused on its concern about the lack of a parental bond between appellant and A. Q. W. It concluded that the overwhelming evidence was that such a bond did not exist and had passed the point of being resuscitated.

The court did not err. Although appellant was given innumerable opportunities to place herself in a position to effectively parent A. Q. W., she failed to do so. Her sporadic attempts can best be characterized as too little and too late.

We are not persuaded by appellant’s complaint that the termination of her rights was not based upon present circumstances. First, her past behavior had to be considered in conjunction with the present because it demonstrated a continuing pattern of conduct with regard to her inadequate parenting of the child. Second, her current circumstances were fully assessed by the court and found lacking. Any rational trier of fact would have to conclude that there is clear and convincing evidence of appellant’s unfitness and inability to parent A. Q. W.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Smith, Judge.

text:
    A95A0174.
    KENNEDY v. THE STATE.
    (456 SE2d 288)
   Smith, Judge.

Mark Kennedy appeals his conviction on charges of aggravated assault and possession of a weapon by an inmate.

1. Kennedy first contends the trial court abused its discretion by denying trial counsel’s motion for continuance on grounds that he had an inadequate opportunity to prepare his defense.

“ ‘A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. OCGA § 17-8-22.’ [Cit.]” Gignilliat v. State, 196 Ga. App. 773 (2) (397 SE2d 52) (1990). “There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. . . . Broad discretion must be granted trial courts on matters of continuances and only unreasoning and arbitrary insistence upon expeditiousness in the face of justifiable request for delay would violate the right to assistance of counsel.” (Citations and punctuation omitted.) Bennett v. State, 186 Ga. App. 832-833 (2) (368 SE2d 789) (1988). See also OCGA § 17-8-20.

While the record reflects the court’s denial of trial counsel’s motion for continuance, it does not include counsel’s argument in support of his request. Kennedy was indicted on August 1,1994. Pointing out that trial counsel was appointed on August 9 and a jury trial began on August 15, 1994, appellate counsel contends the trial court abused its discretion in denying a continuance under these circumstances, because trial counsel had only three working days to prepare for trial. Appellate counsel, who happened to be in court when this case was called for trial, attempts to argue that trial counsel was misled by the court as to the completeness of the record on this issue. However, we cannot consider facts related in the briefs that are not a part of the record, and in the absence of an affirmative showing of error on the record, the trial court’s ruling will not be disturbed. See Wheeless v. State, 135 Ga. App. 406 (7) (218 SE2d 88) (1975). Accordingly, we find no error in the denial of trial counsel’s motion for continuance.

2. Kennedy argues for the first time on appeal that he was denied effective assistance of counsel. “In order to preserve the issue of trial counsel’s effectiveness for appellate review, ‘a claim of ineffective assistance of counsel (must) be determined by means of an evidentiary hearing at the earliest practicable moment.’ [Cit.]” Duitsman v. State, 212 Ga. App. 348, 350 (4) (441 SE2d 888) (1994). “Where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. [Cits.]” Turner v. State, 210 Ga. App. 328, 329-330 (3) (436 SE2d 66) (1993). New counsel was appointed for Kennedy within 30 days of entry of the judgment of conviction, yet counsel chose to file an immediate appeal rather than a motion for new trial. Nevertheless, under our prior decisions, counsel’s election does not effect a procedural bar as to the asserted ineffective assistance claim, and we therefore remand the case for an evidentiary hearing on that issue. King v. State, 208 Ga. App. 77 (2) (430 SE2d 640) (1993).

Decided March 28, 1995.

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Case remanded with direction.

Birdsong, P. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A94A2012.
    PLUNKETT v. GINSBURG.
    (456 SE2d 595)
   Andrews, Judge.

We granted interlocutory appeal to consider the trial court’s grant of a motion for protective order. The order prohibited the discovery of the records of a psychiatrist treating plaintiff Ginsburg, who had sued Plunkett as a result of an automobile accident.

The accident occurred on June 13, 1991 and Ginsburg, an optometrist, has not worked again since. Her complaint alleged that she had suffered “severe and great pain of body and mind.” During discovery, Dr. Rascoe, the psychiatrist, was identified as one “who rendered treatment to her following the automobile accident.” Ginsburg had also been treated by Dr. Rascoe before the accident in connection with “anxiety related problems in connection with her pregnancy.” Ginsburg’s answers to interrogatories stated that she “continued to be seen by Dr. Rascoe for anxiety resulting from her injuries in this automobile accident and depression following same.”

Ginsburg underwent an independent orthopedic examination of her cervical condition. The orthopedist reported that she was suffering “major psychosocial dysfunction” and that “the magnitude of her subjective complaints [is] not substantiated by objective clinical findings.”

Below, Ginsburg entered into the record a sworn stipulation that she “does not contend that her inability to engage in her employment is the result of a psychiatric condition.” Ginsburg, however, reserves the right to contend that the “trauma of this incident has caused her pain and suffering and possibly some depression . . .” as well as “mental pain and suffering that was directly caused by the physical trauma she suffered. . . .” While this is not stipulated by both parties, it is an admission in judicio as to Ginsburg. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 518 (1) (434 SE2d 63) (1993); see. Ga. Farm Bureau Mut. Ins. Co. v. Hand, 211 Ga. App. 703, 705 (440 SE2d 92) (1994).

The trial court conducted an in camera review of Dr. Rascoe’s records and concluded that “the information contained in Dr. Rascoe’s records is privileged, pursuant to OCGA § 24-9-21 (5).” The court further concluded that the fact of employment of and treatment by a psychiatrist, including dates of treatment, is not privileged. The records reviewed by that court have been made part of the record here by a supplemental record. We have also reviewed them and agree that to the extent the documents reflect “communications” between psychiatrist and patient, they are privileged.

“The Georgia Civil Practice Act provides for the discovery of ‘any matter, not privileged, which is relevant to the subject matter involved in the pending action.’ Although there is no privilege for general physician-patient communications in Georgia, two statutes extend a privilege against disclosure to the confidential communications between a psychiatrist or licensed psychologist and patient. See OCGA §§ 24-9-21 (5); 43-39-16; Nat. Stop Smoking Clinic-Atlanta v. Dean, 190 Ga. App. 289 (378 SE2d 901) (1989).” Wiles v. Wiles, 264 Ga. 594, 595 (1) (448 SE2d 681) (1994).

While psychiatric records are not absolutely privileged, “communications between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery. [Cits.]” (Emphasis in original.) Dynin v. Hall, 207 Ga. App. 337, 338 (1) (428 SE2d 89) (1993). The privilege may be waived by the affirmative act of calling one’s psychiatrist/psychologist as a witness in one’s behalf and asking about mental status. Fields v. State, 221 Ga. 307, 308 (2) (144 SE2d 339) (1965). The present situation, however, does not fall within this category. In fact, Ginsburg has stipulated that she is not seeking recovery of any expenses incurred in seeing Dr. Rascoe.

The privilege does not extend, however, to any communications made to nurses or attendants, unless they were acting as agents of the attending psychiatrist, nor, as noted by the trial court, does it preclude discovery of the fact and dates of treatment. Annandale at Suwanee v. Weatherly, 194 Ga. App. 803, 804 (392 SE2d 27) (1990).

“[I]n any action, the actual communications between a psychiatrist and a patient would be relevant to the patient’s mental state and would constitute the most objective evidence thereof. Nevertheless, the legislature has clearly expressed its intent that, as a matter of public policy, psychiatrist-patient communications are to be privileged and are to remain privileged even though the patient’s ‘care and treatment or the nature and extent of his injuries (have been put) at issue in any civil or criminal proceeding.’ OCGA § 24-9-40. To hold that communications between the [patient] and her psychiatrist have lost their privileged character and are discoverable merely because they are the most objective evidence of the relevant issue of the decedent’s mental state would contravene the legislature’s express intent.” (Emphasis in original.) Dynin, supra at 339 (4). As noted in Bobo v. State, 256 Ga. 357, 358 (2) (349 SE2d 690) (1986), OCGA § 24-9-40, which waives the privilege of confidentiality of medical records to the extent that medical care and treatment are placed at issue, specifically exempts psychiatrists from its coverage. “The psychiatrist-patient privilege is not waived when a party who claims it is seeking to recover damages for injuries of a mental and emotional nature. Wilson v. Bonner, 166 Ga. App. 9, 16 (303 SE2d 134) (1983).” Bobo, supra.

In Aetna Cas. &c. Co. v. Ridgeview Institute, 194 Ga. App. 805 (392 SE2d 286) (1990), a physician injured in an automobile accident sued his uninsured motorist carrier for his injuries. At the time of the injury, the doctor was undergoing an alcoholism treatment program at Ridgeview. Before the accident, he had practiced family medicine. He contended that, due to his injuries, this practice had become too demanding and he was forced to switch to the less physically demanding specialty of psychiatry. In deposition, however, the doctor admitted that his treatment at Ridgeview had influenced his decision. Aetna sought Ridgeview’s records to discover whether his decision predated the accident. This court held that an in camera review was required by the trial court to determine if there was non-privileged information in the records which would be discoverable, even though any communications between psychiatrist and patient would not be discoverable.

Although such a review was conducted here, the order does not reflect any analysis of the records to separate any non-privileged and discoverable material from that which is privileged and non-discoverable.

Therefore, the court’s order is affirmed in part as it relates to “communications” between Dr. Rascoe and Ginsburg, but reversed in part as it relates to any other matters which may be contained in the records. This case is remanded to the trial court for review of the records in conformance with this opinion, i.e., to separate privileged versus non-privileged information and provide a redacted copy.

Judgment affirmed in part, reversed in part, and remanded with direction.

Decided February 17, 1995

Reconsideration denied March 29, 1995.

Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, Tammy S. Skinner, for appellant.

William L. Skinner, for appellee.

        Wiles interpreted “psychiatrist” as “ ‘a person licensed to practice medicine, or reasonably believed by the patient so to be, who devotes a substantial portion of his or her time engaged in the diagnosis and treatment of a mental or emotional condition, including alcohol or drug addiction.’ ” Id. at 597.


author: Birdsong, Presiding Judge.

text:
    A94A2148.
    A94A2149.
    BALLARD v. WARREN. WARREN v. BALLARD et al.
    (456 SE2d 589)
   Birdsong, Presiding Judge.

This appeal and cross-appeal are from a plaintiff’s verdict in this suit arising out of a three-vehicle collision caused when defendant Graydon Lee Ballard III pulled from the road shoulder onto Interstate-24 into the paths of plaintiff Susan Jennifer Steele Warren’s vehicle and a tractor-trailer rig owned by defendant Foster Trucking Company. Plaintiff Warren was awarded $78,500 against Ballard and nothing against Foster Trucking Company and its driver, Justin Walls.

Ballard contends the trial court erred in refusing to admit evidence of plaintiff’s insurance coverage after plaintiff and her husband “falsely” testified that they themselves had to pay medical bills. Ballard further contends the verdict was so excessive as to be inconsistent with the preponderance of the evidence. Plaintiff Warren filed a cross-appeal. Held:

Case No. A94A2148

1. Plaintiff Susan Warren responded to a question about physical therapy costs: “I don’t know the exact total. I’d have to look at figures to remember. I just know that I have a total of medical bills that is around $7,000. . . . Q. How much was your car worth? A. I believe like around $4,500. ... I had to pay for my medical bills. And just to be driving down the road one day and all of a sudden my life turned upside down and have to face these medical bills.” As to what medical tests she had, Warren responded: “I’m still paying for these medical bills on a payment plan right now because I can’t, of course, pay all at one time. So I’m paying monthly right now for the medical bills. . . . [Here is] a list of my medical bills [that I’ve incurred] to date.” The plaintiff then read to the jury a list of medical bills totaling $6,287.22. Plaintiff’s husband testified that the only interest he had “is that ultimately all payment from this accident has fallen on us. And the interest I have is to be able to pay those bills and replace her car which has all come back on us as a family.”

Ballard’s counsel made no objection to the plaintiff’s.statement, but, to the response of plaintiff’s husband, Ballard’s counsel objected that the witness was misleading the jury to believe plaintiff and her husband had to buy a new car and pay all the medical bills with their own money, which is false. Ballard’s counsel asked to be allowed to inquire whether plaintiff received insurance money for the loss of the car and medical bills. The trial court refused.

Ballard contends the statements by plaintiff and her husband are false because their car damages and medical bills were paid by insurance. Plaintiff’s counsel rejoins that Ballard is in a poor position to complain of misleading conduct inasmuch as Ballard denied any responsibility for the collision throughout the litigation until his opening statement, when he admitted liability. See Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 754 (266 SE2d 531); the parties may have placed themselves on equal footing in this regard.

Be that as it may, the trial court erred in refusing to permit Ballard to introduce evidence of plaintiff’s insurance benefits. In Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269), the Supreme Court declared unconstitutional a law allowing evidence of “collateral sources” in consideration of damages. Such evidence is “inherently prejudicial.” Id. at 43. “The effect of Denton v. Con-Way was to restore our law, concerning admissibility of evidence of collateral sources, to its status before the effective date of OCGA § 51-12-1 (b).” Willard v. Wilburn, 203 Ga. App. 393, 394 (416 SE2d 798). “ ‘Certainly, the pre-Denton, and proper, rule is that when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented (plaintiff) from seeking treatment, defendant is allowed to cross-examine her on this point in the narrow, limited manner which the trial court allowed in this case.’ ” Moore v. Mellars, 208 Ga. App. 69, 72 (430 SE2d 179); see also Patterson v. Lauderback, 211 Ga. App. 891, 892 (440 SE2d 673) (cert. denied).

When, as in Moore and Patterson, a plaintiff falsely states that she was deprived of medical care, a defendant may be allowed “to impeach a plaintiff’s contentions regarding financial inability to seek medical treatment” {Moore, supra at 71) and defendant is allowed to cross-examine the plaintiff “on this point in [a] narrow, limited manner.” Moore, supra at 72; Patterson, supra.

Whenever a plaintiff “opens the door,” admissibility of collateral source evidence is determined by the trial court’s exercise of its discretion to balance the probative value of that evidence against its tendency to prejudice the jury unduly. See Pullen v. State, 208 Ga. App. 581, 585 (431 SE2d 696). In this case, as in Moore and Patterson, plaintiff and her husband testified that they incurred harm and hardship which they did not incur, so as to give a false impression to the jury and invoke a sympathetic verdict not based on fact. It is true that injection of evidence of insurance coverage may infect a verdict, but this fact does not allow plaintiffs to infect the jury by implying they had no insurance coverage and then prohibit impeachment of such misleading evidence on grounds that the verdict will be “infected” by the truth. We do not condone the misleading of the jury by any party or witness. Collateral source evidence, if not of greater relevance than prejudice, may not be admitted, but neither may the plaintiff use that rule to mislead the jury. The evidence of insurance coverage was admissible in this case for the purpose of impeachment, and any possible prejudice to plaintiff was caused by her.

The trial court erred as a matter of fact and law in this case in determining that the prejudicial impact of the collateral source evidence outweighed its relevance. It is impossible to say the jury’s verdict was not infected by the sympathy falsely invoked by plaintiff. Accordingly it must be reversed.

2. In view of this ruling, it is unnecessary to consider Ballard’s enumeration that the award was clearly so excessive as to be inconsistent with the preponderance of the evidence. In general, however, a verdict supported by evidence cannot be set aside unless it plainly was induced by prejudice, bias or corrupt means. Wayco Enterprises v. Crews, 155 Ga. App. 775, 777 (272 SE2d 745). This verdict plainly was induced by prejudice caused by the plaintiff.

Case No. A94A2149

3. As to plaintiff Warren’s cross-appeal, the enumeration that the trial court erred in denying a new trial, is moot, in view of the ruling in Case No. A94A2148.

4. The trial court’s ex parte opening of the default of defendant Justin Walls (the driver of defendant Foster Trucking Company’s truck) is moot, as no default judgment was ever obtained against Walls, and the “opening of default,” on substantive grounds was not error. The attorney for Foster Trucking Company submitted a sworn affidavit saying she intended the answer of Foster Trucking Company to include Walls’ name in its heading, and the omission of Walls’ name from that answer was an oversight. Moreover, the body of the answer did assert that Walls was not negligent, and Foster Trucking Company admitted Walls was acting in the scope of his employment.

5. The evidence authorized a jury charge on “sudden emergency” and “avoidance.” Where there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue. Hicks v. Doe, 206 Ga. App. 596, 598 (426 SE2d 174).

Decided February 8, 1995

Reconsideration denied March 29, 1995

Baker, Kinsman & Hollis, N. Mark Kinsman, for Ballard.

Weiner, Yancey & Dempsey, Beryl H. Weiner, Weill & Weill,' Harry Weill, for Warren.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2206.
    THE STATE v. SHEAHAN.
    (456 SE2d 615)
   Birdsong, Presiding Judge.

The State of Georgia appeals the grant of John Sheahan’s plea of former jeopardy in its prosecution for vehicular homicide, improper lane change and violation of the “Truck Restriction Law.” See OCGA § 40-6-52 (b); Duke Trucking Co. v. Giles, 185 Ga. App. 833, 834 (366 SE2d 216). The plea of former jeopardy was made on account of the imposition of a fine in traffic court for violation of the Truck Restriction Law after entry of a nolle prosequi as to each charge.

At the hearing in January 1993, the traffic court prosecutor moved to dismiss the vehicular homicide and improper lane change charges; as to the truck restriction charge, he said Sheahan “stipulate [d] a prima facie case.” The attorney for David Sotto, whose wife was killed in the collision, contended the investigation was mishandled and that Sotto was not interviewed because he suffered a brain injury; he “vehemently opposefd] any dismissal of the improper lane change [and] vehicular homicide charges [as to Sheahan]. We have substantial evidence . . . that not only did Mr. Sheahan illegally enter the city of Atlanta inside 1-285 . . . but that he changed lanes . . . and caused the ultimate crash that killed [Mrs. Sotto].” To David Sotto, the traffic judge said: “I want you to have your day in court. ... I would not be inclined because of your . . . feelings to dismiss it. I can nol-pros it where it can be brought back up ... so I’ll nol-pros it.” After more discussion, the court said: “[This] will be my decision, to nol-pros it. The parties are excused.” Then the prosecutor said: “Excuse me, Your Honor, there is a plea in regard to the truck violation. They pled not guilty but stipulated a prima facie case. We have stipulated a $500 fine. . . . [THE COURT:] That in no way has an effect on the nol-pros(Emphasis supplied.) To this Sheahan did not demur. The traffic court entered “nolle prossed” on the back of each traffic ticket, including the ticket citing Sheahan for violation of the Truck Restriction Law. There is no indication that the State disagreed with this action or did not fully concur in it. The State’s position in this confused discussion was ambiguous.

In December 1993, the Fulton County Solicitor General filed accusations against Sheahan for vehicular homicide, improper lane change, and violation of the Truck Restriction Law. In granting Sheahan’s former jeopardy plea, the state court held: “At the end of the January 19, 1993, hearing, the traffic court granted the prosecutor’s motion to nolle prosequi the [charges]. . . . Upon being reminded by the prosecutor of the not guilty plea, the stipulated facts, and the stipulated fine with regard to the truck restriction charge, [the traffic judge imposed the fine], essentially, therefore, finding him guilty of that charge. . . . The State argues that this action was void [under State v. Davis, 196 Ga. App. 785 (397 SE2d 58)]. Defendant argues that the [fine] was valid and bars subsequent prosecution of the related offenses . . . arising out of the same conduct. OCGA § 16-1-7. . . . The transcript ... is subject to both interpretations.”

The trial court held, however, that imposition of the fine placed Sheahan in jeopardy on the truck restriction charge, thus barring his prosecution on the other charges. Held'.

1. The state court erred in its analysis. To determine the effect of the fine, the traffic court’s actions must be analyzed on their own footing. The resolution lies not in measuring those inconsistent actions against the later plea in bar, but in measuring them against each other.

Standing against the nolle prosequi of the same charge, the fine was void. If Sheahan had appealed the fine on grounds that it was void because the charge was also nolle prossed, without question the nolle prosequi would stand and the punitive disposition would be declared void, under the ancient authority that if there is any doubt as to a criminal sentence the defendant will be given the benefit of such doubt. Grant v. State, 195 Ga. App. 463, 465 (393 SE2d 737) and cases cited. The fine, being adverse to Sheahan, was void in the face of the nolle prosequi of the same charge. That he chose not to appeal the fine and now asserts it in bar of further prosecution does not make it valid, for it was void when it was imposed. A judgment which is void for any cause is a mere nullity and it may be so held in any court where it becomes material to the interest of the parties to consider it. Barrett v. State, 183 Ga. App. 729 (1) (360 SE2d 400).

2. Further, the traffic hearing transcript shows clearly that the nolle prosequi was granted before the traffic court accepted a fine on the charge. When the traffic court entered “nolle prossed” on the truck restriction charge, it had no more jurisdiction to try the charge and impose a fine. “When the nolle prosequi was entered . . . the prosecution was at an end, and all the incidents to it came to an end [cit.], including most obviously the right of the State to try the defendant upon the indictment.” State v. Davis, supra at 786. The nolle prosequi was not nullified by imposition of a fine, for there was no charge once the nolle prosequi was entered. To say otherwise would render every nolle prosequi a “meaningless gesture” (id.) or a very uncertain gesture, as the state court perceived it to be. A nolle prosequi is not a meaningless, uncertain gesture. The entry of the nolle prosequi rendered the charge dead. The State has no right to nolle prosequi a charge and try it nonetheless (id.); no rights accrued to Sheahan by this defective procedure, for he did not have a “right” both to have a charge nolle prossed and pay a fine on it. An appeal of that disposition would have resulted, as in State v. Davis, in the fine being declared void for lack of jurisdiction to impose it when the charge was “nolle prossed.” The fine, being void, is not rendered valid at some later proceeding merely because the defendant seeks to use it as a plea in bar. See Barrett, supra.

3. Further, even assuming arguendo that the fine had not been void, it was invoked by a manipulation of court process by Sheahan. The traffic court hearing transcript shows it was the traffic court’s expressed intention to nolle prosequi the charges so they could be brought again without prejudice to any of them. The traffic court judge stated that the “stipulation” of a fine on one charge “in no way has an effect on the nol-pros,” by which he meant the fine had no effect on the State’s right to prosecute the other charges in the future. The traffic judge testified at the plea in bar hearing that this statement was a question to both parties, and neither party objected to it. Although Sheahan now insists the trial court was incorrect on that point, Sheahan acquiesced in the statement when it was made. If Sheahan had advised the traffic court that he intended to assert the fine as a plea in bar to prosecution of the other charges against him, it is clear the traffic court would not have accepted his “stipulated fine.”

The traffic court’s error was thus induced, at least in part, by Sheahan. Nor did this induced error occur in a vacuum. Sheahan’s inconsistent procedure of pleading not guilty while at the same time “stipulating a prima facie case” and agreeing to pay a fine was highly irregular. It seems intended to confuse things, and it did. It was even more irregular for Sheahan to agree to pay a fine on a charge which had been nolle prossed. The State was not at fault for Sheahan’s use of these strategical feints to bring about confused and ambiguous results. “[0]ne who misuses the system, through no fault of the state, should not be able to successfully raise a plea in bar which arises because of his manipulation.” State v. McCrary, 253 Ga. 747 (325 SE2d 151); Collins v. State, 177 Ga. App. 758 (341 SE2d 288).

We upheld a plea in bar in McCrary v. State, 171 Ga. App. 585 (320 SE2d 567) because the State intended all charges arising out of the same conduct would be bound over to superior court, but did not so inform the probate court, which accepted guilty pleas to two misdemeanor charges presented to it. Id. at 586. In affirming our decision, the Supreme Court warned that the rule that “one who misuses the system, through no fault of the state, should not be able to successfully raise a plea in bar which arises because of his manipulation” (id. at 747) did not apply in that case because the State’s election to prosecute two charges in probate court “did not result from any act of the accused” (Emphasis supplied.) State v. McCrary, supra at 748. The same cannot be said of Sheahan, who confused the proceedings by pleading not guilty and “stipulating a prima facie case” and a $500 fine as to one charge after that charge had been nolle prossed, after acquiescing in the traffic court statement that the fine would “have no effect” on the State’s future prosecution of the charges.

Decided March 6, 1995

Reconsideration denied March 29, 1995

Paul L. Howard, Jr., Solicitor, Deborah W. Espy, Ingrid D. Hartman, Assistant Solicitors, for appellant.

Arrington & Hollowell, Bradley S. Wolff, Wolfe & Steel, Brian E. Steel, Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, for appellee.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Matthew P. Stone, Assistant Attorney General, amici curiae.

As the imposition of a fine is void, the state court erred in granting Sheahan’s plea of former jeopardy. The fine, being void, is no impediment to further prosecution of all the charges.

Judgment reversed.

Blackburn, J., concurs. Ruffin, J., concurs in judgment only.


author: Ruffin, Judge.

text:
    A94A2222.
    In the Interest of D. S. et al., children.
    (456 SE2d 715)
   Ruffin, Judge.

This is an appeal by the natural mother of three children, aged six, three, and two, from an order of a juvenile court finding the children to be deprived and placing temporary custody of the children with the Heard County Department of Family & Children Services (“DFCS”). This is the second appearance of this case before this court. See In the Interest of D. S., 212 Ga. App. 203 (441 SE2d 412) (1994). Previously, we granted the mother’s application for discretionary appeal to review the juvenile court’s order finding the children to be deprived and awarding temporary custody to DFCS. We found that the facts set forth in the trial court’s order did not constitute “clear and convincing evidence of deprivation under OCGA § 15-11-2 (8).” Id. at 204. However, because the order did not contain explicit findings of fact and conclusions of law in accordance with OCGA § 9-11-52, the judgment was vacated and the case was remanded for entry of the proper findings and a new judgment.

We granted the mother’s application for discretionary appeal from the court’s new order affirming the deprivation to determine whether the evidence supported the finding of deprivation.

1. Appellant contends the evidence was insufficient to support the juvenile court’s order because there was no evidence of harm to the children and the DFCS caseworker failed to establish that she was an inappropriate parent. She argues the trial judge’s initial comments on the evidence also demonstrate its insufficiency. At the conclusion of the initial detention hearing to determine whether the children should be detained or released to their mother pending a hearing on the deprivation petition, the court stated its early impression that the circumstances did not warrant permanent removal of the children and that the case could be remedied by close supervision of the parties. In that hearing, the court heard all of the evidence regarding the condition of the mother’s home.

“ ‘When contemplating taking custody of a minor child from his parent or parents and awarding it to a third party, the court must initially face the presumption, firmly embedded in our law, that it is in the child’s best interest to be with his natural parent or parents. In order for this presumption to be overcome, there must be a clear and convincing showing that the child is abandoned, deprived, or abused, or that the parent is unfit to receive or retain custody. Thus, in order to take custody from the natural parent or parents and award it to a third party, the court must consider not simply the “best interest of the child,” which is the appropriate standard when the contest is between the parents, but the narrower criterion of parental unfitness to have the child in his or her custody. ... A parent may lose (her) right to custody of (her) child or children if (she) is found to be unfit or if there is found to exist one of the conditions specified in OCGA § 19-7-1. . . . Custody may also be lost if the child is found to be . . . deprived and likely to be harmed thereby.’. . . [Cit.]” In the Interest of M. A. V., 206 Ga. App. 299, 300 (1) (425 SE2d 377) (1992). “OCGA § 15-11-2 (8) defines a deprived child as a child who ‘is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. . . .’ ” In the Interest of E. R. D., 172 Ga. App. 590 (323 SE2d 723) (1984).

The trial court’s finding of deprivation was based on evidence that the children were living in unsanitary conditions which the court deemed a significant threat to the health and welfare of the children. The court’s order sets forth the following findings of fact: “The kitchen was littered with dirty dishes, hardened liquid soiled the kitchen floor, and food which had been left on the counters was rotted. There were also live and dead roaches in the kitchen cabinets, on the counters and in the refrigerator. . . . [T]he carpeting in the house was soiled and emanated a strong odor of animal discharge, and . . . there was a dead rat in the bathroom that had been there so long that only the skull remained.” The court also found that the home was without gas or other means to heat water for bathing or cleaning; that the mother was not gainfully employed; and that drug paraphernalia was discovered in a night stand on the day the children were taken into custody.

“ ‘(T)he appropriate standard of appellate review ... is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” This standard of review safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination “on a few isolated instances of unusual conduct or idiosyncratic behavior.” (Cit.) “Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” (Cit.)’ [Cit.]” In re S. E. H., 180 Ga. App. 849, 850-851 (350 SE2d 833) (1986).

The evidence recited above is virtually the same evidence we previously determined did not constitute “clear and convincing evidence of deprivation under OCGA § 15-11-2 (8).” In the Interest of D. S., supra at 204. However, the evidence has been rendered less compelling by the notable deletion of the references to a drug raid on the home and the presence of a large quantity of drugs which were accessible to the children.

Moreover, the trial court’s order contains no finding of fact with respect to the condition of the children. While the evidence showed that the family was living in filthy surroundings, there was no evidence of how the environment adversely affected the children, i.e., evidence of physical neglect, medical problems, malnourishment, emotional harm or mental inadequacies. Compare Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (272 SE2d 588) (1980). Thus, there is no evidence upon which a determination can be made that the children were without “proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental, or emotional health or morals” under OCGA § 15-11-2 (8).

Furthermore, “a showing of parental unfitness is required in cases of temporary custody sought by a third party. [Cit.] Parental unfitness is ‘ “caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or by what is tantamount to physical or mental incapability to care for the child.” ’ [Cits.]” In re J. C. P., 167 Ga. App. 572, 575 (307 SE2d 1) (1983). There was no evidence of neglect or abuse of the children. With respect to the mother’s fitness, the DFCS caseworker assigned to her testified, “I don’t have an opinion as to whether she’s an appropriate mother or not. I don’t have any reason to have one one way or the other; okay? I mean, I don’t have any reason to believe that she’s not or that she is.”

Decided March 17, 1995

Reconsideration denied March 29, 1995

Dock H. Davis, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Price & Pyles, T. Christopher Pyles, for appellees.

“ ‘The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.’ [Cit.] Our review of the record fails to unearth the clear and convincing proof that any rational trier of fact could have found that [appellant] had conducted [herself] in such a way as to abuse or neglect [the children] to the extent that [her] parental right to custody should be terminated.” In re S. E. H., supra at 851-852. Other than seeking to have the children declared deprived, there is no evidence that DFCS has provided any support services to this mother which would eliminate the necessity of resorting to the drastic measure of state intervention into this family unit. Compare Vermilyea, supra. Nor is there evidence that the mother would be uncooperative. We do not condone her neglectful housekeeping, but “we cannot say as a matter of law that the situation is such that [she] should be condemned as an unfit parent and stripped of [her] parental right to custody of [her children].” Id. at 852. See also In the Interest of M. A. V., supra at 302.

2. In light of our holding in Division 1, we need not address the remaining enumerations of error.

Judgment reversed.

Blackburn, J., concurs. Birdsong, P. J., concurs in the judgment only.