author: Smith, Presiding Judge. Eldridge, Judge,

text:
    A00A2127.
    METZLER v. ROWELL et al.
    (547 SE2d 311)
   Smith, Presiding Judge.

In this appeal we consider the application of OCGA § 9-11-11.1, the Georgia anti-SLAPP (Strategic Litigation Against Public Participation) statute, to a dispute between a landowner seeking to rezone a parcel of land for development and concerned residents of the affected neighborhood. Because the trial court properly applied the provisions of the statute and did not err in dismissing the complaint as to three of the defendants below, we affirm.

Daniel A. Metzler brought this tort action in DeKalb County Superior Court against Atlanta City Council member Cathy Woolard, local residents Helen Loyless, Steven Rowell, and Rochelle Routman, and Wildwood Urban Forest Group (“Wildwood”). Most of the relevant facts are not disputed by the parties. Metzler owns approximately 31 acres of land in the Morningside neighborhood, located in the City of Atlanta and Fulton County. He filed a petition seeking to rezone the property to allow the construction of 34 houses on approximately nine acres. This zoning petition was opposed by numerous individuals from the community as well as by Wildwood, which the trial court described as “an unincorporated grass-roots environmental organization.”

Metzler’s zoning request was denied, and Metzler appealed that decision to the Fulton County Superior Court in March 1999. Numerous individuals from the neighborhood, including the appellees in this case, filed a motion to intervene in the Fulton Superior Court action in June 1999. That motion was denied in December 1999. The Fulton County zoning appeal remained pending at the time of the DeKalb County trial court’s order in this case.

In August 1999, Metzler entered into a contract with D. R. Horton, Inc. — Torrey (“Torrey”) for Torrey to purchase and develop the land. Under the contract, Torrey had a period of 45 days within which it could, at its option, terminate and void the agreement by written notice to Metzler. During this period, Torrey had the right to enter on and inspect the land and perform various studies, including soil borings and percolation tests. During the week of September 20, 1999, Metzler alleges that Torrey attempted to perform a soil boring test. A concerned individual in the neighborhood called the police, apparently believing that the use of heavy equipment indicated that development had begun without a permit. Metzler alleges that “[defendants Woolard or Loyless or an unidentified third party believed to be a member, agent, or actor on behalf of” Wildwood made the telephone call; appellees Routman and Rowell deny having done so.

On September 24, 1999, an attorney representing “a number of the Morningside residents whose property adjoins or is downstream of the Dan Metzler/Torrey property” wrote a letter to Metzler’s attorneys and Torrey. He noted that heavy equipment had been used to disturb the land for several days without a permit, including areas in the wetlands on the site and a state-mandated 25-foot stream buffer zone. He advised Metzler and Torrey that “all such activities must be terminated immediately” and that his clients otherwise would seek injunctive relief, and he asked that Metzler and Torrey call him at their earliest convenience to inform him of their intentions. Metzler also alleges that city council member Woolard contacted the Torrey vice president for acquisitions, told him that the property was the subject of a lawsuit and that the City of Atlanta would oppose any effort to develop the land, and asked to be informed of its decision. On September 28, 1999, Torrey notified Metzler that it would not purchase the land.

Metzler then brought this DeKalb County action against Woolard as well as Loyless, Rowell, Routman, and Wildwood, alleging tortious interference with the sales option contract with Torrey, tortious interference with business relations, trespass, and interference with his right of quiet enjoyment of his property. He sought punitive damages and injunctive relief.

Rowell and Routman immediately filed a motion to dismiss on numerous grounds, including the provisions of OCGA § 9-11-11.1, and Wildwood joined them in amended motions to dismiss, a motion for protective order, and a motion to quash. The trial court determined that Metzler’s action violated OCGA § 9-11-11.1. The trial court also found Metzler’s remaining claims to be without merit and that Wildwood was never properly served. This appeal followed.

1. Metzler contends that the trial court erred in finding that his action was a “SLAPP suit” under OCGA § 9-11-11.1. We disagree.

OCGA § 9-11-11.1 is intended to protect Georgia citizens who participate in “matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances” from “abuse of the judicial process.” OCGA § 9-11-11.1 (a). To prevent such abuse, the statute provides that a claim that could reasonably be construed as infringing upon these rights must be accompanied by a detailed verification and provides for a motion to dismiss and hearing on this issue. OCGA § 9-11-11.1 (b). See generally Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 680 (1) (494 SE2d 527) (1997) (full concurrence as to Division 1). Even if a verification is filed with the complaint, the trial court may nevertheless impose sanctions, including dismissal, “[i]f a claim is verified in violation of this Code section.” OCGA § 9-11-11.1 (b). The mechanical filing of a verification with the complaint, therefore, does not preclude dismissal if the claim is found by the .trial court to infringe on the rights of free speech or petition as defined by the statute.

In interpreting this statute, we first consider the expansive definition of protected speech and petition under OCGA § 9-11-11.1 (c):

As used in this Code section, “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

Subsection (b) of this Code section also references the privilege statute, OCGA § 51-5-7, specifically subsection (4), and the privilege statute in its turn incorporates the free speech and petition definition set out in OCGA § 9-11-11.1 (c). As established by these interlocking Code sections, the law includes two alternative definitions of a protected statement: any statement made to any “official proceeding authorized by law”; or any statement made in connection with an issue under consideration by any official proceeding. The dissent fails to take into account the scope of the latter definition.

At the time of the acts complained of, Metzler’s zoning petition had been pending for some time before the City of Atlanta, and a lawsuit was pending in Fulton Superior Court, as Metzler acknowledged in his verified complaint and the trial court noted in its order. While the zoning matter, the lawsuit, and the defendants’ petition to intervene in the lawsuit were all pending, there were several “official proceedings” under way, and virtually all the conduct complained of falls within the scope of this very expansive definition. A letter written by an attorney for parties to a petition to intervene, directed to the owner of the land in litigation and a developer actually performing work on that land, is clearly made “in connection with an issue” of zoning and development under consideration by a “judicial body.”

The framing of Metzler’s claims as tortious interference with contract or business relations does not render the assertion of privilege inapplicable. The statements complained of are not only privileged within the meaning of OCGA §§ 9-11-11.1 (c) and 51-5-7 (4), but also under the similar “good faith statements” provisions of OCGA § 51-5-7 (3), as the trial court noted in its order. In dismissing the action, the trial court relied in part on Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185 (474 SE2d 56) (1996). In Choice, Ocmulgee, a hotel franchisee, claimed that the franchisor, Choice, tortiously interfered with its contractual rights. Ocmulgee’s principal was involved in a long-running dispute with Choice that resulted in Ocmulgee’s attempted cancellation of the franchise agreement and an attempt to contract with another hotel franchise. Choice then wrote a letter to the other franchise informing it that Ocmulgee was still under contract with Choice; it was this letter that Ocmulgee claimed constituted tortious interference. Id. at 188. We held that Choice’s interest in its contract with Ocmulgee was “a valid interest that Choice was entitled to uphold” and that its letter was “made on a proper occasion, its publication was limited to those concerned, . . . and it was properly limited in scope.” Id. at 188-189 (2). Similarly, the neighborhood residents in this case had a valid interest in the zoning and development of their immediate surroundings, and a letter expressing their legal position, sent through an attorney, was made on a proper occasion and limited to those concerned: Metzler and the third party holding an option on the property and performing work there.

The privilege established by the anti-SLAPP statute was correctly applied by the trial court to the facts and circumstances set forth here, and the trial court did not err in granting the motion to dismiss.

2. Metzler also makes allegations of trespass and interference with property rights by removing surveyor’s pins, blocking access to the property, “screaming obscenities” at him, and placing or removing signs on the property. While the placing of signs or speech under certain circumstances might fall within the purview of OCGA § 9-li-li. 1, it seems apparent that trespass by pulling up land markers, defacing property, or blocking ingress and egress (without more) is not covered by the statute as none of these actions constitutes a “written or oral statement.” See generally Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 234 (1) (b) (543 SE2d 65) (2000) (physical precedent only).

But we need not reach these allegations with respect to appellees here. The allegations of trespass and interference with property rights in Metzler’s complaint are limited to Loyless, who is not a party to this appeal, acting “alone or in conjunction with other individuals” who are never identified. The trial court limited its dismissal on this count to Rowell, Routman, and Wildwood only. Woolard and Loyless, who are defendants below but not parties to this appeal, are alleged to be the individuals involved in the call to the police, the alleged trespass, and telephone calls to an officer of the third party. While Metzler makes a comprehensive allegation that all defendants were jointly and severally involved in each act, he gives no supporting facts, and both Rowell and Routman have explicitly denied contacting the police, contacting Torrey, or interfering with Metzler’s property by touching surveyor’s markers, blocking access, or making any statements to Metzler. Particularly in light of the discovery and evidentiary standards of OCGA § 9-11-11.1, as discussed below, Metzler was not entitled to stand on the general and conclusory allegations of his complaint in the face of direct testimony to the contrary, and the trial court did not err in dismissing the complaint as to these parties.

3. Metzler contends that the trial court’s decision should have been made on summary judgment rather than a motion to dismiss. This was not necessary, however, in light of the clear mandate contained in the anti-SLAPP statute. In OCGA § 9-11-11.1 (b) and (c), the General Assembly has established a mechanism by which the threshold question of compliance with the anti-SLAPP statute is decided on motion to dismiss or motion to strike. This is analogous to the statutory mechanism of OCGA § 9-11-12 (b), which provides that only motions under Rule 12 (b) (6) for failure to state a claim are converted to summary judgment. Other motions under 12 (b), such as to dismiss for lack of jurisdiction or for insufficiency of process, are not subject to this statutory rule, and such a motion, even “when tried on affidavits pursuant to OCGA § 9-11-43 (b), does not become a motion for summary judgment.” (Citations omitted.) Terrell v. Porter, 189 Ga. App. 778, 779-780 (2) (377 SE2d 540) (1989). The application of this rule is made plain by OCGA § 9-11-11.1 (d), which expressly provides that the trial court in its discretion may order limited discovery despite the stay imposed when a motion to dismiss or strike is filed pursuant to subsection (b). When the statutory scheme provides for limited discovery in conjunction with the filing of a motion to dismiss or motion to strike, the introduction of evidence produced by that discovery should not convert the motion to one for summary judgment. If Metzler wished to conduct discovery and introduce evidence to show that dismissal of his complaint as to these defendants was inappropriate despite the privilege established by OCGA §§ 9-11-11.1 (b) and 51-5-7, he could have petitioned the trial court for any necessary discovery and introduced evidence in accordance with the statutory provisions.

4. Finally, Metzler contends the trial court erred in finding that he failed to effectuate proper service upon Wildwood. The question of proper service is also a matter that can be decided on motion to dismiss even if affidavits are introduced. “Motions to dismiss for insufficiency of service of process are matters in abatement, and do not form a proper basis for motions for summary judgment or convert to motions for summary judgment when matters outside the pleadings are considered. [Cit.]” Cushman v. Raiford, 221 Ga. App. 785, 786 (472 SE2d 554) (1996). The trial court properly considered affidavits regarding the composition and organization of Wildwood. As with OCGA § 9-11-11.1 (d), Metzler could have conducted limited discovery or deposed the defendants on this issue, but he did not do so. The only allegation is that made in the complaint: that Loyless, Rowell, and Routman are each “an official and/or member” of Wildwood, and Wildwood may be served by serving them. This general allegation was directly refuted by the affidavits of Rowell and Routman.

Sheet Metal Workers Intl. Assn. v. Carter, 241 Ga. 220 (244 SE2d 860) (1978), is not applicable here, as it does not permit service on mere “members” rather than “official members” as defined in that decision. In Carter, service was purportedly made upon the union by serving a rank-and-file member of a union local. The case holds that “official member,” as set out in the applicable statute, means

a person who is clothed with some official duty or status to perform for the association or organization, other than that imposed upon an officer; a duty or status which is also more than that imposed upon a person solely because he is listed as a member on the official rolls of the association or organization.

Id. at 222. Metzler failed to show proper service on an “official member” of Wildwood, although he had the opportunity to do so. The trial court correctly determined, based upon the evidence before it, that Metzler failed to effectuate proper service upon Wildwood.

Judgment affirmed.

Pope, P. J., Andrews, P. J., Johnson, P. J., and Phipps, J., concur. Eldridge and Barnes, JJ, dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent.

The tortious conduct of the defendants had no direct relationship with either the previous rezoning application or the pending suit appealing such denial. The lawsuit alleged defendants’ conduct was designed to block the private land sale, because the defendants wanted no development on plaintiff’s land under any circumstances. Thus defendants’ conduct was unrelated to the exempt conduct of the Anti-SLAPP Statute. The defendants’ conduct was part of the overall opposition to any development of this land whether under the existing zoning, non-Anti-SLAPP protection, or a rezoning, AntiSLAPP protection. Torrey’s purchase and development of the land for houses were under the existing City of Atlanta zoning and existing state and federal environmental laws and regulation. The defendants’ action was not directed as free speech or right of petition to influence the news media, the judiciary, public officials, or even the public, but such action was directed in private to a private person, Torrey, to chill the purchase by contract through harassment from the neighborhood and environmental groups and threat of costly litigation in terms of time and money. Such conduct falls outside the intent and purpose of not only the Anti-SLAPP Statute but also is not privileged conduct. This opinion constitutes an unreasonable judicial expansion of such narrowly drawn statutes contrary to the express intent of the General Assembly.

The cardinal rule of statutory construction is the determination of the legislative intent and purpose. Where a statute is clear, plain, and unambiguous, the courts must construe the statute according to its exact terms, because the language of the statute is a clear expression of the intent of the legislature in passing such statute, and courts are prohibited from broadening its application by judicial construction. Davis v. Emmis Publishing Corp., 244 Ga. App. 795 (536 SE2d 809) (2000) (Eldridge, J., concurring specially); see also Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Statutes in derogation of the common law must be strictly construed against the party asserting the right under the statute. Davis v. Emmis Publishing Corp., supra; Corner v. State, 223 Ga. App. 353, 355 (477 SE2d 593) (1996); Hester v. Chalker, 222 Ga. App. 783, 784 (476 SE2d 79) (1996).

Under the clear and unambiguous language of OCGA § 9-11-11.1 (c) as to the scope of the statute’s protection, the General Assembly expressly limited the statutory meaning of “ ‘act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern’ ” to a petition to a legislative, executive, judicial body, or “other official proceeding authorized by law” in connection with an issue under consideration or review before such body by any written or oral statement, writing, or petition, which applies only to certain First Amendment rights, and not all exercise of First Amendment rights. See OCGA § 9-11-11.1; Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232-233 (1) (543 SE2d 65) (2000). Contrary to the majority, this was not broadly defined. The statute deals only with “abusive litigation that seeks to chill exercise of certain First Amendment rights” (Emphasis supplied.) Great Western Bank v. Southeastern Bank, 234 Ga. App. 420, 422 (507 SE2d 191) (1998); see also Browns Mill Dev. Co. v. Denton, supra at 233. Thus, to be covered by the statute, the conduct of free speech and petition to government must be the conduct that is the basis of suit. OCGA § 9-11-11.1 (a); see also caption of the Act in Ga. L. 1996, pp. 260-261; Browns Mill Dev. Co. v. Denton, supra at 233. To come within the statute, the speech or petition must be directed to or made before a legislative, executive, or judicial body in regard to an executive, legislative, or judicial proceeding or any other official proceeding authorized by law involving an issue of public interest or concern to influence its actions in such regard and not to private individuals or legal entities. OCGA § 9-11-11.1 (b), (c); Browns Mill Dev. Co. v. Denton, supra at 232-233.

Statutory privileged speech or action is public speech or action as a form of First Amendment petition directed to one or more branches of government to influence its official function, as opposed to private speech or action directed toward a private individual to influence such individual’s private action. See generally Nairon v. Land, 242 Ga. App. 259, 260 (529 SE2d 390) (2000). “[T]his statute shall not be broadened to extend the privilege of tort immunity that abrogates a common law cause of action by judicial construction.” Davis v. Emmis Publishing Corp., supra (Eldridge, J., concurring specially).

While the sale of plaintiff’s land was an issue of public interest or concern and involved free speech, this alone was insufficient to bring such conduct within the ambit of OCGA § 9-11-11.1 and did not create a legal interest, because the conduct was directed at a private corporate entity, Torrey, and was not directed to an executive, legislative, or judicial body during any proceeding authorized by law, even though there was a judicial appeal pending. Thus, statutory protection of the right of governmental petition cannot cloak private tortious action of a nonpetition nature designed to chill and to interfere with contract rights to which the defendants had no standing as parties or privies. See Davis v. Emmis Publishing Corp., supra (Eldridge, J., concurring specially).

This tort action may be a SLAPP suit in the broadest sense that it is directed toward community activists who seek to thwart; however, the defendants have no anti-SLAPP protection under either the narrowly drawn definition of SLAPP protection under OCGA § 9-11-11.1 or § 51-5-7 (4), because the General Assembly chose to narrowly tailor the protection of the statute to exclude anything other than petitions to governmental entities or public comment to influence government.

In this case, the conduct complained of did not occur before any legislative, executive, or judicial body, nor was such conduct part of any legislative, executive, judicial, or any other official proceeding authorized by law as an exercise of petition, nor was it public comment to influence a governmental or judicial body in its decision making. It was a blatant attempt to stop the sale of the land for development for homes. Thus, it was private action directed to private individuals rather than governmental petition or an effort to influence government action. See Browns Mill Dev. Co. v. Denton, supra at 232-233.

Under the complaint, the conduct involved defendants (1) calling the police to stop soil testing on plaintiff’s land by Torrey; (2) defendants’ counsel writing to plaintiff’s counsel and Torrey threatening lawsuit if further soil or wetland disturbance occurred on the plaintiff’s land; and (3) having direct contact with Torrey demanding to know if it intended to exercise its contract option to purchase plaintiff’s land and to build homes on the land within the existing zoning. Plaintiff contended in its complaint that all of such conduct was intended to threaten, coerce, and intimidate Torrey with trouble, delay, and expense from community action, opposition, and threat of lawsuit so that it would chill the purchase of plaintiff’s land and thereby avoid development of the land. It was alleged that this action by the defendants intentionally and maliciously chilled plaintiff’s business opportunity and drove off the prospective purchaser. None of such private conduct comes within OCGA § 9-11-11.1, because the conduct did not involve a petition of government or free speech directed toward the influence of government action. Compare Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 680 (1) (494 SE2d 527) (1997) (physical precedent only) (written petition opposing rezoning, letters to county officials, and speaking before the county planning commission in opposition to the rezoning, such conduct was petition of government) and Browns Mill Dev. Co. v. Denton, supra at 232-233 (written materials directed to public officials and the news media to influence zoning and the enforcement of environmental laws and regulations).

Further, even if defendants’ conduct came within OCGA § 9-11-11.1 (b), the timely skeletal statutorily mandated verifications by plaintiff and by his counsel filed with the complaint satisfied the statutory requirements that it was sworn to, had not been interposed for an improper purpose, and was meritorious. OCGA § 9-11-11.1 (b); Davis v. Emmis Publishing Corp., supra; In re Carter, 235 Ga. App. 551, 553 (1) (510 SE2d 91) (1998). There was substantial compliance with the statute. See OCGA § 1-3-1 (c); Health Horizons v. State Farm &c. Ins. Co., 239 Ga. App. 440, 443-444 (521 SE2d 383) (1999).

The majority is correct that OCGA § 51-5-7 (4) was added in the same Act that created OCGA § 9-11-11.1, but such amendment did not extend to other provisions under OCGA § 51-5-7; specifically, OCGA § 51-5-7 (3) (good faith intent to protect an interest) was not made applicable as argued by the majority. Ga. L. 1996, p. 260, §§ 1, 2. However, the privilege under OCGA § 51-5-7 (4) is limited to free speech and right to petition government for a redress of grievances on matters of public interest as defined in OCGA § 9-11-11.1 and does not extend to private action outside the ambit of the AntiSLAPP Statute. See generally Browns Mill Dev. Co. v. Denton, supra at 232-233.

Thus, the speaker’s interest does not provide a qualified privilege under OCGA § 51-5-7 (3) to interfere with private contract rights to which they are strangers, and such interpretation as urged by the majority would create an unjustified expansion of OCGA §§ 9-11-11.1 and 51-5-7 (3).

The particular privilege applicable here is the protection of the spéaker’s interest under OCGA § 51-5-7 (3). This privilege, while primarily applicable to claims of libel and slander, may also be asserted as a defense to a claim for tortious interference with contractual relations. Statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which he is concerned are privileged. OCGA § 51-5-7 (3). To make the defense of privilege complete . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.

(Citations and punctuation omitted.) Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 188 (2) (474 SE2d 56) (1996); see also NationsBank v. SouthTrust Bank of Ga., 226 Ga. App. 888, 892 (1) (A) (1) (487 SE2d 701) (1997) (physical precedent only).

The tortfeasor must be a “stranger” to the business relationship at issue; a party, under appropriate circumstances, can be a non-signer of a particular contract and yet not be a stranger to the contract itself or to the business relationship giving rise thereto and underpinning it.

(Citations omitted.) Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 336 (2) (b) (444 SE2d 814) (1994). “ ‘The term “malicious” or “maliciously” means any unauthorized interference or any interference without justification or excuse.’” St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121, 124 (2) (421 SE2d 731) (1992). The defendants had no legal interest recognized within the law to interfere with the contract.

Choice Hotels Intl. v. Ocmulgee Fields, supra at 188-189, as relied upon by the majority for the expansion of a good faith interest, provides no privilege to the defendants in this case under either the facts or law, because in that case, Choice had an existing contractual relationship regarding the franchise by contract, which Ocmulgee sought to transfer to Holiday Inn; thus, Choice had a material pecuniary interest in the transfer of the franchise from it to Holiday Inn and was not a stranger to the contract. In this case, the defendants were strangers to the contract and had no legal interest or standing but sought to chill the contract to prevent the contract’s exercise. Id. at 188. To hold otherwise will unreasonably expand the effect of this Anti-SLAPP Statute beyond the express intent of the General Assembly.

Further, unless the allegations of the complaint disclose with certainty that plaintiff would not be entitled to relief under any state of provable facts, a complaint should not be dismissed. See Storm Systems v. Kidd, 157 Ga. App. 527, 528 (3) (278 SE2d 109) (1981); see also Tri-City Sanitation v. Action Sanitation Svc., 227 Ga. 489 (181 SE2d 377) (1971). In deciding such motion to dismiss for failure to state a cause of action, all pleadings must be construed most favorably to the pleader, and all doubts regarding the pleadings must be resolved in the pleader’s favor. Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997); Cellular One v. Emanuel County, 227 Ga. App. 197-198 (489 SE2d 50) (1997).

Tortious interference with contractual, business, or potential business relations occurs when (1) there is improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the tortious conduct proximately caused damage to the plaintiff Hylton v. American Assn. &c., 214 Ga. App. 635, 638 (2) (448 SE2d 741) (1994); Renden, Inc. v. Liberty Real Estate &c., supra at 334-335 (2). Plaintiff’s complaint has pled all these elements.

Also, plaintiff has pled that the defendants interfered with his property rights by disturbing survey stakes and monuments. OCGA § 44-1-15. Thus, a question of fact has been created.

A dismissal under OCGA § 9-11-11.1 (b) and (c) is in abatement and not in bar under OCGA § 9-11-12 (b) and does not act as an adjudication upon the merits. See Browns Mill Dev. Co. v. Denton, supra at 236, n. 2. An adjudication on the merits by OCGA § 9-11-12 (b) (6) (motion to dismiss for failure to state a claim), (c) (judgment on the pleadings), or § 9-11-56 (summary judgment) are inappropriate means to deal with a defense in abatement. See Terrell v. Porter, 189 Ga. App. 778, 779-780 (2) (377 SE2d 540) (1989). “Subject matter jurisdiction is simply a power that is conferred by law upon a class of cases that authorizes a court within such class to grant a particular form of relief that might be sought by, or accorded to, a party before it.” Wallace v. Meyer, 260 Ga. 253, 255 (5) (b) (394 SE2d 350) (1990). Where a trial court is deprived of such powers when a condition precedent to sue has not been satisfied, the trial court lacks subject matter jurisdiction under those circumstances unless and until the condition precedent is met. Since the filing of an adequate affidavit is a condition precedent to instituting an action coming within the AntiSLAPP Statute, then failure to comply requires the trial court to involuntarily dismiss without prejudice or strike such action, i.e., lack of subject matter jurisdiction. See generally Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 673 (2) (507 SE2d 525) (1998); Rehco Corp. v. California Pizza Kitchen, 192 Ga. App. 92, 94 (383 SE2d 643) (1989); Taco Bell Corp. v. Carlson Corp., 190 Ga. App. 481, 483 (379 SE2d 6) (1989). Thus, I agree with the majority that a dismissal under the Anti-SLAPP Statute, OCGA § 9-11-11.1, does not constitute an adjudication on the merits and should not be dealt with by summary judgment.

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

Decided March 14, 2001.

Hawkins & Parnell, Jack N. Sibley, Carl H. Anderson, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, Judy F. Aust, Ernest R. Bennett, Jr., Stack & Associates, Donald D. J. Stack, Martin A. Shelton, Michael W. Broadbear, for appellees.

       While this action, was brought against numerous defendants, the trial court’s order pertains only to defendants Rowell, Routman, and Wildwood Urban Forest Group. The remaining defendants are not parties to this appeal.

       The trial court noted that the proposed rezoning “was rejected by the neighborhood planning and City zoning officials at every level.”

       City council member Woolard, who does not live in the Morningside neighborhood, is the only party with any connection to DeKalb County, where Metzler brought this action. Metzler asserts jurisdiction over the other defendants in DeKalb County as joint tortfeasors.

       Metzler relies in his brief on a Wildwood website which as of this writing shows several of the defendants as “co-founders” or members of a “steering committee” for Wildwood. But even assuming without deciding that a website posting might be competent to show membership in Wildwood, Metzler did not introduce any evidence to this effect below. We are limited in our review to matters contained in the appellate record, and a party cannot use his brief as a procedural device to add evidence to the record. “It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court.” (Citations and punctuation omitted.) Demetrios v. State, 246 Ga. App. 506, 510, n. 14 (541 SE2d 83) (2000).

        Field, v. Kearns, 43 Conn. App. 265 (682 A2d 148, 153) (1996); see also Beatty, The Legal Literature on SLAPPs: A Look Behind the Smoke Nine Years After Pring and Canan First Yelled “Fire!”, 9 U. Fla. J. L. & Pub. Pol’y, 85, 96 (1997); Baruch, If I Had a Hammer: Defending SLAPP Suits in Texas, 3 Tex. Wesleyan L. Rev. 55, 57 (1996); Hargus, Civil Practice Act: Prohibit a Civil Litigant from Interposing a Claim for Improper Purpose, 13 Ga. St. U. L. Rev. 23, 28 (1996).

       “The Act narrowed the definition of protected speech as originally proposed. The original version covered ‘any written or oral statement, writing, or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern.’ ” (Citations omitted.) 13 Ga. St. U. L. Rev., supra at 29, n. 53.

       13 Ga. St. U. L. Rev., supra at 29, n. 53.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A2409.
    HOFFMAN et al. v. AC&S, INC. et al.
    (548 SE2d 379)
   Ruffin, Judge.

Elaine Hoffman filed suit against 16 manufacturers and/or suppliers of asbestos-containing products, alleging that she contracted malignant pleural mesothelioma as a result of exposure to defendants’ products. She asserted claims of both negligence and strict liability. After dismissing Hoffman’s claims against eleven of the defendants, the trial court granted summary judgment in favor of the remaining five defendants: Pittsburgh-Corning Corporation; AC&S, Inc.; Rapid-American Corporation; Asbestos Claims Management Company f/k/a National Gypsum Company; and Armstrong World Industries, Inc. (“AWI”). Hoffman appeals the grant of summary judgment. We dismiss the appeal as to two defendants that have sought bankruptcy protection, and we affirm the grant of summary judgment to the remaining three defendants because Hoffman failed to present evidence identifying their products as the ones to which she was exposed.

1. Since the decision of the trial court, it appears that defendants Pittsburgh-Corning Corporation and Asbestos Claims Management Company have sought relief under Chapter 11 of the Bankruptcy Code. Further proceedings against Pittsburgh-Corning Corporation and Asbestos Claims Management Company are therefore stayed by operation of 11 USC § 362, and this appeal is dismissed without prejudice as to those parties. Hoffman may file a new notice of appeal as to those parties within 30 days of the lifting of the bankruptcy stays.

2. We now address Hoffman’s appeal as it relates to the three remaining defendants in the case — AC&S, Rapid-American, and AWI.

Hoffman’s theory of liability is that during the mid-1960s, her brothers, Alan and Steven Goldberg, “worked around [defendants’] asbestos products, carried home the asbestos dust and fibers on their work clothes, and exposed [her] to the asbestos dust and fibers,” causing her to contract mesothelioma some 30 years later. Alan Goldberg testified that he worked at the Savannah Machine & Foundry shipyard from June to August 1965. During that time, he lived at home with his parents, his younger brother, and Hoffman. Alan stated that the shipyard was filled with dust “created by the grinding, sanding, welding and cutting processes” performed there and that this dust covered his clothes and body. He further stated that, when he came home from work, he would often greet Hoffman with a hug and a kiss while still wearing his work clothes. Alan removed his dirty clothes and sometimes shook off the dust in the bathroom, which was also used by Hoffman. His mother washed the dirty work clothes together with the rest of the family’s laundry.

Alan testified that during his first month at the shipyard, he worked as a welder’s apprentice and did not work with any asbestos products. During his second and third month at the shipyard, he served as a carpenters’ apprentice. Although Alan stated that he worked with asbestos products during that period, he could not recall the name of any particular product and could not identify with certainty any particular manufacturer. Steven Goldberg testified that he worked at the shipyard as a boilermaker’s assistant for one summer in either 1965 or 1966 and that his primary duty was to carry water to workers in the ship’s hold. He stated that he did not know whether he worked with or around any products containing asbestos.

Van Allen Lovell testified that he worked at the shipyard as a welder and boilermaker from 1951 to approximately 1983. Lovell remembered working around the boilers with the Goldberg brothers, but he could not recall when or how long the Goldbergs were there. According to Lovell, most of the products used around the boilers contained asbestos because “[t] hat’s the only thing that could stop that fire from eating that steel up.” He stated that a “slew” of asbestos products “from different companies” were in use at the shipyard. Lovell testified, however, that he “can’t say what kind of products we [were] using,” and he later noted that he “[paid] no attention to that.” Likewise, Lovell was unable to state whether the Goldberg brothers ever worked with any particular asbestos product or brand.

Roy Graddick testified that he worked as a boilermaker at the shipyard from 1956 to 1983 and that he supervised Lovell. Graddick did not recall the Goldbergs, but he did remember Lovell. Graddick stated that he began ordering asbestos products for the shipyard in 1961 or 1962. Although Graddick identified a number of different asbestos products that were used at the shipyard, including many that were manufactured by the defendants in this case, he could not state that any particular employee worked with any particular product. Moreover, although Graddick presumed that Lovell must have been in the vicinity of various specific asbestos products at some point during his career, Graddick could not state that Lovell worked with any particular product at any particular time.

The defendants sought summary judgment on the ground that Hoffman failed to present sufficient evidence that the asbestos products to which her brothers allegedly were exposed were defendants’ products. Summary judgment is proper when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” To win summary judgment, “a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim.” Although the plaintiff is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences “cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative.” We review a grant of summary judgment de novo.

To survive summary judgment, Hoffman clearly needed to present evidence that she was exposed to defendants’ products. Under Georgia law, “[w]hether proceeding under a strict liability or a negligence theory, ‘proximate cause’ is a necessary element of [a product liability] case.” We have held that

[u]nless the manufacturer’s defective product can be shown to be the proximate cause of the injuries there can be no recovery. A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of the design of his own marketed product and not that of someone else.

Thus, Hoffman needed to establish that the product or products that allegedly caused her mesothelioma were, in fact, manufactured or supplied by the defendants in this case.

Federal courts applying Georgia law in asbestos cases have held that “the threshold for every theory is proof that an injured plaintiff was exposed to asbestos-containing products for which the defendant is responsible.” That is, the plaintiff must present evidence “that a particular defendant’s asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used.” Such evidence may include “[testimony of co-workers who can identify a plaintiff by name as having worked with or around a particular defendant’s asbestos-containing products.” A plaintiff may either (1) identify by name an employee with whom he worked and submit an affidavit from that employee stating that he used the defendant’s asbestos-containing products, or (2) submit an affidavit from a co-worker identifying the plaintiff by name as working in the same vicinity with him and stating that he (the coworker) used the defendant’s asbestos-containing products.

Hoffman attempts the second method of proof. Lovell, a former employee at the shipyard, remembered working with the Goldberg brothers, but could not identify any particular asbestos products to which they might have been exposed. Graddick, another former employee, did not remember the Goldbergs, but he did identify a number of specific asbestos products — and their manufacturers — that were used at the shipyard over the years.

The problem, however, is that Graddick was unable to testify that any particular product manufactured by the defendants was used at the shipyard while the Goldbergs were there. It is undisputed that the Goldbergs worked at the shipyard only for a brief period of time — the summer of 1965 or 1966. At a minimum, Hoffman needed to present evidence that the defendants’ products were present in the shipyard during that brief period. But Graddick could not provide such evidence.

For the purpose of this appeal, defendants AC&S and AWI are associated with asbestos-containing insulation products bearing the name “Armstrong.” Graddick testified that he remembered Armstrong brand insulation being used at the shipyard, but he could not remember what kind of insulation it was or when it was used. He further testified that he believed he saw Armstrong insulating cement at the shipyard “in the sixties,” but he refused to commit to any specific year. To infer from this testimony that Armstrong asbestos products were used at the shipyard during the three-month span of the summer of 1965 or 1966 would be sheer speculation. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” Thus, Graddick’s testimony fails to create an issue of fact as to the Goldbergs’ alleged exposure to products associated with defendants AC&S and AWI.

The same is true for defendant Rapid-American. For the purpose of this appeal, Rapid-American accepts responsibility for products manufactured by Philip-Carey. Graddick remembered only one such product — Philip-Carey “All-Temp” insulating material. When asked whether this product contained asbestos, Graddick replied, “I don’t know.” Graddick further stated that he did not know where within the shipyard the product was used or when it was used. In fact, Grad-dick could not even say that All-Temp was used during the 1960s. Thus, there is no evidence tying the Goldbergs to any products associated with Rapid-American.

3. Hoffman contends that the unrebutted affidavit of her expert witness, Dr. Martin Cherniack, constitutes evidence that her brothers were exposed to defendants’ asbestos-containing products. We disagree.

According to his affidavit, Dr. Cherniack was retained “to render an opinion on whether or not Elaine Hoffman’s malignant pleural mesothelioma was causally related to exposure to asbestos fibers” — not to ascertain whose asbestos fibers were the source of exposure. After studying the depositions of Hoffman, the Goldbergs, Graddick, and Lovell, as well as Hoffman’s medical records, Dr. Cherniack concluded that Hoffman’s brothers were exposed to products containing asbestos during their employment at the shipyard, that fibers from those products clung to their clothing, and that Hoffman came into contact with the fibers as a result of living in the same household as her brothers. Dr. Cherniack noted that “boilermaker and welder/carpenter helpers in the 1960s were routinely exposed to a significant number of asbestos containing products” and that Graddick and Lovell “identified numerous asbestos containing products, including but not limited to” some of the products manufactured by defendants. But Dr. Cherniack did not state that Hoffman’s brothers were exposed to defendants’ products, nor would he have had any basis for so stating.

Decided March 14, 2001.

Middleton, Mathis, Adams & Tate, Charles A. Mathis, Jr., Douglas P. McManamy, Leslie S. Pickett, for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, Ivan A. Gustafson, Christopher G. Conley, Hawkins & Parnell, Michael J. Crist, Drew, Eckl & Farnham, Jeffrey A. Burmeister, Stevan A. Miller, for appellees.

As explained above, there simply is no evidence linking Hoffman’s brothers to defendants’ products. Hoffman’s attempt to establish such a link based on conjecture and speculation fails. Accordingly, the trial court properly granted summary judgment to defendants.

Summary judgment in favor of appellees AC&S, Inc., Rapid-American Corporation, and Armstrong World Industries, Inc. affirmed. Appeal of judgment relating to appellees Pittsburgh-Coming Corporation and Asbestos Claims Management Company dismissed with instructions. Judgment affirmed in part and appeal dismissed in part.

Andrews, P. J., and Ellington, J., concur.

       Malignant pleural mesothelioma is a cancer of the lining of the lungs.

       Hoffman’s husband also filed a claim for loss of consortium.

       See Wade v. First Union Nat. Bank, 231 Ga. App. 879 (498 SE2d 372) (1998); DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598, 599-600 (1) (417 SE2d 386) (1992).

       Alan did testify that he “believed” one of the products he used was manufactured by-Johns Manville, which is not a defendant in this case. In his affidavit, however, Alan said he was “unable to identify any asbestos containing product by brand name.”

       OCGA § 9-11-56 (o).

        Clark v. Joiner, 242 Ga. App. 421 (530 SE2d 45) (2000).

        Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 356 (518 SE2d 154) (1999).

        Clark, supra.

        Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3) (279 SE2d 264) (1981).

       (Emphasis omitted.) Id. at 135.

       See Davis v. Wells Aluminum Southeast, 172 Ga. App. 357 (323 SE2d 215) (1984) (affirming grant of summary judgment where plaintiff failed to present evidence that allegedly defective aluminum strip was manufactured by defendant).

        Blackston v. Shook & Fletcher Insulation Co., 764 F2d 1480, 1481 (11th Cir. 1985). See also Hoffman v. Allied Corp., 912 F2d 1379, 1383 (11th Cir. 1990); Odum v. Celotex Corp., 764 F2d 1486, 1488 (11th Cir. 1985); Lee v. Celotex Corp., 764 F2d 1489, 1490 (11th Cir. 1985); Lowie v. Raymark Indus., 676 FSupp. 1214, 1216 (S.D. Ga. 1987).

        Odum, supra.

       Id.

       See Blackston, supra at 1482.

       According to an affidavit submitted by an employee of AWI, AWI manufactured and distributed asbestos-containing block insulation and insulating cement under the name “Armstrong” up until 1958, and it manufactured and distributed Armstrong-brand asbestos-containing pipe insulation through 1959. Thereafter, AWI licensed the use of its trademark to AC&S, which used the name “Armstrong” on pipe covering, block insulation, and cements that it sold in the 1960s. For the purpose of this appeal, AC&S accepts responsibility for asbestos-containing insulation bearing the “Armstrong” name which may have been present at the shipyard in the 1960s. AWI denies such responsibility.

       (Punctuation omitted.) John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 864 (522 SE2d 270) (1999).


text:
    A00A2581.
    KROGER COMPANY v. STRICKLAND.
    (548 SE2d 375)
   Ruffin, Judge.

After Mamie Strickland slipped and fell in a Kroger store, she brought a negligence claim against the Kroger Company. The case was tried before a jury, which found in favor of Strickland. On appeal, Kroger contends the trial court erred in failing to direct a verdict in its favor. Kroger also asserts that the trial court erred in granting Strickland’s motion in limine and in instructing the jury. For reasons that follow, we affirm.

1. The granting of a directed verdict is a grave matter as, in directing a verdict, “the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury.” Thus, in reviewing a trial court’s denial of a motion for directed verdict, we will affirm the jury’s verdict as long as there some evidence to support it. In so doing, we construe the evidence with every inference and presumption in favor of upholding the verdict.

So viewed, the record shows that shortly after midnight on June 2,1997, Strickland went to a Kroger store that was open 24 hours. As she entered the foyer, she slipped and fell, landing on her side. After Strickland stood up, she noticed that her clothes were wet. Several other witnesses testified that the foyer floor was wet. According to Randy Walraven, who also shopped at Kroger shortly after midnight, “the floor was just really, really, really too wet, and when I first went in the door, ... I almost slipped myself.” Paula Setter, who also shopped at the store at around the same time, testified that “the whole floor was . . . wet, saturated.”

Neither Strickland, Walraven, nor Setter noticed any signs in the foyer warning of the wet floor. As Strickland checked out, however, a cashier asked her if she was hurt and warned her to be careful leaving because the floor was wet. The cashier then pointed to a warning sign in the foyer. According to Strickland, while she was shopping, the sign had been erected in the area where she had fallen.

No witness saw what caused the floor to be wet. However, because the floor was uniformly wet and because there had been no rain that night, Strickland contends that the floor had just been mopped. Kroger had a contract with Mitchler Floor to clean the floors. Seven nights a week, between the hours of 11:00 p.m. and 7:00 a.m., Mitchler Floor was responsible for “dust mopping, spot mopping, buffing, scrubbing as needed and then periodic waxing and stripping off of wax.” Mitchler Floor hired a subcontractor, and, the night Strickland fell, Nicholas Jones cleaned the store.

(a) In its first enumeration of error, Kroger contends that it cannot be held liable for the negligence of an independent contractor. Accordingly, it asserts that the trial court erred in failing to direct a verdict in its favor as any negligence in cleaning the floor would be attributable either to Mitchler Floors or Jones, independent contractors over which Kroger had no control.

Contrary to Kroger’s contention, it “cannot insulate itself from liability simply by hiring an independent contractor to clean its floors.” This is so because, under OCGA § 51-2-5 (4), one who employs an independent contractor is liable for the acts and omissions of such independent contractor when the duty is imposed by statute. As the duty imposed on owner/occupiers to “exercise ordinary care in keeping the premises and approaches safe” is statutory, Kroger may be held liable for the negligence of the independent contractor hired to clean its floors if such negligence rendered the premises and approaches unsafe.

The case cited by Kroger, Feggans v. Kroger Co., does not require a different result. Indeed, in Feggans, this Court recognized that, unless Kroger delivered full control of its store to the cleaning company, it would still owe a duty to exercise ordinary care to keep the premises and approaches safe. Here, Kroger acknowledges that it did not deliver full possession and control of its store to the independent contractor. Thus, the trial court did not err in failing to grant a directed verdict on this basis.

(b) In its second enumeration of error, Kroger asserts that the trial court erred in failing to grant a directed verdict as there was no evidence that it had knowledge of a hazardous condition. Here, however, Kroger’s liability was predicated upon the negligence of the independent contractor, which is separate from its own liability.

Moreover, the evidence in this case demonstrates that the floor was wet as a result of having been cleaned. According to several witnesses, the entire foyer floor was wet. As it was not raining the night Strickland fell, the water was not tracked into the store. Thus, the water must have come from inside the store. Because the floor was uniformly wet with no puddles, it is unlikely that the floor was wet as a result of a spill. Accordingly, it was reasonable for the jury to infer that the floor was wet because someone had cleaned it. This is especially true given the evidence that Kroger retained a company to clean the floor during the time that Strickland was shopping. And, where a proprietor has authorized the mopping of the floor, it is presumed to have knowledge of the condition of the floor. Therefore, this claim of error presents no basis for reversal.

2. Kroger contends that the trial court erred in granting Strickland’s motion in limine. Prior to trial, Strickland moved to prohibit Kroger employees from testifying that the cleaning crews always put up signs warning of wet floors. Strickland argued that it is improper to allow a witness to testify as to the customs and habits of another. The trial court apparently agreed and excluded the testimony. Kroger asserts that the testimony should have been admitted to establish that Kroger had no reason to inspect the foyer for warning signs.

“The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” In this case, the trial court did not abuse its discretion in preventing Kroger employees from testifying regarding the custom of the cleaning crews. As a general rule, witnesses may testify about their habits, but not about the habits of others. Accordingly, we find no abuse of discretion in the trial court’s exclusion of such testimony.

Moreover, the trial court’s ruling did not preclude Kroger from introducing evidence establishing whether warning signs were routinely erected. Initially, we note that Jones, who was on Kroger’s pretrial witness list, could have testified as to his own habits. Also, Kroger employees could have testified regarding their own knowledge of sign placement. If those employees had seen the cleaning crew post signs while cleaning, such testimony clearly would have been admissible. Finally, we note that one Kroger cashier testified that, although she could not recall whether any signs were posted the night Strickland fell, “as a matter of practice they were.” Because the trial court’s ruling was legally correct and did not prevent Kroger from establishing a defense, we find no basis for reversal.

3. In its third and final enumeration of error, Kroger asserts that the trial court erred in instructing the jury that

where the owner or occupier has not delivered full possession and control of the floor to a janitorial contractor and the floor is jointly occupied by both the owner and occupier and the contractor, the owner or occupier is liable for negligent acts of its contractor.

Kroger objected to the instruction, arguing that it contradicted the trial court’s earlier instruction that an employer is generally not liable for the negligent acts of an independent contractor, that it was confusing, and that it was not adjusted to the facts of the case. On appeal, Kroger also contends that the instruction was not an accurate statement of the law.

Decided March 14, 2001.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for appellant.

Howard W. Jones, for appellee.

A trial court does not err in giving a jury instruction that “has been raised by the evidence, embraces a correct and complete principle of law, has not been substantially included in the general instructions given, and is specifically adjusted to the evidence.” For the reasons stated in Division 1 (a), the instruction given by the trial court represents an accurate statement of the law. Because the evidence raised the issue of Kroger’s liability for the negligence of the independent contractor, we fail to see how the trial court erred in instructing the jury accordingly. As for Kroger’s contention that the instruction was confusing, it fails to elaborate on this claim in its brief, and accordingly, such error, if any, is waived.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        K-Mart Corp. v. Jackson, 239 Ga. App. 176 (521 SE2d 93) (1999).

        Treglown v. K-Mart Corp., 245 Ga. App. 428, 429 (537 SE2d 173) (2000).

       Id.

        Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 442 (1) (491 SE2d 881) (1997) (physical precedent only); see Johnson v. Kimberly Clark, 233 Ga. App. 508, 510 (504 SE2d 536) (1998).

       OCGA § 51-3-1.

       See Bruno’s, supra; Johnson, supra; FPI Atlanta v. Seaton, 240 Ga. App. 880, 886 (5) (a) (524 SE2d 524) (1999) (physical precedent only).

       223 Ga. App. 47 (476 SE2d 822) (1996).

       Id. at 50 (1).

       See FPI Atlanta, supra at 887.

        See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980).

        Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 195 (518 SE2d 194) (1999).

       See Stephen W. Brown Radiology &c. v. Gowers, 157 Ga. App. 770, 783 (7) (278 SE2d 653) (1981); see also Feinberg v. Durga, 189 Ga. App. 733, 737 (3) (377 SE2d 33) (1988).

       See Hardy v. Tanner Med. Center, 231 Ga. App. 254, 257 (8) (499 SE2d 121) (1998) (jury charge that witnesses may testify from their own knowledge about custom or course of practice is a correct statement of the law).

       Although this testimony seems to violate the trial court’s ruling, Strickland did not object to it at trial.

        Joiner v. Lane, 235 Ga. App. 121, 122 (2) (508 SE2d 203) (1998).

       See Delaney v. Lakeside Villa, 210 Ga. App. 430 (2) (440 SE2d 668) (1993) (failure to except on a specific ground constitutes waiver).


author: Barnes, Judge.

text:
    A01A0103.
    CHEATWOOD v. THE STATE.
    (548 SE2d 384)
   Barnes, Judge.

Don Robin Cheatwood appeals his probation revocation, arguing that the trial court erred in admitting into evidence the results of Roche Diagnostic Corporation’s “OnTrack TesTstik” drug test as proof he violated the terms of his probation. Cheatwood also argues that the State presented insufficient evidence that the test was administered in a manner that ensured a reliable result. We conclude that the trial court did not err in finding that the State presented sufficient expert testimony to establish that the techniques and procedures of the OnTrack TesTstik “have reached a scientific stage of . . . verifiable certainty,” and that the test was administered in a manner that ensured a reliable result.

Cheatwood pled guilty on February 2, 1998, to selling methamphetamine in violation of the Georgia Controlled Substances Act. The trial court sentenced him to serve ten years on probation, and two of the conditions of his probation were that he would not violate any laws and would produce on demand a urine sample to be tested for controlled substances.

On January 20, 2000, Cheatwood reported to the probation office and discovered that all the probationers were being screened for drugs. He produced a urine sample in the presence of his probation officer. He then placed his sample cup, labeled with his name, on a table and gave his name and Social Security number to a second officer who recorded the information in a log sheet. A third officer used three separate OnTrack TesTstik devices on Cheatwood’s urine and testified that one test was negative for cocaine metabolites, one was negative for methamphetamine, and one was positive for marijuana. The testing officer then relayed the results to the second officer who marked the log accordingly to show that Cheatwood’s urine tested positive for marijuana.

After talking with his probation officer regarding the test results, Cheatwood signed a form denying he had used marijuana and requesting a confirmation test. He also initialed a section of the form confirming that the specimen to be tested further was his urine.

Stuart Bogema, who has a B.S. in chemistry and biology and a Ph.D. in pathology and toxicology, testified for the State regarding the OnTrack TesTstik. Dr. Bogema is certified with the American Board of Forensic Toxicology and the American Board of Clinical Chemistry and Toxicological Chemistry, and the trial court recognized him as an expert in the field of toxicology and drug identification without objection. He explained that “forensic toxicology” is the science of analyzing body tissues and fluids for drugs and poisons, the results of which are used in forensic proceedings. He has tested devices used to determine the presence of drugs in body fluids for seventeen years and has performed approximately half a dozen studies of different on-site testing devices over the last three years. He specifically evaluated the OnTrack TesTstik, along with other tests, as a consultant to the U. S. Postal Service.

Dr. Bogema explained the technology behind the test, which is “based on a principle called immunoassay, which uses what are called antibodies.” Antibodies are proteins produced by the human body, and certain antibodies bind to certain drugs. The antibodies are embedded into a membrane encased in a long plastic container that is dipped into a urine specimen for a few seconds and then pulled out. The urine migrates through the test strip to the membrane containing the antibody, where the chemical reaction or immunoassay takes place. A control line indicates when the specimen testing is completed, and the presence or absence of a blue line on the device indicates whether the urine sample contained the specific drug for which it was being tested.

The Postal Service study involved several hundred specimens tested for cocaine, marijuana, and methamphetamine. The OnTrack TesTstik was 100 percent accurate, Dr. Bogema testified, and was as good or better than nine additional immunoassay tests included in the study. In his opinion, based on his tests and findings, the OnTrack TesTstik was 100 percent reliable for testing marijuana or cocaine.

Following the parties’ presentation of evidence and argument, the trial court ruled:

After hearing the testimony of Dr. Bogema, the expert who was tendered as an expert and his qualifications were not objected to, I find that the techniques and procedures that he testified to have reached a scientific stage of. . . verifiable certainty, and, therefore, they’re admissible in evidence in a probation revocation such as we have before us here.

The trial court further noted that all three probation officers involved specifically remembered testing Cheatwood on January 20, 2000. Therefore, it concluded that the State carried its burden of showing by a preponderance of the evidence that Cheatwood violated the conditions of his probation as alleged and revoked 120 days.

1. Cheatwood argues that the trial court erred in admitting the test results into evidence, because the State failed to produce an expert witness who had tested Cheatwood’s urine and failed to produce the actual test stick or pictures of the test stick. He further argues that Dr. Bogema’s opinion as to the OnTrack TesTstik’s reliability was based on insufficient testing.

The test in Georgia for “determining whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law” was first set out in Harper v. State, 249 Ga. 519, 524 (1) (292 SE2d 389) (1982). Unlike other states that base admissibility on whether the technique has gained general acceptance in the applicable scientific community, in Georgia

it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure “rests upon the laws of nature.” The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions.

(Footnote omitted.) Id. at 525.

Our appellate courts have subsequently applied the “scientific stage of verifiable certainty” test to a number of procedures. In some instances, the appellate court addressed the procedure’s validity only as to the case on appeal. See, e.g., Caldwell v. State, 260 Ga. 278, 285 (1) (b) (393 SE2d 436) (1990) (testimony by ten expert witnesses demonstrated that DNA identification techniques were based on sound scientific theory); Izer v. State, 236 Ga. App. 282, 283 (511 SE2d 625) (1999) (absence of expert testimony regarding laser speed detection’s verifiable certainty required reversal).

However, “once a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace.” Hawkins v. State, 223 Ga. App. 34, 36 (1) (476 SE2d 803) (1996). Thus, in Hawkins we held that a trial court may admit evidence of the horizontal gaze nystagmus test in a DUI trial without first requiring expert testimony as a foundation for its admission. Id. at 38. Similarly, the Supreme Court of Georgia held that

trial courts may take judicial notice that the Intoximeter 3000 machine test results are based on accepted scientific theory or “rest upon the laws of nature”; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.

Lattarulo v. State, 261 Ga. 124, 127 (3) (401 SE2d 516) (1991).

We have addressed the scientific validity of the OnTrack TesTstik in three previous opinions. In two cases, Hubbard v. State, 207 Ga. App. 703 (429 SE2d 123) (1993), and Bowen v. State, 242 Ga. App. 631 (531 SE2d 104) (2000), the State presented no expert testimony to establish the test’s reliability or verifiable certainty. Because testimony regarding the test’s administration was insufficient to sustain the State’s burden of proof, we reversed both probation revocations. In Kendrick v. State, 240 Ga. App. 530, 532 (2) (523 SE2d 414) (1999) (physical precedent only), we reiterated that “the ontrack system for drug detection is not (yet) sufficiently recognized as reliable and so is not admissible evidence without expert testimony supporting its verifiable certainty,” although we affirmed the revocation on other grounds.

In this case, the State submitted expert testimony establishing the verifiable certainty of the test used. Thus, the trial court did not err in admitting the drug test results into evidence.

2. Cheatwood asserts the trial court erred in admitting the test results because the State presented “insufficient evidence that the actual test administered to appellant was done in a manner which ensured a reliable result.” He argues that, because the test sticks were not individually marked with the probationers’ names, they could have gotten mixed up. Finally, he contends that, without the actual test stick or a photograph of it, the only record of a positive finding consists of a plus symbol in the log sheet.

Decided March 14, 2001.

Daniel B. Simon III, for appellant.

James R. Osborne, District Attorney, F. Andrew Lane, Jr., Assistant District Attorney, for appellee.

These arguments go to the weight of the evidence presented, not to its admissibility. Cheatwood handed his sample to the testing officer, who placed each urine sample on a paper towel. The probation officer testified that he was careful to keep the test sticks on the paper towel containing the labeled urine cup. Cheatwood was never out of sight of the urine sample, sitting three to five feet from the table during the testing process. All three probation officers specifically remembered Cheatwood and his positive test result. “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” (Citations and punctuation omitted.) Cordle v. State, 173 Ga. App. 369, 370 (326 SE2d 557) (1985). We find no such abuse here and no error by the trial court.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A0511.
    PARKER v. COOK.
    (548 SE2d 387)
   Barnes, Judge.

E. E. Parker appeals the trial court’s grant of summary judgment to Ruby Cook on a promissory note, arguing that the underlying principal was a gift, not a loan. Because the trial court did not err in concluding that the note was unambiguous and not susceptible to interpretation through parol evidence, we affirm the grant of summary judgment.

Cook gave Parker two checks, one for $35,000 on March 13, 1990, and another for $45,000 on April 4, 1990. On April 11, 1990, Parker signed a promissory note, agreeing to pay interest from March 16, 1990, at nine percent interest per year, with the sum of $86,000 principal and interest due January 16,1991. On January 26,1999, Cook’s attorney made a demand to Parker for the principal and interest to date, noting that attorney fees would be due unless the total was paid within ten days. Parker did not pay, Cook filed suit and moved for summary judgment, and the trial court granted judgment to Cook for $80,000 principal, $75,070.75 interest, $23,260.63 attorney fees, and post-judgment interest pursuant to OCGA § 7-4-12.

Decided March 14, 2001.

Nelson, Gillis & Smith, James F. Nelson, Jr., Donald W. Gillis, James S. Smith, Jr., for appellant.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Parker argues on appeal that the $80,000 Cook gave him was a gift and that Cook then told him she wanted some “paper” to show that she no longer had the money. In his affidavit in response to Cook’s summary judgment motion, he further explained that Cook told him the promissory note would not ever amount to anything. Parker states that Cook told him, “It’s just in case the income tax people want to know.”

However, “[w]here a written contract is plain and unambiguous, it is the only evidence of what the parties intended and understood by it.” (Citations and punctuation omitted.) Security Trust &c. Assn. v. Gill Sav. Assn., 197 Ga. App. 242, 245 (398 SE2d 382) (1990). “[I]n the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note.” (Citation and punctuation omitted.) Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 504 (1) (497 SE2d 269) (1998). Further,

where parties reduce their agreement to writing, all oral negotiations antecedent thereto or contemporaneous therewith are merged into, terminated, and extinguished by the writing, and parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.

(Footnote omitted.) Long v. Beach, 242 Ga. App. 448, 449 (529 SE2d 901) (2000).

The promissory note at issue here is not ambiguous, and Parker’s representations regarding Cook’s intent before he signed the contract are inadmissible to vary its terms. The trial court did not err in granting summary judgment to Cook.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Johnny W. Warren, for appellee.


author: Phipps, Judge.

text:
    A01A0693.
    GLAZA v. MORGAN.
    (548 SE2d 389)
   Phipps, Judge.

We granted Joel Glaza’s application for discretionary appeal of an order of the Superior Court of Gwinnett County awarding attorney fees to his former wife, Jamie Morgan, in her child custody modification action against him. Because we find no basis for the award under Georgia law, we reverse.

Glaza and Morgan were divorced in the Superior Court of Cherokee County. Their divorce decree provided for joint custody of their minor child and named Morgan as the primary custodian and ultimate decision maker. Glaza was given custodial visitation with the child on alternating weekends from 6:00 p.m. on Friday until 9:00 a.m. on Monday and each Wednesday from 6:00 p.m. until either Thursday or Friday at 9:00 a.m. (depending on whether he had custody of the child the following weekend).

After Glaza moved from Fulton County (where Morgan resides) to Gwinnett County, Morgan brought this action against him there. In her complaint, Morgan sought to discontinue the joint custody arrangement and eliminate weeknight visitation because of Glaza’s change of residence. She also charged Glaza with contempt of the parties’ divorce decree for refusing to disclose his business and residential addresses and for failing to pay child support.

Glaza denied that there had been any material change in circumstances warranting reduction of his custody rights. He also asserted that there was a pending contempt action by Morgan against him in the Cherokee County Superior Court. In addition, he filed a counterclaim seeking modification of the divorce decree to allow his wife or mother to pick up the child for visitation when it is inconvenient for him to do so.

Morgan offered to settle the case by retaining essentially the same weekend visitation schedule, but substituting afternoon and evening visits on Wednesdays in place of overnight stays. Glaza responded with a suggestion that the parties mediate the dispute, but Morgan refused. Glaza then made a settlement offer that would have expanded rather than restricted the amount of time the child spends with him on weeknights.

Approximately two weeks later, the case came on for a hearing. From the bench, the court determined that there had been a substantial change in condition warranting modification of the parties’ divorce decree. The court ruled that Glaza’s custody would be changed to Wednesday nights from after school until 8:00 p.m. and on alternating weekends from Friday after school until Sunday at 6:00 p.m. The court also ruled that joint legal custody would remain in effect and that Glaza’s wife and mother could pick up the child on days when Glaza has custody. Other changes in the rather detailed summer, holiday, and birthday visitation schedule necessitated entry of a lengthy order, which Morgan drafted. One month after the hearing, the court entered the order with a number of handwritten insertions and deletions.

On the date the order was entered, Morgan filed a motion for attorney fees under OCGA § 9-15-14 (b) based on allegations that Glaza had acted in a vexatious, stubborn, and litigious manner by ignoring her settlement offers and making no reasonable counteroffers. Glaza then requested attorney fees under OCGA § 9-15-14 (b) for having to defend both Morgan’s complaint and her request for attorney fees. The court entered an order finding that “relative equities would be best served” by granting Morgan’s attorney fee request and denying Glaza’s. The court awarded Morgan $2,498 in fees.

Under OCGA § 9-15-14 (b), a court may assess reasonable and necessary attorney fees and expenses of litigation if it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification, i.e., was substantially frivolous, groundless, or vexatious. A decision under OCGA § 9-15-14 (b) must be sustained unless the trial court abused its discretion.

We interpret the order appealed as a refusal to award attorney fees to either party under OCGA § 9-15-14. Because the court granted essential relief Morgan requested in her complaint, we cannot say that her action against Glaza was unjustified. Because the court granted Glaza relief which Morgan had not agreed to, we cannot say that Glaza acted in bad faith by refusing to settle the case. Consequently, the court did not abuse its discretion in denying either Glaza’s OCGA § 9-15-14 request for attorney fees incurred by him in defending this action or Morgan’s similar request for attorney fees incurred by her as a result of the parties’ inability to reach a settlement.

This brings us to Morgan’s argument that statutory provisions other than OCGA § 9-15-14 authorized the court’s award of attorney fees to her. We cannot agree.

Under OCGA § 19-6-2 (a), cited by Morgan, the court in its discretion may award attorney fees as a part of the expenses of litigation where

Decided March 14, 2001.

Turner, Turner & Turner, Nelson G. Turner, for appellant.

Miles W. Rich, for appellee.

the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights. . . .

This action was not for divorce or alimony. Although it was styled as an action for contempt based on Glaza’s noncompliance with disclosure and child support provisions of the parties’ divorce decree, and although it is undisputed that Glaza had not complied with these provisions, the contempt issues were not adjudicated because of the pendency of another contempt action between the parties. Under these circumstances, the court was not authorized to award attorney fees under OCGA § 19-6-2 (a).

OCGA § 19-6-19 (d), also cited by Morgan, authorizes an award of attorney fees and litigation expenses to the prevailing party in proceedings for the modification of alimony for the support of a spouse or child. This is not an alimony modification action. It is a child custody modification. Aside from OCGA § 9-15-14, we are not aware of, nor have we been cited to, any provision of law for the award of attorney fees in proceedings such as this.

Because this was arguably an action for contempt, the court did not abuse its discretion in denying Glaza’s OCGA § 9-15-14 request for attorney fees incurred by him in defending Morgan’s attorney fee motion. The court did err, however, in awarding attorney fees to Morgan based on equitable considerations.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

        Harkleroad & Hermance, P.C. v. Stringer, 220 Ga. App. 906, 908 (3) (472 SE2d 308) (1996).

       Id. at 907.

       See Peacock v. Adams, 230 Ga. 774, 775 (2) (199 SE2d 254) (1973).


author: ELDRIDGE, Judge.

text:
    A01A0144.
    BLACK v. THE STATE.
    (548 SE2d 9)
   ELDRIDGE, Judge.

Following a bench trial, Terrance C. Black was found guilty of driving under the influence of alcohol (“BUI”) — less safe driver; DUI — excessive blood alcohol concentration (“BAC”); and following too closely. The trial court sentenced Black on the DUI — excessive BAC count of the accusation. He appeals, and finding no merit to his claims of error, we affirm his conviction.

1. In his first two enumerations of error, Black contends the implied consent notice given on the scene by the arresting officer was both untimely and incorrectly recited. However, we have reviewed the transcript with regard to the alleged preservation of these errors for appeal. At the time the arresting officer testified, no objection was raised as to the timeliness of the implied consent notice or to the content thereof. Further, the Intoximeter operator testified about Black’s breath test and its result, which showed a 0.186 BAC. No objection was registered to this testimony. It was only at the time the State sought introduction of State’s Exhibit 1, the computer printout of Black’s Intoximeter test result, that Black objected. In so doing, Black listed numerous reasons for exclusion of State’s Exhibit 1:

[Defense Counsel:] Your Honor, numerous objections, foundational and otherwise. As far as his permits, I would like to, as far as his operating permit perhaps I can take him on voir dire on that issue. But other than that, Implied Consent was not timely read. Implied Consent was not properly read. I would renew my objection for your Honor not excluding the evidence earlier in the day [based on an alleged discovery violation]. But I would like to be able to ask him some questions on foundational issues having to do with his operating permit.

Thereafter, Black voir dired the Intoximeter operator regarding the validity of his operating permit and presented legal argument that the operator’s certificate should be introduced as the “best evidence” of its validity. The trial court admitted State’s Exhibit 1 over such objection. “It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” On the record before this Court, we cannot say the instant enumerations of error regarding implied consent were fairly raised and/or ruled upon by the trial court. Black buried his claims regarding the timeliness and content of the implied consent notice into an oral laundry list of objections regarding the introduction of the Intoximeter printout; he then presented legal argument only on the validity of the Intoximeter operator’s permit in relation to the admissibility of the printout; and thereafter he obtained an express ruling only on the validity of the Intoximeter operator’s permit in relation to the admissibility of the printout. Such tactic cannot be seen as securing a ruling from the trial court regarding the timeliness and/or content of the implied consent notice.

Decided February 27, 2001

D.U.I. Fulton Traffic Court. Before Judge Jackson.

Morriss, Lober & Dobson, Bruce F. Morriss, Daniel Shim, for appellant.

Here the record shows that, after securing a ruling on the validity of the operator’s permit, Black did not redirect the trial court’s attention to the issue of implied consent; he did not explain to the trial court his basis for believing the implied consent was untimely and/or not accurate; he did not present legal argument on such issues; and he did not secure a specific ruling with regard to these issues. Nor did Black raise such issues on motion for new trial in order to obtain a ruling from the trial court.

Thus, the trial court was never called upon to make a ruling on the grounds now argued by appellant [ ] before this Court. It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial. This allegation of error is waived.

2. Black’s conviction for DUI — less safe driver was merged into his conviction for DUI — excessive BAC. Accordingly, any claims of error with regard to sufficiency of the evidence demonstrating Black was a less safe driver are rendered moot.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Joseph J. Drolet, Solicitor, Vickie S. Madden, Assistant Solicitor, for appellee.

        Watts v. State, 155 Ga. App. 376, 377 (271 SE2d 29) (1980). Accord Bell v. Owens, 230 Ga. App. 826, 828 (3) (497 SE2d 591) (1998); Obi v. State, 230 Ga. App. 476, 477 (3) (496 SE2d 556) (1998); Peterson v. State, 212 Ga. App. 31, 33 (3) (441 SE2d 267) (1994); Harris v. State, 190 Ga. App. 343, 348 (4) (b) (378 SE2d 912) (1989).

       (Citations and punctuation omitted.) Jones v. State, 225 Ga. App. 673, 676 (484 SE2d 702) (1997).

       See, e.g., Carter v. State, 237 Ga. App. 703, 710 (6) (516 SE2d 556) (1999).


author: Eldridge, Judge.

text:
    A01A0554.
    WILLIAMS v. THE STATE.
    (548 SE2d 350)
   Eldridge, Judge.

A Thomas County jury found Carl Williams guilty of child molestation for acts he perpetrated against his eight-year-old niece. He appeals. On review, we affirm.

1. In a two-prong attack, Williams contends he received ineffective assistance of counsel at trial and that the trial court erred in finding otherwise.

(a) First, Williams claims his trial attorney was ineffective for failing to call parole officer Van Landingham at a Uniform Superior Court Rule 31.3 (B) similar transaction hearing. Williams contends Van Landingham would have testified that Williams was in jail on a parole violation during the summer of 1985 when the similar transaction allegedly occurred, thereby negating the required showing that Williams was the perpetrator of the independent offense.

In that regard, the similar transaction witness could not remember in which month the 1985 independent offense happened. The witness testified it occurred in the summer, but she also repeatedly stated she could not remember exactly when the incident happened, except that she thought it was “warm” on the day in question. However, she was completely certain that Williams, who is her brother-in-law, was the perpetrator of the independent offense to which she was an eyewitness. Thus, the State established the requisite element of identity under the Williams v. State criteria. Van Landing-ham’s testimony, if as alleged by Williams, would be impeaching as to the time frame only, affecting the weight and not the admissibility of such evidence under Williams.

Notably, however, there is also no testimony in the record from parole officer Van Landingham. He was not called at trial or at the motion for new trial. Thus, there is no evidence in the record that Van Landingham would have testified as Williams alleges, i.e., that Williams was incarcerated during the summer of 1985. Apparently, Williams was in jail on a parole violation. While the record contains a parole certificate showing the date of his release as October 31,1985, there is nothing on the certificate to indicate when Williams was picked up for the violation or how long he was incarcerated therefor. Williams’ defense attorney suggested he was arrested on the parole violation “[a]round Christmas” of 1984; however, Williams testified that he “can’t give nothing accurate” because the information was on his parole records, which were not before the court. And, regardless of defense counsel’s or Williams’ statements, there is absolutely nothing in the record before us to indicate how parole officer Van Landingham would have testified in this regard.

(b) At trial, Williams’ defense was that he was simply brushing the victim off after a fall and checking her for injury. He denied ever touching the victim with the intent necessary for a child molestation conviction, i.e., the “intent to arouse and satisfy the sexual desires of either the child or the person.” Thus, Williams contends that his attorney was ineffective for failing to request a jury charge on the lesser offense of sexual battery.

However, if the jury had believed Williams and had not found the requisite intent to convict for child molestation, Williams would have been guilty of nothing. This Court has recognized that a determination by trial counsel “to pursue an all-or-nothing defense [is] a matter of trial strategy.”

Notwithstanding, Williams did not call his trial attorney to testify at the motion for new trial regarding either of the instant allegations of ineffective assistance of counsel. Accordingly, Williams made no affirmative showing that the purported deficiencies in his trial counsel’s representation “were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.”

[T]rial counsel did not testify at the hearing on [Williams’] motion for new trial, nor was [she] subpoenaed to appear. Absent an affirmative showing that trial counsel’s purported deficiency was indicative of ineffectiveness, [Williams] has not met his burden of overcoming the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. It is well established that the burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.

On the record before us, we cannot say the trial court’s finding at the motion for new trial that Williams received effective assistance of counsel is clearly erroneous.

2. Williams claims the trial court’s remark prior to recessing for the day, “I hope we won’t have to declare any mistrial or anything. We won’t do that,” somehow coerced the jury into reaching a verdict. However, there was no objection at trial to this innocuous comment, and Williams is not claiming error under OCGA § 17-8-57. “A defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action.” Accordingly, the failure to object at trial waives the instant contention on appeal.*

3. Williams contends the “Allen charge” given to the jury coerced the verdict.

Giving eon Allen charge after the jury has begun its deliberations has been approved in numerous decisions of the Supreme Court of Georgia and this Court. “The issue in reviewing such charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.”

Here, the jury did not indicate that they were hopelessly deadlocked or wished to discontinue deliberations prior to giving such charge. The trial court did not urge the jury to decide the case one way or the other, and the Allen charge as given instructed the jury that the verdict “must be the conclusion of each juror and not mere acquiescence or to get together or reach agreement.” The trial court instructed the jury “to continue your deliberations and ask you if you, if you can, to reach an agreement which is fair and which is just and which you all can conscientiously say is the verdict of all twelve of you.” Williams did not object to such charge and, in fact, explicitly waived exception to the charge after it was given. “Under the facts of this case, and considering the charge in its entirety, we find that the language of the charge was not coercive and that it did not place undue pressure on the members of the jury to abandon their convictions.” Consequently, this enumeration is without merit.

4. In his last enumeration of error, Williams contends that the State’s similar transaction notice was defective. By brief, Williams argues that “[w]hile a Notice of Similar Transaction is not necessarily defective if it doesn’t give a specific date, it is defective when the State COULD have given a more specific date and did not.” (Emphasis in original.) Williams further argues that the alleged deficiency in the notice harmed his defense because, “had the defendant known that the time period was specifically during the time in which he was incarcerated, he could have had Mr. Van Landingham testify to such at the similar transaction hearing.”

While this claim of error was raised in the written motion for new trial filed in superior court, at the hearing on the motion, Williams argued only that the lack of specificity in the date made the notice insufficient; Williams did not argue that the State was aware of a more specific date and withheld such information, as he does before this Court. Consequently, there is no testimony or evidence in the record on such issue. The trial court found Williams’ “lack of a specific date” argument meritless based on the numerous cases, especially sexual misconduct cases, that have held “[s]ince the State did not have a specific date of the similar transaction, it complied with USCR 31.3 by providing [defendant] with the information it had.”

Because this issue was not argued at the hearing, we have nothing in the record before us that demonstrates the State “COULD” have been more specific regarding the date of the similar transaction incident, but withheld such information. And as discussed in Division 1 (a), supra, the record shows the similar transaction witness was unclear as to the specific date on which the independent offense actually occurred, giving rise to the inference that the State provided Williams with the information it had at the time.

Pretermitting the above, Williams’ claim of harm because Van Landingham was not at the similar transaction hearing must fail for the reasons also discussed in Division 1 (a), supra. “[H]arm as well as error must be shown affirmatively by the record to obtain reversal.” Williams, at best, presents this Court with mere speculation and conjecture as to what Van Landingham’s testimony would have yielded, both in substance and impact. “Harm cannot be shown by mere speculation and conjecture unsupported by the record.”

Decided March 1, 2001

Harold B. Baker, for appellant.

J. David Miller, District Attorney, James E. Hardy, Robert R. Auman, Robert D. Jewell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       The witness entered a bedroom in her mother-in-law’s house and discovered Williams with another nine- or ten-year-old niece: “and he was on top other with her shirt up and he was sucking her breasts.”

        Rary v. State, 228 Ga. App. 414 (1) (a) (491 SE2d 861) (1997) (“absolute proof is not required that a defendant committed the offense in a similar transaction. Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it. [Cits.]”) (punctuation omitted).

       In that regard, the defense subpoenaed Van Landingham to trial. Williams testified that his attorney strategically advised against calling Van Landingham to testify, since to do so would open the door to Williams’ criminal record.

       OCGA § 16-6-4 (a).

        Turner v. State, 237 Ga. App. 642, 645 (516 SE2d 343) (1999).

        Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990); see also McCarthy v. State, 196 Ga. App. 839, 841 (4) (397 SE2d 178) (1990); Allsop v. State, 196 Ga. App. 379, 381-382 (396 SE2d 47) (1990); Balduf v. State, 190 Ga. App. 233 (378 SE2d 409) (1989).

       (Citation omitted.) Smith v. State, 238 Ga. App. 605, 606 (2) (520 SE2d 13) (1999).

       See Paul v. State, 272 Ga. 845 (537 SE2d 58) (2000) (wherein a claim of error under OCGA § 17-8-57 is not waived by an attorney’s failure to object absent an initial examination under the “plain error” rule).

        Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996).

        McGuire v. State, 200 Ga. App. 509, 511 (4) (408 SE2d 506) (1991).

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       See Edmonson v. State, 212 Ga. App. 449, 451 (2) (442 SE2d 300) (1994).

       (Citations and punctuation omitted.) Concepcion v. State, 200 Ga. App. 358, 360 (408 SE2d 130) (1991).

       Id.

       See, e.g., Black v. State, 255 Ga. 668, 671 (2) (341 SE2d 436) (1986).

       Williams does not contend that the ten-year time span between the independent offense and the case-in-chief made the independent offense too attenuated from the acts perpetrated against the instant victim. Nor does he challenge the similarity of the independent offense.

       (Punctuation omitted.) Kinney v. State, 234 Ga. App. 733, 735-736 (3) (506 SE2d 441) (1998).

       (Punctuation and emphasis omitted.) Bell v. State, 226 Ga. App. 271, 273 (486 SE2d 422) (1997).

        Evans v. State, 233 Ga. App. 879, 880 (506 SE2d 169) (1998).