author: Pope, Presiding Judge. Eldridge, Judge,

text:
    A99A1016.
    In re HEALY.
    (526 SE2d 616)
   Pope, Presiding Judge.

Attorney Timothy P. Healy was convicted of direct criminal contempt and appeals. In his sole enumeration Healy claims that the court erred in finding that Healy had committed a contemptible act. We conclude that Healy’s behavior did not constitute criminal contempt and reverse.

This case arose during Healy’s representation of Clint Shurtleff on a murder case in which the child victim had died as a result of a blunt trauma to his head. The first trial of the case resulted in a hung jury. During the second trial, the State called as an expert witness the Crime Lab’s chief medical examiner, James Dawson, who had performed the autopsy on the victim. Dawson testified that he could not determine if the child’s death was accidental or if the child had been a homicide victim. Dawson also testified that he consulted Kris Sperry, who replaced Dawson at the Crime Lab, about the cause of the death of the child.

Next, Healy cross-examined Dawson. Healy asked Dawson if he had previously testified in this case, and Dawson stated that he had. In response to Healy’s question, Dawson then acknowledged that Sperry did not testify in the earlier trial. During this exchange Healy asked Dawson: “And the last time you testified in this case without Dr. Sperry being around to help in this search for the truth my client was not convicted, was he?”

The prosecutor objected to this question, and the judge called the attorneys to the bench. The judge then excused the jury from the courtroom, and the prosecutor stated he believed that Healy’s question was calculated to lead to a mistrial. Healy explained that the question went to Sperry’s credibility as a witness who was brought into the case only after the State was unable to convict Shurtleff in the first trial. Healy said that he thought the State was creating an erroneous impression with the jury regarding Sperry’s involvement and that he was trying to correct the misimpression.

The court then asked Healy for authority in support of allowing the jury to know the result of the first trial. When Healy was unable to provide a citation, the court stated that it would have a ten-minute recess during which Healy was to go to the law library and find a citation to support his position.

After the recess, Healy was unable to cite any direct authority for his position. The prosecutor argued that though the State was willing to stipulate that the case had been tried before, Healy should not have told the jury that the previous verdict was “not guilty.” Next, the court allowed Healy to speak on his own behalf. After Healy argued, the court found Healy in contempt and stated that the sentence would be determined at the conclusion of the case, after a hearing. The jury then returned to the courtroom, and the court instructed the jury to disregard the objectionable question.

Several weeks later, the court entered an order which held Healy in direct criminal contempt and sentenced him. In its order, the court noted that Healy’s question, “elicited testimony that his client was not found guilty at said previous trial.” The court found that this conduct interrupted and interfered with its ability to administer justice; the court also found that Healy’s conduct was intentional.

In his sole enumeration, Healy argues that the court erred in finding him in contempt because his conduct was not inappropriate and did not imperil the administration of justice. We first note that, contrary to the representations otherwise, the record shows that Healy referred in his question to the fact that his client had not “been convicted” in the previous trial. Healy did not state that his client had been found “not guilty” in the previous trial, as the State contends, nor did his question elicit testimony to that effect, as the trial court stated in its order. Healy argues that the question he asked of Dawson was not improper and that, accordingly, the evidence regarding the contempt was insufficient. As stated above, we conclude that Healy’s allegedly offensive question, standing alone, did not justify the finding of contempt.

The appropriate standard of appellate review for a criminal contempt conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted; emphasis in original.) In re Bryant, 188 Ga. App. 383, 384 (2) (373 SE2d 74) (1988).

With respect to the substance of criminal contempt: “[c]riminal contempt is that which involves some disrespectful or contumacious conduct toward the court.” (Citations and punctuation omitted.) In re Henritze, 181 Ga. App. 560, 562 (353 SE2d 58) (1987). OCGA § 15-1-3 (1) provides that every court has the power “ [t] o preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings.”

The power to summarily adjudicate and punish for direct criminal contempt is derived from the court’s authority to maintain courtroom order and decorum. “During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Dowdy v. Palmour, 251 Ga. 135, 141-142 [(2) (b)] (304 SE2d 52) (1983).

In re Shafer, 216 Ga. App. 725 (455 SE2d 421) (1995).

The court set forth more particulars regarding the evidence necessary to sustain a contempt conviction in In re Shafer, stating:

[i]n a summary contempt proceeding, objectively observable and describable behavior that causes an articulable interference with the administration of justice must be demonstrably present. Both the bad conduct and its adverse impact must be set forth with specificity in the ruling by the court that finds as a matter of fact that no justification exists for the alleged contemnor’s behavior. If these procedural steps are taken verbally, as is usually the case with a court trying to restore some immediate order in its proceedings, the judge must as soon as possible create a written record that preserves the following: (1) the notice to the perpetrator of the offensive conduct subject to being viewed as contemptuous due to its actual or imminent adverse impact; (2) a detailed description of the bad acts committed or omitted by the perpetrator despite a contemporaneous warning by the court to refrain; (3) an explanation of the deleterious impact on the court’s operations or its integrity; (4) a recitation of the perpetrator’s reasons given as justification for the questionable conduct; (5) a finding of fact by the judge of direct conduct interfering with the court’s administration of justice, or imminently threatening such consequences; and (6) an order declaring the respondent in contempt of court and imposing a statutorily authorized sanction.

(Emphasis in original.) 216 Ga. App. at 726 (1).

Although, unlike in this case, in In re Shafer there was no transcript of the behavior which constituted the alleged contempt, the guidelines the court set forth in that case illuminate our inquiry here. And the problem with Healy’s allegedly contemptuous behavior is evident: Healy’s question, in and of itself, was not sufficiently offensive to warrant the finding of contempt. While we do not condone Healy’s interjection of the first trial into the second, the act of asking this question — standing alone — is not sufficient evidence to sustain the contempt conviction.

In asking the objectionable question, Healy did not usurp the court’s authority or interfere with the administration of justice. There is no indication from the record that the parties were instructed before Healy’s question to refrain from mentioning the first trial, nor is there any indication that Healy repeated the offensive behavior. In other words, Healy did not defy any instruction from the court in asking the question; he was simply defending his client by trying to impeach Dawson.

We also note that given the facts of this case, no harm resulted from Healy’s question. In fact, after the question, the State stipulated that Healy could mention the first trial — the State simply wanted to bar him from stating the results of that trial. But, even without the stipulation, the jury had heard that there had been a previous trial; for example, earlier in Healy’s cross-examination of Dawson, Healy asked without objection whether Dawson had “testified before in this case.” Clearly, the jury could figure out that Shurt-leff had not been convicted, simply by virtue of the fact that he was being tried again.

Although it is conceivable that a criminal conviction for contempt could be supported by one improper question, here the question Healy asked does not constitute a sufficient predicate for contempt, and the finding must be reversed. While the dissent correctly notes that a trial court does not operate in a vacuum, this court cannot create facts to support a finding of contempt when those facts are not clear from the record. There is nothing in the portions of the record from which the dissent quotes to indicate that Healy was doing anything other than zealously representing his client. And, though the dissent warns against making trial judges anxious about the exercise of their authority, we should also be cautious about making counsel unduly anxious about their zealous representation of clients. While it is not always necessary that a trial court instruct or warn counsel before finding him in contempt, in this case the trial court should have warned Healy before making its finding.

Judgment reversed.

Johnson, C. J., Smith and Barnes, JJ., concur. Blackburn, P. J., Eldridge and Ellington, JJ., dissent.

Eldridge, Judge,

dissenting.

I cannot agree with my colleagues’ reversal of this case. First, I find the legal reasoning employed in order to support reversal to he dangerously flawed. Second, the evidence was sufficient to support the trial court’s order finding Healy in contempt of court.

1. (a) If the majority acknowledges that Healy’s knowing and intentional comment on the results of his client’s prior trial was improper and grounds for mistrial, then such would be an interference with the “administration of justice,” and this case would have to be affirmed. See OCGA § 15-1-4 (a) (1). Accordingly,. the majority must fashion a new rule to support reversal. To that end, the majority finds that Healy’s comment — standing alone — is not improper and thus “not sufficient to sustain contempt,” but concludes that “better practice dictates that the parties refrain from mentioning the previous trial.” (Emphasis supplied.)

To me, the majority does disservice to the bench and bar when it mischaracterizes Healy’s error as simply “mentioning the previous trial.” It is not the mentioning of the prior trial, but the result of the prior trial that comprised the improper conduct — which fact was recognized by the trial court and Healy.

It is a well established principle pronounced 110 years ago . . . that where a jury is apprized of a former verdict and such information might militate against the interest of a party to the case on trial, it is ground upon which a new trial may be granted the injured party.

(Citation omitted.) Hardwick v. Ga. Power Co., 100 Ga. App. 38, 46-47 (6) (110 SE2d 24) (1959).

The purpose is to prevent a jury from being influenced by the decision of a prior jury on the same issues. Hardwick v. Ga. Power Co., supra; Waters v. State, 25 Ga. App. 577, 579 (103 SE 835) (1920).

Moreover, until this case, the State’s mentioning of the result of a previous trial would be improper and would warrant a mistrial — without right of appeal. To truly appreciate the magnitude of the majority’s new rule of law where it is not improper to “mention the prior trial” — including the results thereof — imagine the prosecutor asking Healy’s question, duly paraphrased, on retrial of a criminal conviction after appellate reversal, “And the last time you testified in this case ... to help in this search for the truth, defendant was convicted, wasn’t he?” Now, from the date of this majority opinion, the above statement — standing alone — is not improper when asked by the State or the defense, although the “better practice dictates that the parties refrain from mentioning the previous trial.” Under the majority’s analysis, this statement now provides no grounds for mistrial, and the intentional making of this statement provides no grounds to hold a prosecutor or a defense attorney in contempt.

I believe, however, “the better practice” would be for this Court to adhere to long-standing principles of law when it comes to apprising the jury of the result of a prior proceeding. Under the law (as it stood before the majority’s holding), if either party mentions the results of a defendant’s prior trial, such comment is improper and warrants mistrial. As a consequence, the trial court’s finding that Healy both knew the comment was improper and intentionally made it provides a sufficient basis for mistrial and thus for contempt as an interference with the “administration of justice.” OCGA § 15-1-4 (a) (1).

(b) In addition, to support reversal, the majority uses the following flawed analyses which have the potential for long-range damage:

(i) There is no requirement in the statute that a trial court “warn” counsel or wait for counsel to “defy” an order of the court before the trial court may exercise control of misbehavior in the courtroom through contempt powers. OCGA § 15-1-4 (a) (1). The cases upon which the majority relies deal with OCGA § 15-1-4 (a) (3) relating to disobedience of the court’s orders or directives. Here, we deal with OCGA § 15-1-4 (a) (1), intentional misbehavior in the presence of the court, in asking a question that could mistry the case; as such, Healy’s conduct interfered with the administration of justice and was subject to contempt.

For the majority to meld the two subsections together and graft onto OCGA § 15-1-4 (a) (1) a requirement that a trial court cannot correct intentional misbehavior which could result in mistrial unless it is in defiance of an order or warning is to endorse chaos in the courtroom — a chaos that this Court does not have to live with. This implicit holding in the majority opinion does immense damage to the judiciary, violates the statute, and should be a cause of deep concern.

(ii) The majority’s “harmless error” analysis is inappropriate in reviewing a contempt conviction. Such analysis is a hindsight evaluation of the effects of Healy’s deliberately improper comment but does not address the trial court’s statutory right to punish Healy for such intentional, impermissible conduct under OCGA § 15-1-4 (a) (1).

(iii) The fact that Healy’s intentional comment on the results of the prior trial used the term “not convicted” instead of “not guilty” in no way makes the comment proper. The prohibited result was the same. Healy deliberately apprised the instant jury that another jury — “searching for the truth” — did not convict his client in a previous trial. The purpose was to influence the current jury’s consideration of Sperry’s testimony, as Healy conceded at trial.

The record shows that this is a straightforward case of contempt based on an improper, mistrial-worthy comment that Healy knowingly and intentionally made in violation of long-standing eviden-tiary principles, simply because Healy made the personal decision that it was necessary in order to give his client a “fair” trial.

The broad authority of a judge to preserve good order in the courtroom by the use of contempt power is well recognized and must be preserved if the courts are to perform their public duty. Therefore in-court statements and conduct are subject to reasonable control.

Garland v. State, 253 Ga. 789, 791 (325 SE2d 131) (1985).

In my view, this Court should hesitate to second-guess a trial court’s use of judicial authority to maintain order during the course of a jury trial. Each time we reverse a trial court’s legitimate exercise of contempt powers, we chip away at the foundation upon which our legal structure is built, make trial judges more anxious about the exercise of their rightful authority, and thereby place more of that authority into the hands of advocates: a ruinous result. Trial experience and the facts of this case demonstrate that the flame of “zealous representation” which so concerns the majority burns bright enough without this Court pumping the bellows through unauthorized reversal.

2. There is more than sufficient evidence of record to support the trial court’s order finding Healy in contempt of court.

Healy was able to get a hung jury on his client’s first murder trial in a large part because pathologist James Dawson could testify only that the cause of the victim’s death was “undetermined.” Then Kris Sperry, Georgia’s Chief Medical Examiner, was called in at Dawson’s suggestion for the second trial. Using his expertise as a forensic pathologist, Sperry was able to conclude that the victim’s death was a homicide which could not have occurred in the manner presented by the defense in the first trial. Sperry testified, repeatedly, to that effect in the second trial. The record shows that Healy was clearly upset about this result and grew increasingly frustrated with Dr. Sperry’s testimony. It was into this climate that the State called Dr. Dawson to the stand. Healy immediately made the following objection to Dawson’s testimony, “I’m going to object to anything he went into with [Kris Sperry]. That’s hearsay. It’s an out-of-court statement, and my client wasn’t able to participate in this rank hearsay, and I’m objecting to it.” On the State’s direct, Dr. Dawson testified that if he had had the information he now possessed, he would not have made the same “undetermined” death diagnosis. Then, Healy cross-examined Dr. Dawson:

[Healy:] And you’ve testified in murder cases before without Dr. Sperry’s help, haven’t you. . . . And in fact, you have testified before in this case, haven’t you? . . . And Dr. Sperry wasn’t with you, was he? . . . Mr. McCollum here was using you as his expert in — in connection with that proceeding, wasn’t he. . . . Alright. And Sperry was nowhere to be found, was he? . . . And the prosecuting attorney depended on your expertise and your opinion in — in that particular proceeding, didn’t he? . . . Alright. And the last time you testified in this case without Dr. Sperry being around to help in this search for the truth my client was not convicted, was he?

The State objected. The jury was removed. The trial court permitted Healy to explain his conduct:

[Healy:] The District Attorney in this case has created an utterly false impression to this Jury. . . . This District Attorney tried this case in February with this expert without Dr. Sperry, and the result was a hung jury. There was no Dr. Sperry around. There was no reliance on Dr. Sperry. . . . And now throughout Dr. Dawson’s testimony Mr. McCollum has intentionally and purposefully created a false impression to this Jury. He now wants the Jury to ignore the expertise of this — this witness. He has in effect he has impeached his own witness by the way he’s presented this case. And I believe that the only legitimate way and the fairest way to bring that to the Jury’s attention is to show that Sperry wasn’t around when Mr. McCollum prosecuted this case the first time, that only this witness was. And Jay [(the assistant district attorney)] put all his basket — all his eggs in this one basket in February. And it’s just not fair to the Defense to create that kind of impression to this Jury, that Sperry’s right and he’s wrong.
[Trial court:] And what — under what theory of law are you entitled to bring in before this Jury the result of that first trial?
[Healy:] Fairness and justice, Judge.
[Trial court:] I’m going to give you ten minutes to go to that law library and get me a citation of authority that will change my mind from declaring mistrial and finding Counsel in contempt.

Thereafter, Healy failed to find legal support for his position that “fairness and justice” permitted him to improperly comment on the results of his client’s prior trial. The trial court acceded to the State’s desire to keep the jury, gave Healy opportunity to make further response, held Healy in contempt for his deliberately improper comment, delayed punishment, and gave curative instructions to the jury.

Decided December 3, 1999.

Sean A. Black, for appellant.

Michael H. Crawford, District Attorney, for appellee.

Here, the evidence of record shows Healy admitted that he intentionally asked the improper question because he felt it was only “fair” to the defense. Moreover, the trial court noted that Healy is an experienced attorney. Healy knew the comment was improper, but he personally felt that justice required the asking. It was not Healy’s call to make. By knowingly and intentionally making the improper comment on the results of his client’s prior trial, Healy deliberately usurped the trial court’s authority to rule on the admissibility of evidence and deliberately interfered with the “administration of justice.” OCGA § 15-1-4 (a) (1). The trial court had the authority to so find. Id. Viewing the evidence in a light to uphold the trial court’s order — as this Court must do in this case — any rational trier of fact could have found Healy’s conduct contumacious. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); In re Irvin, 254 Ga. 251 (328 SE2d 215) (1985).

The judgment below should be affirmed.

I am authorized to state that Presiding Judge Blackburn and Judge Ellington join in this dissent.

       Nevertheless, we agree that better practice dictates that the parties refrain from mentioning the previous trial. Although the dissent contends that the principle that a new trial is required when the jury is told of a prior trial result is firmly established, it is difficult to find criminal cases which clearly and directly state that proposition. The seeming dearth of cases on this point further supports our conclusion that Healy’s question did not warrant an automatic finding of contempt.

       With respect, in my view, this is how “bad law” happens.

        Killen v. Sistrunk, 7 Ga. 281 (1849); Waters v. State, 25 Ga. App. 577, 579 (103 SE 835) (1920); Morris v. State, 49 Ga. App. 138 (174 SE 385) (1934); Brown v. State, 110 Ga. App. 401, 405 (138 SE2d 741) (1964); Allmond v. Johnson, 153 Ga. App. 59, 61 (264 SE2d 544) (1980); see also Kornegay v. State, 174 Ga. App. 279, 286 (329 SE2d 601) (1985) (Benham, J., concurring specially).

       Certainly there is no legal basis for the creation of a double standard for the defense and the State in this area: “ ‘The Constitution guarantees to every defendant a fair and impartial trial. Every litigant is entitled to the same right, and he does not get it where any influence except the law and the evidence [are] allowed to affect the minds of the jury.’ ” (Emphasis supplied.) Kornegay v. State, supra at 286.

       This Court should not endorse a process where creativity in informing a jury of the results of the prior trial is rewarded. The rule is no less violated when, for example, the State informs the jury, “And the last time you testified in this case ... to help in this search for the truth, defendant left in handcuffs, didn’t he?” Or the defense informs the jury, “And the last time you testified in this case ... to help in this search for the truth, defendant went free, didn’t he?” The prohibited result is the same, even without the majority’s talismanic “guilty” or “not guilty.”


source: Caselaw Access Project

author: Pope, Presiding Judge. Blackburn, Presiding Judge,

license: Public Domain

text:
    A99A1255.
    EZOR v. THOMPSON et al.
    (526 SE2d 609)
   Pope, Presiding Judge.

Elisa Ezor appeals the trial court’s order granting summary judgment to the defendants, Keith Thompson, M.D., Emory Clinic, Inc., and Emory Vision Correction Center, Inc., L.P., in the underlying medical malpractice action. Ezor contends that the trial court erred by applying the self-contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) to the testimony of her expert. We agree and reverse.

Ezor contends that Dr. Thompson committed medical malpractice because her visual acuity was diminished after Dr. Thompson performed five operations on her eyes over three months. Ezor attached Dr. James C. Hays’s affidavit to her complaint in compliance with OCGA § 9-11-9.1. In his affidavit, Dr. Hays stated that performing multiple automated lamellar keratoplasty (“ALK”) and radial keratotomy operations in such quick succession violated the applicable standard of care.

In his deposition Dr. Hays stated that the timing of the operations was against “conventional wisdom” and the “party line.” Dr. Hays added that there was a possibility that Dr. Thompson was “way out ahead” of his peers. He further deposed that the second procedure, an ALK, was performed too soon after the first but that he was “not sure” that Ezor was injured as a result. In a second affidavit filed after his deposition and in response to defendants’ motion for summary judgment, Dr. Hays stated that following his deposition he had examined and treated Ezor. He then reaffirmed his opinion that Dr. Thompson had violated the standard of care by not waiting three months before performing a subsequent operation on Ezor’s eyes and that such violation caused permanent injury to Ezor’s eyes.

The trial court determined that Dr. Hays’s deposition contradicted his original affidavit and that his second affidavit submitted after his deposition did not adequately explain the contradiction. Reasoning that Dr. Hays’s contradictory testimony was the only evidence in support of Ezor’s malpractice claim, the trial court applied Prophecy and granted summary judgment to the defendants.

1. This Court has been inconsistent when deciding whether to apply the self-contradictory testimony rule to expert witnesses. At least six of our cases have either applied or refused to apply this rule to experts, thereby creating a conflict in the law. In 1995, this Court twice held that the self-contradictory testimony rule does not apply to an expert’s affidavit. Ewers v. Cooper, 217 Ga. App. 434 (457 SE2d 705) (1995); Flanagan v. Riverside Military Academy, 218 Ga. App. 123 (460 SE2d 824) (1995). Ewers explained that an expert’s affidavit is not the testimony of a party, and therefore a contradiction between that expert’s testimony and the party’s legal position was not necessarily fatal to the party’s claims. 217 Ga. App. at 435. Flanagan held that an expert was not a party and therefore the rule did not apply. 218 Ga. App. at 126. In 1998, we again held that the self-contradictory testimony rule did not apply to the testimony of a non-party witness, which in that case was an expert. Sawyer v. DeKalb Med. Center, 234 Ga. App. 56-57 (2) (506 SE2d 197) (1998).

Three months after Flanagan, without analysis or explanation, and without citation to either Ewers or Flanagan, this Court in Ford v. Dove, 218 Ga. App. 828 (1) (463 SE2d 351) (1995), applied the rule to an expert witness for the first time. Two other cases simply followed Ford. Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997); Tuten v. Costrini, 238 Ga. App. 350, 353-354 (2) (a) (518 SE2d 751) (1997).

Thus, this Court must now resolve the question of whether the self-contradictory testimony rule should be extended to expert witnesses.

Our Supreme Court has never addressed this precise issue. Although it denied certiorari in three cases applying the Prophecy rule to expert witnesses, “ ‘[t]he denial of a writ of certiorari shall not be taken as an adjudication that the decision or judgment of the Court of Appeals is correct.’ ” (Citation omitted.) Adair v. Traco Division, 192 Ga. 59, 65-66 (14 SE2d 466) (1941). See also Ga. Const. of 1983, Art. VI, Sec. VI, Par. V.

But our Supreme Court has consistently enunciated different rules for handling the self-contradictory testimony of a party witness and a non-party witness. In 1895, when the Court established the self-contradictory testimony rule, it recognized that while a party has no power to control his witnesses’ testimony:

Where a party calls witnesses who conflict with each other in their sworn statements, he is not to be held responsible for the contradictions among them, for it is not within his power to prevent their occurrence; and a reviewing court will generally give to a party the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept.

Western &c. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494) (1895). The Court went on to explain, however, that while a party can control his or her own testimony, “a party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and, if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.” Id.

In 1975, the Supreme Court made plain that the self-contradictory testimony rule applies to parties and not non-party witnesses. Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975).

[The] holding [that] “the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him,” passing upon a motion for summary judgment, does not apply to contradictory statements by witnesses who are not parties to the litigation.

Id. at 223. And the court has been clear that it was applying the rule to a “party” or “party-witness.” Prophecy, 256 Ga. at 27-30. Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169 (496 SE2d 903) (1998); Korey v. BellSouth Telecommunications, 269 Ga. 108 (498 SE2d 519) (1998); Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287) (1992).

This Court also has held that the self-contradictory testimony rule does not apply to non-party lay witnesses. In 1934, we held that the rule “applies only to the testimony of a party to the case, and not to the testimony of a witness who is not such a party.” (Emphasis omitted.) Henry v. Nashville Chattanooga &c. R. Co., 50 Ga. App. 49, 50 (1) (176 SE 906) (1934). See also Painter v. Continental Ins. Co., 233 Ga. App. 436, 437-438 (1) (504 SE2d 285) (1998); Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997); English v. Crenshaw Supply Co., 193 Ga. App. 354, 359 (2) (387 SE2d 628) (1989).

In light of this long-standing precedent, we find no reason to apply a different rule to expert non-party witnesses. A party has no greater power to prevent contradictions between experts or within an expert’s testimony than with regard to fact witnesses. Although an expert may be paid, those circumstances may be explored on the stand, and any question of bias is for the jury. As we have previously held, the fact that an expert’s testimony may be contradictory goes only to the weight or credibility of the testimony and does not render it inadmissible. Furse v. O’Kon, 153 Ga. App. 703 (2) (266 SE2d 343) (1980); see also OCGA §§ 24-9-80; 24-9-85.

Moreover, our opinion in Tuten reveals some of the problems in extending the rule in this manner. Although Tuten states that the party did not offer a reasonable explanation for the expert’s contradictions, it does not state how this should be done. Should the party provide the explanation, or would the expert’s explanation be required? To complicate the matter further, Tuten applied the contradictory testimony rule to contradictions between the testimony of two expert witnesses. In such cases, who decides which expert was correct and who determines which witness must offer the explanation for the inconsistency? Nothing in Prophecy justifies extending the rule in that manner, and doing so undermines one of the basic functions of the jury: determining the credibility of witnesses. Turner v. State, 206 Ga. App. 683, 684 (426 SE2d 168) (1992).

The dissent seeks to narrowly draw the issue here and espouses a highly technical and unwarranted distinction between contradictory expert testimony involving an OCGA § 9-11-9.1 affidavit and other contradictory expert testimony. But there is no basis for such a distinction, and we should not enunciate two rules to be applied to contradictory expert testimony depending on the setting in which it occurs.

For the foregoing reasons, we hold that the self-contradictory testimony rule does not apply to the testimony of expert non-party witnesses. It follows that Ford, Abdul-Majeed, and Tuten must be overruled to the extent that they apply the self-contradictory testimony rule to an expert witness.

2. Dr. Hays’s affidavits together with his deposition raise issues of fact regarding Ezor’s malpractice claim against the defendants. In his second affidavit, Hays fully reasserted his opinion that Thompson’s performance was below the standard of care and that Ezor was injured as a result. We therefore reverse the decision granting the defendants’ motions for summary judgment on the malpractice claim..

Judgment reversed.

Johnson, C. J., McMurray, P. J., Smith, Ruf-fin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ., concur. Andrews, P. J, and Blackburn, P. J., dissent.

Blackburn, Presiding Judge,

dissenting.

I must respectfully dissent from the opinion of the majority in this case because it mischaracterizes the issue to be decided in this appeal. Contrary to the majority’s analysis, the issue is whether Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) applies, and summary judgment is thus appropriate, when the allegations of the expert’s affidavit required by OCGA § 9-11-9.1 are subsequently contradicted by the affiant’s own sworn deposition'testimony, and the plaintiff has no other evidence of malpractice. This issue is not one of first impression as this Court has directly ruled in the affirmative thereon in three separate occasions, and it should do so here.

In the present case, Elisa Ezor contends that Dr. Keith Thompson committed medical malpractice because her visual acuity was diminished after Dr. Thompson performed five operations on her eyes over three months. Ezor attached Dr. James C. Hays’ affidavit to her complaint in compliance with OCGA § 9-11-9.1. In his affidavit, Dr. Hays averred that performing automated lamellar keratoplasty operations in such quick succession violated the applicable standard of care.

However, in his deposition, Dr. Hays stated only that the timing of the operations was against “conventional wisdom” and the “party line.” Dr. Hays added that the “party line” could be wrong and that there was a possibility that Dr. Thompson was “way out ahead” of his peers. He further deposed that he was “not sure” that Ezor was injured by the rapid succession of the operations. In a second affidavit filed after his deposition and in response to defendants’ motion for summary judgment, Dr. Hays averred that following his deposition he examined Ezor and concluded that Dr. Thompson had violated the standard of care by not waiting three months before performing a subsequent opération on Ezor’s eyes and that such violation caused permanent injury to Ezor’s eyes.

In a very thorough order, the trial court determined that Dr. Hays’ deposition contradicted his original affidavit and that his second affidavit submitted after his deposition did not adequately explain the contradiction. Since Dr. Hays’ contradictory testimony was the only evidence in support of Ezor’s malpractice claim, the trial court granted summary judgment to the defendants. For the following reasons, the trial court acted appropriately, and its judgment should be affirmed.

1. Under OCGA § 9-11-9.1, a plaintiff cannot assert a professional malpractice claim unless a supporting affidavit is filed with the complaint. In the affidavit, the plaintiff’s expert must state the basis for the malpractice action. This Court has held in three separate malpractice cases involving OCGA § 9-11-9.1 affidavits that if the plaintiff’s expert, after giving an affidavit in which a violation of professional standards is contended, later testifies that there was no violation of professional standards, then in that narrow circumstance, the defendant is entitled to summary judgment based on an application of Prophecy. See Ford v. Dove, 218 Ga. App. 82 (463 SE2d 351) (1995); Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257) (1997); Tuten v. Costrini, 238 Ga. App. 350 (518 SE2d 751) (1999). Certiorari was denied by our Supreme Court in all three of these cases.

The rationale behind this result is that the plaintiff is not generally entitled to proceed with a professional malpractice case unless the complaint is supported by an expert’s affidavit as required by OCGA § 9-11-9.1. Where the plaintiff’s expert changes his/her testimony to the extent that it negates his/her expert affidavit, the effect of allowing the plaintiff to go forward, absent some other expert opinion of malpractice, would be to negate the expert affidavit requirements of OCGA § 9-11-9.1. An expert’s affidavit offered in response to a motion for summary judgment is evaluated under the evidentiary standard for summary judgment, not the pleading standard for affidavits. See Drozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 66 (4) (424 SE2d 632) (1992). None of the cases relied upon by the majority involves expert affidavits under OCGA § 9-11-9.1. Thus, they have no application to the narrow issue herein involved. The following cases involve summary judgment motions and expert affidavits pursuant to OCGA § 9-11-9.1, and each applied Prophecy to contradictions of such affidavits by the affiant:

In Ford v. Dove, supra, the basis for the malpractice action was the allegation in the expert’s OCGA § 9-11-9.1 affidavit that a cancerous tumor had not spread at the time of treatment and therefore could have been removed. At his deposition, the same expert abandoned that allegation and stated he could not assess the size of the tumor or whether it had spread at the time of treatment.

In Abdul-Majeed v. Emory Univ. Hosp., supra, the basis for the malpractice action was the allegation in the expert’s OCGA § 9-11-9.1 affidavit that, based on a reasonable degree of medical certainty, the decedent’s death could have been prevented. However, at his deposition the expert recanted his earlier statement saying it was more likely that there was a possibility that the death could have been prevented.

In Tuten v. Costrini, supra, the basis for the malpractice action was the allegation in the first expert’s OCGA § 9-11-9.1 affidavit that the patient had not given consent. Yet, at his deposition the first expert contradicted those allegations and said that the physician had obtained consent. This Court affirmed the trial court’s ruling.

The majority’s contention that the position in this dissent is contrary to existing case law is without merit. The inaccuracy of that position is shown by the fact that it is the majority, not the dissent, which must overrule cases in order to prevail. As stated previously, the majority mischaracterizes the issue involved. The true issue is whether Prophecy applies, and summary judgment is thus appropriate, where the contentions of the expert contained in the affidavit required by OCGA § 9-11-9.1 are subsequently contradicted by such affiant’s own sworn testimony, and the plaintiff has no other evidence of malpractice in a summary judgment proceeding. This Court has directly ruled in the affirmative on this issue on three occasions. It has never ruled otherwise.

The contention of the majority that Prophecy does not apply because this case involves an affidavit is without merit. Both opinions cite cases which involve third-person affidavits, which are inapplicable to this case because they do not involve contradictions by the affiant of those affidavits required by OCGA § 9-11-9.1, without which, a plaintiff could not proceed. None of the cases cited by the majority addresses this issue, and all are factually distinguishable.

The author of Abdul-Majeed now cites Ewers v. Cooper, 217 Ga. App. 434 (457 SE2d 705) (1995), and Flanagan v. Riverside Military Academy, 218 Ga. App. 123 (460 SE2d 824) (1995) (cert. denied), cases which predate his opinion, as authority for his present majority opinion. These cases were not followed, addressed or overruled in Abdul-Majeed. Neither were they addressed or overruled in Ford, or Tuten, and that was certainly for the same reason, that in all three cases it was recognized that Ewers and Flanagan are factually distinguishable, and that they involved different issues from that presented in Ford, Abdul-Majeed and Tuten.

The results in Ewers and Flanagan are perfectly appropriate, but they simply have no application to the facts or issue (contradiction by affiant of OCGA § 9-11-9.1 affidavit) involved in Ford, Abdul-Majeed, Tuten, or the present case:

Ewers v. Cooper, supra, involved pleadings in a third-party complaint. The expert did not contradict his own affidavit; the defendant! third-party plaintiff asserted contradictory positions. There we held that a party can assert inconsistencies in pleading, and the rule applies even when an OCGA § 9-11-9.1 affidavit must be filed because the nature of third-party practice assures some degree of inconsistency.

Flanagan v. Riverside Military Academy, supra, did not involve an affidavit required by OCGA § 9-11-9.1. Moreover, this Court found the expert’s affidavit and his deposition testimony were not even contradictory: “[W]e reject the defendants’ contention that Burton’s affidavit and deposition testimony are contradictory.” Id. at 125-126.

In Shiver v. Norfolk-Southern R. Co., 269 Ga. 168 (496 SE2d 903) (1998), Norfolk-Southern argued that the contradictory testimony rule applied to Shiver’s unsworn statement to a claim agent. The Supreme Court held that it was error to apply the contradictory testimony rule to unsworn, extrajudicial statements. Prophecy applied only to self-contradictory sworn testimony. In Korey v. BellSouth Telecommunications, 269 Ga. 108 (498 SE2d 519) (1998), the Supreme Court held that it was error to fail to look to the record as a whole, not just the contradictory testimony, to determine whether summary judgment was appropriate. In Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383) (1987), the Supreme Court, agreeing that Prophecy applied to movants as well as respondents, explained how to apply a party’s reasonable explanation for a contradiction to the evidence. We note that Miller v. Douglas, 235 Ga. 222 (219 SE2d 144) (1975) predates Prophecy, supra, and therefore does not address applying Prophecy in the circumstances presented by this case.

In Tuten, supra, this Court distinguished the cases relied upon by Ezor: Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997) (Prophecy does not apply to lay third-party witnesses) and Sawyer v. DeKalb Med. Center, 234 Ga. App. 54 (506 SE2d 197) (1998) (validity of original OCGA § 9-11-9.1 affidavit questioned in renewal action). See also Painter v. Continental Ins. Co., 233 Ga. App. 436, 437-438 (1) (504 SE2d 285) (1998) (.Prophecy inapplicable where lay third-party witness’ testimony contradicted party’s testimony). English v. Crenshaw Supply Co., 193 Ga. App. 354 (387 SE2d 628) (1989), relied upon by the special concurrence, similarly found that Prophecy was inapplicable to the testimony of lay third-party witnesses.

In comparison, Ford, Abdul-Majeed, and Tuten are directly on point with the present case — addressing the effect on summary judgment when the allegations of the affidavit required by OCGA § 9-11-9.1 are subsequently contradicted by the affiant’s own deposition testimony. The .present case is not distinguishable from the precedent set by Ford, Abdul-Majeed, and Tuten on either legal or factual grounds which might justify overruling them. Without such grounds, it is inappropriate to overrule those cases because we do not start fresh with each case. This case is the fourth to address this very issue, with the third (Tuten) having been decided less than six months ago. Our Supreme Court has denied certiorari in Ford, Abdul-Majeed, and Tuten. Because there has not been a change in the law since these three cases were decided, the cases are not factually distinguishable from the present case and the Supreme Court has not chosen to review the precedent cases on petition for certio-rari, stare decisis compels us to follow the prior case law.

Our Supreme Court has recently recognized that

stare decisis is essential to the performance of a well-ordered system of jurisprudence. In most instances, it is of more practical utility to have the law settled and to let it remain so, than to open it up to new constructions, as the personnel of the court may change, even though grave doubt may arise as to the correctness of the interpretation originally given to it.

Decided December 3, 1999

Ezor & Olens, Samuel S. Olens, Christopher J. McFadden, for appellant.

Etkind v. Suarez, 271 Ga. 352, 357 (519 SE2d 210) (1999). There has been absolutely no analysis or rationale offered by the majority which demonstrates that the prior decisions were erroneous and should be overruled on the basis of their contentions or analysis. Instead, they rely on cases which are factually and legally distinguishable and do not involve the same issue. It is inappropriate to overrule these cases based solely on arguments which have previously been rejected by our Supreme Court. Our Supreme Court has thus far chosen not to review the Ford, Abdul-Majeed, or Tuten decisions which this dissent follows and the majority overrules.

Given this history of the Supreme Court’s refusal to review this issue, and absent any rational analysis supporting the overruling of these cases, this Court is engaging in the rawest form of speculation and prediction to assume that our Supreme Court will change its position on this issue and overrule those cases it has declined to address in the past. It is certainly within the authority of the Supreme Court to reverse all three cases which this dissent has followed, and they are free to do so. Given this record however, this Court should not do so on the basis that the Supreme Court might do so.

Tuten, Abdul-Majeed, and Ford are valid precedent and are buttressed by the rationale underlying the Prophecy analysis. The trial court did not err in construing the contradictory testimony of Ezor’s expert against her.

2. Ezor argues in the alternative that the trial court erred because the contradiction was explained. However, Ezor did not explain the contradiction in the trial court but instead argued that Dr. Hays’ deposition testimony did not contradict his affidavit testimony. Therefore, it cannot be said that the trial court abused its discretion in holding that Ezor failed to explain the contradiction or in granting the defendants’ motion for summary judgment.

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

Allen, Weathington & Reeves, Hunter S. Allen, Jr., Gary R. McCain, Scott A. Miller, for appellees.

       The trial Court also granted defendants’ motion for summary judgment on Ezor’s battery claim; however, Ezor has not appealed that ruling.

       Compare Sawyer v. DeKalb Med. Center, 234 Ga. App. 54, 56-57 (2) (506 SE2d 197) (1998); Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 125-126 (460 SE2d 824) (1995); Ewers v. Cooper, 217 Ga. App. 434, 435 (457 SE2d 705) (1995) (refusing to apply the self-contradictory testimony rule to expert testimony in different settings) with Ford v. Dove, 218 Ga. App. 828 (1) (463 SE2d 351) (1995); Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997); Tuten v. Costrini, 238 Ga. App. 350, 353-354 (2) (a) (518 SE2d 751) (1999) (applying the rule to expert testimony).

         Also, Georgia law provides another remedy for possible perjured testimony by a witness. OCGA § 24-9-85 (b) states that under certain circumstances, testimony from a witness who has wilfully and knowingly sworn falsely shall be disregarded entirely.

       Our holding does not eliminate the possibility of summary judgment in a professional negligence case. A valid OCGA § 9-11-9.1 affidavit standing alone is not necessarily sufficient to withstand a motion for summary judgment. OCGA § 9-11-9.1 merely imposes a pleading requirement; it does not require that the affidavit be sufficient to satisfy the evi-dentiary standards of OCGA § 9-11-56. Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992); 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 287-288 (1) (378 SE2d 708) (1989). For example, an expert’s opinion in his or her affidavit may be based on an assumed fact. If that fact is incorrect, summary judgment may result.
      Also, it should be remembered that the purpose of OCGA § 9-11-9.1 “is to reduce the number of frivolous malpractice suits being filed....” 0-1 Doctors Mem. Holding Co., 190 Ga. App. at 288 (1). Thus many cases where summary judgment would have been appropriate presumably have already been eliminated.

       Plaintiff then obtained a second expert’s affidavit which the trial court ruled had no probative value, because no certified medical records upon which the expert relied were attached to the affidavit or contained in the record. Crawford v. Phillips, 173 Ga. App. 517, 518-519 (326 SE2d 593) (1985). In Division 2 (b) this Court stated thereafter that Prophecy applied to the second expert’s affidavit. This statement was dicta, was incorrect and should be disapproved.


author: Miller, Judge.

text:
    A99A1303.
    PULLIAM v. SOUTHERN REGIONAL MEDICAL CENTER, INC.
    (526 SE2d 573)
   Miller, Judge.

During the mid-1970s, Beers Construction Company, as general contractor of a project on the premises of Southern Regional Medical Center, installed a ground-level metal grate to cover a 20-foot-deep air shaft that provided ventilation to the basement. In 1992, Southern Regional again hired Beers for renovation involving the air shaft. While performing his duties on the project, Danny England was descending a ladder that was standing on the grate when the grate collapsed, causing England to fall and suffer severe injuries (including mental incapacity).

Through his guardian, England sued Beers and Southern Regional, alleging they had negligently constructed and installed the grate and its support system. Defendants filed a joint motion for summary judgment. The trial court granted summary judgment to Beers because it was entitled to tort immunity as England’s “statutory employer” under the Workers’ Compensation Act, which ruling we affirmed. Citing OCGA § 51-3-1 as the applicable statute, we also affirmed the trial court’s denial of summary judgment to Southern Regional because the case presented jury issues as to whether the defects could have been discovered during a reasonable inspection and as to whether Southern Regional performed a reasonable inspection.

England proceeded against Southern Regional, which later filed a second motion for summary judgment based on evidence filed since our first ruling. Finding no evidence that Southern Regional had superior knowledge of the defective grate system, the trial court granted summary judgment to Southern Regional, which England appealed. England subsequently died, and G. Donald Pulliam as administrator of England’s estate was substituted as appellant to this appeal.

On appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and that the party was entitled to judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We view the evidence, and all reasonable conclusions and inferences drawn from it, de novo and in the light most favorable to the nonmovant. Because there is no evidence that Southern Regional had actual or constructive knowledge of the hazard, we affirm.

1. An essential element of premises liability is that the defendant had actual or constructive knowledge of the hazard. Identifying no evidence that Southern Regional had actual knowledge, England sought instead to establish constructive knowledge by showing that the owner failed to exercise reasonable care in inspecting the premises and keeping them safe. England contends that the trial court erred in determining that a reasonable inspection would not have revealed the defective grate system.

The uncontradicted evidence shows that two factors primarily contributed to the grate system’s failure: faulty installation of the angle irons supporting the grate and the misuse of the fasteners adhering the angle irons to the walls of the air shaft. The angle irons were installed upside down and were not properly anchored to the building. Although the fasteners were supposed to merely hold objects together, they were used instead to support the sheer force of the grate system. The fasteners securing the support system were too small, of the wrong material, spaced too far apart, and were too few in number. Construing the evidence in the light most favorable to England, the grate system was defective from installation until England’s accident, and during those 16 years, Southern Regional never officially inspected it.

But whether Southern Regional failed to exercise ordinary care depends upon whether the defects were discoverable during a reasonable inspection. Ordinary diligence may not require an inspection where the owner does not have actual knowledge of the defect and there is nothing in the character of the premises indicating a defect. A metal pipe railing formed a barrier around the grate, and a decorative hedge planted around the railing further restricted access to the grate. The grate was not in a pathway, although a groundsman stood on the grate three to four times each year to trim the hedge. The groundsman never noticed a problem with the grate. On the day of the accident, for approximately two and one-half hours, numerous workers used the ladder without incident while it stood on the grate. No one ever reported an injury or problem concerning the grate before England’s accident.

England’s accident reconstruction expert deposed, without contradiction, that detecting the defects required an engineer. The expert further deposed, without contradiction, that the size and arrangement of the fasteners could be seen only if: (1) an inspector removed the grate, climbed into the air shaft, then looked up, or (2) an inspector removed the grate and then leaned into the opening of the 20-foot-deep air shaft.

Because ordinary diligence does not require these types of extraordinary inspection measures, the type of inspection necessary to discover the grate system’s defects was unreasonable as a matter of law, particularly in light of the grate not being in a pathway. Although superior knowledge is generally an issue for the jury, England presented no evidence that the defects could have been discovered by any reasonable inspection. Under such undisputed facts, the trial court properly granted summary judgment to Southern Regional.

2. England also enumerates as error the trial court’s determination as a matter of law that Southern Regional’s occasional inspection of the metal grate was reasonable. Not only did the trial court not make any such determination, our holding in Division 1 renders this enumeration moot.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

Decided December 3, 1999

Barnes, Browning, Tanksley & Casurella, Charles B. Tanksley, John Bevis, for appellant.

Alston & Bird, Jack H. Senterfitt, for appellee.

       See OCGA § 34-9-1 et seq.

        England v. Beers Constr. Co., 224 Ga. App. 44, 47 (1) (d) (479 SE2d 420) (1996).

       Id. at 48 (4).

         OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

       See Padilla v. Hinesville Housing Auth., 235 Ga. App. 409, 411 (509 SE2d 698) (1998).

        Rhodes v. B. C. Moore & Sons, Inc., 153 Ga. App. 106, 107 (1) (264 SE2d 500) (1980) (owner breaches no duty if ordinary care would not have discovered hazard).

        Talton v. Perimeter Place Assoc., 214 Ga. App. 505, 507 (448 SE2d 241) (1994).

       See, e.g., Nelson v. Polk County Historical Society, 216 Ga. App. 756, 758-759 (3) (456 SE2d 93) (1995) (landlord was not liable for injuries caused by the collapse of defectively constructed awning where fasteners did not sufficiently penetrate building and the untrained eye would not have been able to discover defect by ordinary means); Barksdale v. Nuwar, 203 Ga. App. 184, 185-186 (416 SE2d 546) (1992) (homeowner of defectively constructed deck was not liable for injuries caused by deck’s collapse due to defect in construction not apparent to the untrained eye).

        Robinson, supra, 268 Ga. at 748.

       Id.; Lau’s Corp., supra, 261 Ga. at 491 (to survive summary judgment, plaintiff as nonmovant is obligated to “point to specific evidence giving rise to a triable issue”); Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 98 (1) (453 SE2d 123) (1995) (defendant was not charged with constructive knowledge of defect where plaintiff failed to meet burden of demonstrating that the defect was discoverable by a reasonable inspection).


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A99A1603.
    TYSON v. THE STATE.
    (526 SE2d 603)
   Blackburn, Presiding Judge.

After a jury trial, Samuel Seymore Tyson appeals his conviction of child molestation. Tyson contends that the trial court erred by (1) denying his motion to suppress, (2) allowing the introduction of sexually explicit material as similar transaction evidence, (3) denying his motion in limine, (4) allowing testimony regarding the contents of a missing videotape, and (5) allowing hearsay testimony. Tyson also contends that the arresting officers failed to provide him with his Miranda warnings. For the reasons set forth below, we reverse.

Viewing the evidence in the light most favorable to the verdict, it reveals that Tyson operated a booth at an Acworth flea market. Tyson is a 47-year-old individual with a third or fourth grade education, who can read very little and can barely sign his name. On the day of the incident, Officer Steven Eidson was patrolling the flea market when he was flagged down by Mr. and Mrs. Glenn who reported that they had seen an individual molesting a young girl. Officer Eidson contacted his supervisor, Sergeant Mitchell, who met him at the flea market. They then proceeded to look for the described individual. The Glenns pointed out Tyson as the molester.

The officers approached Tyson and advised him of the allegations, which he denied. Tyson also denied knowledge of the child or her mother. This interrogation took place outside Tyson’s booth. Officer Eidson stated that “since we had no victim in an apparent crime, we started to leave at that point.” As the officers were leaving, they were flagged down by Sosebee, another witness. At the motion to suppress hearing, Officer Eidson testified that Sosebee had related her observations to him and they were similar to the Glenns’ description of the incident. At trial, the State was not permitted to go into what Sosebee had said to Officer Eidson as she had suffered a stroke and was not competent to testify. The State did not attempt to make a showing which might have permitted such testimony.

Officer Eidson testified that after Sosebee had talked to them, the officers returned to question Tyson further. Tyson continued to deny any knowledge of the girl or her mother. Officer Eidson testified that he asked Tyson if he had anything illegal, such as weapons, in the van, which was parked within ten feet of the booth, and if Tyson had any problem with him looking in the van. The back door of the van was open, and the officer could clearly see into the rear section of the van, and the front section was visible through the window. Tyson denied possession of any weapons and consented to the officers’ request to look in his van.

Upon entering the van, Officer Eidson found a .22 Derringer handgun, a .22 rifle and a third weapon. At this time, he also found a plastic grocery bag in which he discovered several used pairs of latex gloves and a small bag which contained several pairs of yellow colored panties. Next to the bag, Officer Eidson found a box of unused latex gloves and ajar of Vaseline. The van also contained a mattress and a TV and VCR setup. Tyson stated that he had forgotten that he had weapons in the van, and he said that he could not believe this was happening to him because he had also been similarly accused at another flea market. The officers did not seize any items or arrest Tyson at that time because they did not feel they had probable cause and they still had not located a victim. Tyson was however given a citation for no proof of insurance.

Officer Eidson returned to the police station where he discussed the matter with Sergeant Atkinson, the detective on call, who informed him that he should have arrested Tyson. By this time, Officer Eidson had been able to track down the victim’s mother and spoke to her over the telephone. The mother initially denied having been at the flea market, then she admitted that she was at the flea market, but denied that she left the child with Tyson. The child’s grandfather called and stated he was bringing the mother and daughter to the station to talk to the police. The child did not testify at trial as she would not respond to the oath. The mother died before trial and did not testify.

After talking to Sergeant Atkinson, Officer Eidson returned to the flea market where he arrested Tyson and seized Tyson’s van as evidence. Sergeant Atkinson testified that during a subsequent inventory search of the seized van, he found pornographic material which included videotapes, one of which involved bestiality, adult magazines, a blowup doll with pigtails, soiled panties, two dildos, used condoms, and pictures of naked female children pinned to a piece of cardboard. After Tyson was arrested, Officer Eidson obtained an arrest warrant from a magistrate.

At trial, Mrs. Glenn testified that she had seen Tyson rubbing his hand up and down between a child’s legs on her vaginal area while she was sitting on his lap. She stated that the victim had pushed away from Tyson, but he had tried to pull her back into his lap. Mr. Glenn testified that he saw Tyson struggling with a child as she was trying to pull away, and Tyson pulled her back onto his lap with her buttocks right on top of his lap. Mr. Glenn described Tyson’s action as “hunching” on the child like a dog. Both Mr. and Mrs. Glenn testified that after the child pulled away, they could see that Tyson had an erection. Tyson testified that the child did sit on his lap, but he denied molesting her.

1. Tyson contends that the trial court erred in denying his motion to suppress the evidence found in his van because the van was illegally searched, arguing that the search of the van was not incident to a legal arrest. We agree that the second search of the van was incident to an illegal arrest.

In reviewing a trial court’s denial of a motion to suppress, we are required to accept such court’s ruling on disputed facts unless it is clearly erroneous, [and] we must defer to the trial court’s judgment on the credibility of witnesses. Furthermore, the evidence is to be construed most favorably to the upholding of the findings and judgment made.

(Citations and punctuation omitted.) Cates v. State, 232 Ga. App. 262, 263 (501 SE2d 262) (1998).

(a) Both the Georgia courts and the federal courts have expressed a preference for arrests pursuant to a warrant. Ga. Crim. Trial Prac. (1998 ed.), § 2-13. OCGA § 17-4-20 (a) contains the circumstances under which a warrantless arrest may be made, including when an offense is committed within the officer’s presence, within his immediate knowledge, when the offender is endeavoring to escape, or if for other cause there is likely to be a failure of justice for want of a judicial officer to issue a warrant. The facts of the present case fail to support a valid arrest because, at the time of the arrest, the officer lacked probable cause.

This is especially true in light of the officer’s own testimony that he had no probable cause to arrest Tyson when he returned to the police station. The evidence clearly shows that the officer had the time to obtain an arrest warrant prior to his return to the flea market and arrest of Tyson. There was no victim or physical evidence of a crime. No crime was committed in the presence of the officer, and Tyson was not attempting to elude the officer. Tyson was still at his booth when the officer returned to arrest Tyson. Having improperly failed to obtain a warrant, Tyson’s arrest without probable cause was invalid. Therefore, the search of the van was not incident to a valid arrest and was improper. The evidence obtained in the illegal search should have been suppressed. See Harper v. State, 135 Ga. App. 924, 925 (219 SE2d 636) (1975). Also, much of this evidence is not admissible under Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999).

The special concurrence would find probable cause when a witness tells the officer he has seen a crime committed — even though the witness’ statements were not corroborated in any fashion and there was no physical evidence of a crime.

Tyson’s presentation of exculpatory evidence by his denial of the acts of molestation created a credibility issue with the State’s incul-patory evidence. Such an issue must be decided by a jury. See Higgin-botham v. State, 207 Ga. App. 424, 427 (4) (428 SE2d 592) (1993). Therefore, the evidence of Tyson’s guilt was not so overwhelming that we can find that the admission of the sexually explicit evidence was harmless. “It cannot be said with any degree of certainty that the erroneous admission of [such] evidence did not have any prejudicial effect on the jury’s determination as to [Tyson’s] credibility and, consequently, on the jury’s determination as to his guilt.” Id. See also Ricks v. State, 217 Ga. App. 666, 667 (1) (458 SE2d 862) (1995); White v. State, 213 Ga. App. 429, 431 (1) (445 SE2d 309) (1994). Therefore, a new trial is required on this ground.

(b) Tyson argues, on appeal, that his warrantless arrest requires the quashing of the subsequent arrest warrant and requires the dismissal of the indictment against him. However, as these motions were not made in the trial court, they cannot be considered for the first time on appeal. See Hill v. State, 224 Ga. App. 208, 209 (2) (480 SE2d 256) (1997) (issues raised on appeal for the first time present nothing for review). Moreover, the illegality of an arrest does not bar prosecution or conviction. Thompson v. State, 175 Ga. App. 645, 648 (3) (334 SE2d 312) (1985).

2. Tyson contends that the trial court erred in allowing the introduction of sexually explicit material as similar transaction evidence. The evidence complained of in this enumeration is the evidence improperly seized from the van and discussed in Division 1. The trial court allowed the subject material into evidence to show the lustful disposition of the defendant.

Our Supreme Court has recently addressed this unsettled issue and greatly limited the admissibility of sexual paraphernalia found in a defendant’s possession. It is clear that much of the State’s evidence in this case is barred under Simpson, supra.

Because the case law has been unclear and unsettled, we take this opportunity to put forth a clear and cogent rule: In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Simpson, supra at 773.

We are precluded under the circumstances of this case from applying the harmless error rule and must reverse on this ground. Frazier v. State, 241 Ga. App. 125 (524 SE2d 768) (1999). The State offered no physical evidence that Tyson committed the crime charged. The child denied the incident in police interviews and did not testify at trial. We note that we can find nothing in the record which establishes the fact that the subject child was indeed the child about whom the witnesses testified.

3. Tyson contends that the trial court erred by denying his motion in limine to exclude his statement to Officer Eidson that he had previously been accused of molestation at another flea market. However, Tyson’s spontaneous statement was neither custodial nor in response to police questioning. Therefore, the trial court’s findings are supported by testimony and must be affirmed. See Sampson v. State, 209 Ga. App. 213, 216 (2) (433 SE2d 136) (1993); see also Cates, supra.

4. Tyson argues that the trial court erred by allowing testimony regarding the contents of a bestiality videotape that was obtained during the search of his van and subsequently lost by the police. As we previously held that all of the evidence found in Tyson’s van should have been suppressed, see Division 1, and especially such evidence that does not relate to the crime charged, see Division 2, citing Simpson, supra, this error is rendered moot.

5. Tyson contends that the trial court erred by allowing hearsay testimony.

Officer Eidson testified that when the victim was being interviewed at the police station, the victim’s mother was influencing the victim’s negative responses when the victim was asked whether Tyson had molested her. Officer Eidson took the mother into the hallway to explain that she could not guide the victim’s answers. He was allowed to testify at trial that the victim’s mother told him that she did not want any information regarding this incident to get to the father because she was on probation, and if the father found out that she left the child alone with Tyson, the father would have her sent back to jail. Tyson’s counsel objected on hearsay grounds. The State argues that because the mother is now deceased, the testimony was admissible under the necessity exception. '

The two prerequisites for the admission of hearsay because of necessity are: a finding that the hearsay is necessary, and a finding that the declarant’s hearsay statement is surrounded by particularized guarantees of trustworthiness. Mallory v. State, 261 Ga. 625 (2) (409 SE2d 839) (1991). [The Supreme Court of Georgia] recently held in Chapel v. State, 270 Ga. 151 (4) (510 SE2d 802) (1998), that the hearsay declarant’s death or unavailability, in and of itself, does not satisfy the “necessary” component. ... To satisfy the requirement that the hearsay be “necessary,” in addition to showing the hearsay declarant’s unavailability due to death, privilege, or other reason, the proponent of the hearsay must also show “that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered.”

(Citations omitted.) Clark v. State, 271 Ga. 6, 9-10 (5) (515 SE2d 155) (1999). In the present case, the evidence explained the mother’s coaching of the victim and the victim’s denial of the molestation. Additionally, the evidence showed the mother’s state of mind and motivation instead of an attempt to prove the truth of the mother’s statements. The mother and Officer Eidson were the only ones present. during this conversation. “ ‘Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.’ ” Dixon v. State, 227 Ga. App. 533, 536 (4) (489 SE2d 532) (1997). The evidence showed particularized guarantees of trustworthiness because they were statements against the mother’s interest. See OCGA § 24-3-8 (declarations against interest by one since deceased admissible). We cannot say that the trial court erred in allowing this testimony.

6. Finally, Tyson contends that the charges against him should be dismissed because he was never informed of his Miranda rights prior to his arrest. However, Tyson failed to assert this alleged error in the trial court, and therefore, it presents nothing for review. See Hill, supra.

Judgment reversed.

Ellington, J., concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

Although I agree that this case must be reversed and concur fully with Divisions 2, 3, 5, and 6 and the judgment, I cannot concur with Division 1 that holds that Tyson was the victim of an illegal arrest, or with Division 4 that holds that Tyson’s claim that the trial court erred in allowing testimony about the contents of a lost videotape was moot based on its holding in Division 1. Although I concur with the reversal, I must note that the result reached by the majority would upon retrial necessarily preclude the introduction of all the evidence seized incident to Tyson’s arrest.

In Durden v. State, 250 Ga. 325, 327 (297 SE2d 237) (1982), our Supreme Court abolished the distinction between the federal and state tests in determining whether an arrest was valid.

We find that these dual inquiries, one under federal law and one under state law, serve no useful purpose and result in complicating the law in an area which needs to be readily understood by law enforcement officers. Hence we hold that if an officer, while in the presence or vicinity of the accused, acquires “probable cause” (federal) to arrest the accused outside his or her home, and fails to make such arrest, there is likely to be a failure of justice as a matter of law if the officer is required to delay the arrest until a warrant is obtained. That is to say, we find the state rule to be the same as the federal rule. An arrest and search, legal under federal law, are legal under state law.

Moreover, in Bodiford v. State, 169 Ga. App. 760-761 (315 SE2d 274) (1984), this court reiterated that “ ‘an arrest meeting the constitutional requirements of probable cause is valid whether or not OCGA § 17-4-20 was violated/ ” (Citations and punctuation omitted.) Therefore, our inquiry should focus on whether probable cause existed for Tyson’s arrest.

I am satisfied that the officer had probable cause to arrest Tyson. Two witnesses reported to the police officer that they saw a man molesting a young girl and then identified Tyson as the person who molested the child. Further, while the record is not clear what was said, a third witness also reported the incident to the police and apparently identified Tyson. In my opinion, this information was sufficient to give the officer probable cause to arrest Tyson. In effect, three witnesses reported to the police that they had just seen a man molesting a young girl and identified Tyson as the man who did it. What more evidence could be necessary?

An arrest without a warrant is constitutionally valid if the arresting officer knew facts and circumstances, based upon reasonably trustworthy information, that were sufficient for a prudent person to believe that the accused had committed an offense. Wright v. State, 189 Ga. App. 441, 443 (1) (375 SE2d 895) (1988). Additionally, this Court gives reports from concerned citizens a preferred status when testing the credibility of their information. Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985). Notwithstanding the weight the majority gives to the officer’s opinion regarding whether he had probable cause to arrest Tyson, neither the trial court nor this Court is bound by the police officer’s conclusions regarding his actions. See Morgan v. State, 195 Ga. App. 732, 734-735 (3) (394 SE2d 639) (1990).

Decided December 3, 1999

Barnes, Browning, Tanksley & Casurella, George T Smith, for appellant.

Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, John C. Richter, Assistant District Attorneys, for appellee.

Because there was probable cause to arrest Tyson, all of the evidence seized in the van should not be excluded. As a result, Tyson’s claim that the trial court erred in allowing the police officers to testify about the contents of the lost videotape is not rendered moot. Under Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999), evidence of sexual paraphernalia found in the defendant’s possession must show his lustful disposition or bent of mind toward engaging in the type of sexual activity with which he is charged before it is admissible. Because the sexually explicit videotape did not relate to child molestation, evidence as to its content is not, therefore, admissible. This does not mean, however, that other evidence, such as the nude photographs of young children, which was legitimately seized incident to a lawful arrest, must be excluded. See id.


author: Johnson, Chief Judge.

text:
    A99A1993.
    THOMPSON v. THE STATE.
    (526 SE2d 434)
   Johnson, Chief Judge.

A jury found John Thompson guilty of three counts of child molestation, two counts of rape, and one count each of obstructing a law enforcement officer and possessing a knife during the commission of a felony. He appeals from the convictions, contending the trial court erred in admitting evidence of his prior aggravated sodomy conviction because it was not sufficiently similar to the crimes with which he was charged in this case. We hold that the crimes were sufficiently similar and the trial court did not abuse its discretion in admitting the evidence.

In the instant case the state charged Thompson with, among other things, molesting his stepdaughter by touching her breasts, buttocks, and vagina with his hands and forcing her to have sexual intercourse with him. The state sought to introduce evidence that Thompson committed aggravated sodomy upon his ex-girlfriend in 1990, explaining that the testimony would establish Thompson’s bent of mind to engage in a forcible sexual assault. The trial court ruled the evidence was admissible.

The following evidence was presented at trial: Thompson’s stepdaughter testified that in about 1993, when she was 12 years old, Thompson began fondling her breasts, vaginal area, and buttocks. The victim told her mother, but Thompson threatened the victim with a knife and demanded that she tell her mother she was lying. Thompson repeatedly told the victim that he would kill her and her family if she told. Thompson continued to fondle her for approximately three years.

When the victim was 16 years old, while no one else was home, Thompson directed her to go upstairs and take her clothes off. He yelled at her until she did so, pushed her onto the bed and held her down. The victim screamed and tried to push him off of her, but could not. Thompson put lubricating jelly on his penis and had intercourse with her. Thompson told the victim to go into the bathroom and take a bath. He then took her shopping and bought her new clothing.

A few weeks later, Thompson came home and found the victim lying on the couch. He pulled her off the couch and pushed her into a bedroom and onto the bed. The victim fought Thompson, but he overpowered and had intercourse with her. Shortly thereafter, Thompson threw some cash on her bed.

The similar transaction witness testified that after she ended her relationship with Thompson, she met him at a shopping mall in order to collect some money he owed her. Thompson told her he had a gun and threatened to throw her over a railing or shoot her if she tried anything. He took the victim by the arm, pushed something in her back, and led her to his truck. Thompson drove to a house they had previously shared, then ordered the victim to go to the bedroom and take off her clothes. He tied her hands and feet to the bedposts, put petroleum jelly on his penis and had anal intercourse with her. He ordered her to go into the bathroom and take a bath. Thompson said he needed to get the victim some medicine for her injuries and left the house for a few minutes. While he was gone, the victim managed to contact police. When Thompson returned, he bound and gagged the victim. Police arrived a short time later and knocked on the door. Thompson held a knife to the victim’s throat and did not respond to the knocking. The officers left. Thompson left the victim in the house and drove to a fast food restaurant to buy her lunch. The officers returned later and arrested Thompson. He was eventually convicted of aggravated sodomy and several other offenses.

Evidence of a similar transaction is admissible if: (1) there is sufficient evidence that the similar transaction occurred; (2) the evidence is offered for an appropriate purpose; and (3) there is sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter. The rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses.

Decided December 3, 1999.

Darel C. Mitchell, for appellant.

John Thompson, pro se.

It is well settled, particularly in cases involving sexual offenses, that similar transactions may be admitted for the purpose of establishing bent of mind. Evidence of an earlier assault on a woman is material to the issue of consent or lack thereof and has a direct bearing on a defendant’s bent of mind. Such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.

Contrary to Thompson’s argument, the offenses were similar. In general, the crimes against both victims involved the use of force in order to engage in sexual contact. More specifically, all of the sexual offenses took place in a home Thompson shared with the victims; he ordered both victims to go to bedrooms and take off their clothing; he threatened both victims with a knife; he used lubricating or petroleum jelly with both victims; he told both victims to go to the bathroom and bathe immediately after intercourse; and he gave money to or bought things for both victims just after he committed the offenses.

Although the prior act of aggravated sodomy was not identical to the charged offenses, the law does not require that the transactions be identical. The crucial factor is its relevance to the issues at trial. The similarities in this case were relevant to the issue of Thompson’s bent of mind. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible. There was no such abuse here.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

        Parrish v. State, 237 Ga. App. 274, 280 (4) (514 SE2d 458) (1999).

        Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999).

        Goodroe v. State, 238 Ga. App. 66, 68 (2) (b) (518 SE2d 139) (1999).

       Id.

       See id.

        Jones v. State, 226 Ga. App. 721, 723 (1) (487 SE2d 618) (1997).

       See Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996).

       See generally Salters v. State, 238 Ga. App. 45, 46 (2) (517 SE2d 593) (1999).

        Dumas v. State, 239 Ga. App. 210, 215 (3) (521 SE2d 108) (1999).


author: Ruffin, Judge.

text:
    A99A2162.
    WARD v. DEPARTMENT OF HUMAN RESOURCES.
    (527 SE2d 3)
   Ruffin, Judge.

Cindy Ward appeals from an order of the Superior Court of Henry County directing her to pay support for her minor child who lives with his father. Ward contends that the petition to establish support should have been brought as an action to modify her existing support obligations, rather than an original action to establish support. We agree that the Department of Human Resources (“DHR”) failed to follow the statutory procedure precisely, but as that failure did not prejudice Ward, we affirm the child support order.

Ward and Anthony Burch married in 1982 and had four children together. They divorced in 1991. During the divorce proceedings, the trial court entered a temporary order granting custody of all four children to Ward and directing Burch to pay support for each child. Burch and Ward later signed an agreement giving custody of the eldest child to Burch and custody of the other children to Ward. Under this agreement, Burch was to pay Ward $28 per week per child as support for the three children living with her. The agreement did not specifically address child support payments for the child living with Burch, but did state that Burch and Ward would equally divide the cost of medical care not covered by insurance for all four children. The trial court’s final divorce decree incorporated the parties’ agreement and ordered them to abide by it.

In 1994, Burch sought help from Child Support Enforcement in Henry County to get Ward to pay support for the one child in his custody. In 1997, DHR filed a petition seeking support from Ward on behalf of the child. Ward moved to dismiss the petition, but the trial court denied her motion. The court then held a hearing to determine the appropriate amount of support for the child living with Burch. Following the hearing, the court entered an order directing Ward to pay $40 per month in support. In arriving at that figure, the trial court considered the fact that Ward was supporting three other children and that Burch was in arrears on his child support payments to her.

Ward argues that the 1991 divorce decree established a support obligation for her with respect to the child living with Burch — specifically, it required her to pay one-half of the child’s medical expenses not covered by insurance. According to Ward, therefore, the petition for support should have been brought as an action to modify her child support obligations under OCGA § 19-6-19, not as an action to establish them. DHR, on the other hand, contends that the divorce decree was silent as to support for the eldest child and that its petition was thus procedurally proper. And even if the petition should have been brought as one for modification, DHR urges, the result would have been the same because Ward’s support obligations diverged greatly from the amount recommended under statutory guidelines.

First, we note that Ward is correct that the 1991 divorce decree established child support obligations for her with respect to the eldest child. In Conley v. Conley , the Supreme Court held that an obligation to pay a portion of a child’s medical and dental expenses counts as an obligation to pay child support. Because the divorce decree required Ward to pay half of the child’s medical expenses not covered by insurance, it did obligate Ward to pay child support. It does not follow, however, that the only way Burch could modify Ward’s obligation was to bring an action under OCGA § 19-6-19.

OCGA § 19-6-19 sets forth the exclusive remedy available to a custodial parent proceeding on his own to increase the support obligations of the noncustodial parent. Such parent must show a change in the financial status of either parent or in the needs of the child as a threshold to recovery under this Code section. Thus, had Burch sued Ward on his own for child support, he would have been required to proceed under OCGA § 19-6-19, and his failure to show a change in circumstances would have precluded a change in support.

In addition to the self-initiated remedy available under OCGA § 19-6-19, however, a custodial parent may apply to DHR for child support enforcement services. Upon the application of a parent, DHR “shall review for possible modification child support orders, judicial and administrative in origin.” If DHR determines that there is “a significant inconsistency between the amount of the existing child support order and the amount of child support which would result from the application of Code Section 19-6-15,” then DHR shall recommend an appropriate increase or decrease in support obligations. If either parent objects to DHR’s recommendation, then DHR is required to petition the superior court to adopt its recommendation, and “a de novo proceeding shall be scheduled with the court on the matter.” Thus, OCGA § 19-6-19 (parent-initiated modification proceeding) and § 19-11-12 (DHR review of child support orders) are independent remedies available to parents who wish to modify child support obligations. When a parent seeks help from DHR, there is no threshold requirement that the parent demonstrate a change in the financial position of either parent or in the needs of the child.

Here, Burch elected to apply to DHR for help. DHR notified Ward of Burch’s application and its intention to determine the extent of her support obligation. Erroneously concluding that she had no such obligation, DHR filed a petition against her in superior court to establish one. Under OCGA § 19-11-12, DHR should have first conducted its own review of Ward’s support obligations and made an appropriate recommendation. If either Ward or Burch objected, DHR should have then filed a petition for the superior court to adopt its recommendation.

DHR’s failure to follow this procedure, however, was harmless. DHR duly notified Ward of its intention to proceed against her for child support and gave her the opportunity to meet and discuss the matter. Most importantly, the superior court heard the case de novo and conducted a hearing at which Ward testified and presented evidence. The court considered the unique circumstances of the case and ultimately directed Ward to pay child support in an amount far below the statutory guideline. On appeal, Ward does not argue that her hearing in superior court was anything less than full and fair, nor does she challenge the amount of child support she was ordered to pay. Under these circumstances, we cannot conclude that Ward was prejudiced in any way by DHR’s failure to strictly follow the procedures of OCGA § 19-11-12.* Finally, while we are sympathetic to Ward’s protest that it is unfair to impose additional support obligations on her while her ex-husband remains delinquent in his payments, we are mindful that child support is the right of the child, not the parent, and that the failure of one parent to meet his obligations does not excuse the other parent from meeting hers.

Decided December 3, 1999

Crumbley & Crumbley, Jackson E. Cox II, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, Charles L. Cash, Jr., for appellee.

Judgment affirmed.

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

       Ward raised several arguments in her motion, to dismiss, but the trial court addressed only one of them. On appeal, Ward’s enumeration of error is limited to the one argument addressed by the trial court. We therefore do not consider the other arguments for dismissal that Ward made below.

       See OCGA § 19-6-15 (setting forth ranges for appropriate child support payments).

       259 Ga. 68, 69 (2) (377 SE2d 663) (1989).

       Id. at 70 (4).

       See OCGA § 19-6-19 (a); Wingard v. Paris, 270 Ga. 439 (511 SE2d 167) (1999).

       See OCGA §§ 19-11-6 (c); 19-11-8 (b).

       OCGA § 19-11-12 (c) (1).

       OCGA § 19-11-12 (d) (2).

       OCGA § 19-11-12 (d) (4) (B).

        Kelley v. Dept. of Human Resources, 269 Ga. 384, 385-386 (2) (498 SE2d 741) (1998).

       See Carder v. Racine Enterprises, 261 Ga. 142 (1) (401 SE2d 688) (1991) (“Harm as well as error must be shown to authorize a reversal by this court”).

       See Stewart v. Stewart, 160 Ga. App. 463 (287 SE2d 378) (1981).


author: Eldridge, Judge.

text:
    A99A2217.
    HUNTINGTON v. CITY OF ATLANTA et al.
    (527 SE2d 6)
   Eldridge, Judge.

On July 31,1995, Michael G. Huntington, pro se, sued the City of Atlanta, Mayor Bill Campbell, and Clifford E. Hardwick IV, involving the years 1980 through 1993. In a rambling, confused complaint, Huntington claimed damages for the following: inadequate police services; damage to his asphalt drive and parking area by city garbage trucks at two of his apartment complexes; excess garbage fees; failure of the Bureau of Buildings to timely inspect repairs of code violations; and excess ad valorem tax assessments. The complaint does not name or allege any claim against either Mayor Bill Campbell or Clifford E. Hardwick IV; the only reference to the individual defendants comes in the process for service upon the City of Atlanta. Atlanta and the other defendants answered and filed a motion to dismiss, which the trial court granted. Because Huntington’s complaint fails to set forth a claim entitling him to relief under any state of facts provable at trial, we affirm.

1. Huntington’s first enumeration of error is that the trial court erred in dismissing the complaint, because no “special relationship” need exist to sue the City of Atlanta for fraud and corruption.

Huntington complained that the police had not properly responded to or investigated complaints of drug sales and use in and around his apartment complexes. He contended that such drug activity had a harmful effect on the occupancy rate and value of his apartments. He had no complaint of damages flowing from a specific act or omission by the police.

The issue enumerated as error, i.e., special relationship, applies only to liability of a governmental entity for the acts or omissions of the police or similar governmental public safety agency in the performance of its duties to the public. See Rowe v. Coffey, 270 Ga. 715, 716 (515 SE2d 375) (1999); City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993).

Decided December 3, 1999.

Michael G. Huntington, pro se.

Kimberly L. Miller, Rosalind A. Rubens, for appellees.

[F]ar from creating a general immunity from liability, adoption of the public duty doctrine requiring a special relationship between the injured party and the alleged governmental tortfeasor restricts the liability of the governmental entity for the actions of a third party similarly to the manner in which the liability of a private party is restricted.

Id. at 28. Such special relationship arises when (1) an explicit assurance by promise or action by the municipality to the injured party that it would act on behalf of such party; (2) knowledge by the municipality that inaction would lead to harm to the party; and (3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking. Id. at 29. None of such elements could be proved by Huntington in this case. Further, in regard to the specific acts or omissions complained of either such do not come within “public duty” or no evidence of “fraud and corruption” that could be shown at trial would act as an exception. Therefore, the trial court properly dismissed the action on the grounds of public duty immunity.

2. Huntington’s other enumeration of error is moot, because it deals with a continuance to conduct discovery. Since the complaint failed to state a claim upon which relief could be granted, then there would be nothing for legal discovery.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.