author: Smith, Presiding Judge.

text:
    A00A1731.
    KARPOWICZ et al. v. HYLES.
    (543 SE2d 51)
   Smith, Presiding Judge.

Riann Karpowicz and her mother, Ruth Karpowicz, filed this tort action against Stephen Hyles, an attorney who had acted as defense counsel for another individual in a criminal case. Hyles obtained and reviewed the psychiatric records of Riann Karpowicz and then, during the criminal trial, used certain facts obtained from the records to attack the credibility of Ruth Karpowicz. Later, in this action, the trial court granted summary judgment to Hyles on all counts of the Karpowiczes’ complaint and denied partial summary judgment to the Karpowiczes. The Karpowiczes appeal. We agree with the trial court that summary judgment was warranted in Hyles’s favor. We therefore affirm.

Steven Carson was tried before a jury on charges of false imprisonment and rape of Riann Karpowicz. In preparation for trial, Carson’s attorney, Hyles, had a subpoena duces tecum served on the records custodian at Northridge Hospital, a psychiatric treatment facility at which Riann Karpowicz had received treatment in 1994. In response to the subpoena, the custodian contacted Hyles’s office and informed him that he could retrieve the documents. After one of Hyles’s office employees paid for and picked up the records, Hyles reviewed the custodial certificates, and he testified by affidavit that he “briefly reviewed the documents to determine what they contained and which portions, if any, would be relevant evidence in the Carson trial.” He also testified Carson never reviewed the records, although he did discuss with Carson the fact that Karpowicz had been treated at Northridge and the dates this treatment had occurred.

Before trial began, the trial court ruled that nothing in the records could be used at trial to “prove the truth of any diagnosis or statement of the condition of Riann Star Karpowicz contained in the records, and that no privileged information contained in the records could be referred to in opening statements, jury arguments, and in the examination of witnesses.” The trial court did, however, allow the facts and dates of treatment to be used as evidence.

During his opening statement, Hyles mentioned that Karpowicz and Carson “began a friendship shortly after she was released from the Northridge Hospital.” Later, on cross-examination, Ruth Karpowicz testified she would believe Riann Karpowicz under oath. Hyles then showed Ms. Karpowicz a document signed by her admitting Riann to Northridge, and upon questioning by Hyles, Ms. Karpowicz acknowledged she had Riann admitted to that facility due to Riann’s “excessive lies.” While the prosecutor objected to admissibility of this document on grounds of relevancy, he did not object on privilege grounds. The document was admitted, with redaction to keep out certain handwritten notes and other information. Also on cross-examination, Ruth Karpowicz acknowledged that she told a licensed clinical psychologist who treated Riann at Northridge that she was afraid that Riann was unable to perceive reality accurately. Carson was acquitted after less than an hour of jury deliberations.

Riann and Ruth Karpowicz then filed this action against Hyles, seeking an order for return of Riann’s records and damages for negligence, abuse of judicial process through abuse and unlawful use of a subpoena, fraud and deceit, invasion of privacy, tortious interference with a confidential relationship, and negligent and intentional infliction of emotional distress. Following motions filed by the parties, the trial court granted summary judgment to Hyles and denied the Karpowiczes’ motion for partial summary judgment. This appeal by the Karpowiczes followed.

1. The Karpowiczes first argue that the trial court erroneously ruled “that a criminal defendant’s right to confront a witness overrides the privilege of confidential communications of [that witness’s] psychiatric records.” But the trial court’s ruling was not so broad. The trial court stated:

The criminal defense attorney’s obligation in a criminal trial is to his client as opposed to third persons, including the complaining witness, and this duty includes the protection of the client’s constitutional right to confront complaining witnesses. Ga. Const. Art. 1, § 1 ¶14. Where credibility of a witness in a criminal trial is in issue, the criminal defendant must be given broad latitude to explore, and impeach, that witnesses] credibility.

This was not a generalized ruling that a criminal defendant’s right to confront an opposing witness always overrides the use of privileged psychiatric records. Indeed, the psychiatric privilege can yield to the right of confrontation upon a showing that privileged material is necessary to an accused’s defense. See Bobo v. State, 256 Ga. 357, 359 (3) (349 SE2d 690) (1986).

Here, the trial court conducted a pre-trial hearing and ruled that Hyles could not introduce any privileged matters. Hyles complied with this ruling. Although Hyles mentioned that Riann Karpowicz had received treatment at Northridge, the fact of this treatment correctly had been ruled admissible at trial. See, e.g., Johnson v. State, 254 Ga. 591, 597 (7) (331 SE2d 578) (1985). Furthermore, Hyles’s cross-examination of Ruth Karpowicz was not an improper use of privileged records. Ruth Karpowicz herself was not a patient when she made the statement on Riann’s admission slip concerning Riann’s “excessive lying” or when she indicated that Riann had difficulty perceiving reality accurately. No confidential relationship existed permitting Ruth Karpowicz to claim the psychiatrist-patient communications privilege. See generally Fulbright v. State, 194 Ga. App. 827 (1) (392 SE2d 298) (1990) (to invoke privilege, psychiatrist-patient relationship must exist to the “ ‘extent that treatment was given or contemplated.’ [Cits.]”). This case is distinguished from Mrozinski v. Pogue, 205 Ga. App. 731 (423 SE2d 405) (1992), in which this court concluded that an issue of fact existed as to whether the plaintiff, the father of a 14-year-old who received psychiatric treatment from defendant, also received psychiatric assistance from the defendant. Id. at 733. In Mrozinski, evidence was presented that the plaintiff “participated in therapy,” id., and that he “consulted [the defendant] for treatment and assistance for himself in his family relations, particularly with his daughter.” Id. at 732. But the record here does not show that Ruth Karpowicz sought treatment from the treating psychologist at Northridge to whom she made the statement concerning Riann’s inability to perceive reality accurately.

2. We next address the Karpowiczes’ argument that the trial court erred in granting summary judgment to Hyles on Riann Karpowicz’s invasion of privacy claim. The right of privacy has indeed been recognized in this State “as a fundamental constitutional right, having a value so essential to individual liberty in our society that its infringement merits careful scrutiny by the courts.” (Citation and punctuation omitted.) Powell v. State, 270 Ga. 327, 329 (3) (510 SE2d 18) (1998). The privacy afforded to medical records was recently extensively discussed in King v. State, 272 Ga. 788 (535 SE2d 492) (2000). In King, the Supreme Court of Georgia concluded that the defendant had a reasonable expectation of privacy in her medical records and that those records could not be disclosed without her consent unless their production was otherwise required by the laws of this State. The Court found that in the absence of waiver and without notice to the accused, the State could not obtain a defendant’s medical records by use of a subpoena under OCGA § 24-9-40. This right of privacy certainly extends to privileged psychiatric records. As stated in Bobo, supra, a criminal defendant is not entitled to embark upon “a ‘fishing expedition’ regarding a witnesses] consultations with a psychiatrist.” Bobo, supra, 256 Ga. at 360.

But after giving Riann Karpowicz’s invasion of privacy claim appropriate “careful scrutiny,” we cannot conclude that Hyles’s actions were improper or that he in any manner engaged in a “fishing expedition” prohibited by cases such as Bobo. Nor does King, supra, require reversal. We first note that the Supreme Court’s discussion in King addresses whether the State was authorized under OCGA § 24-9-40 to obtain a patient’s medical records and then use those records to prosecute that patient. But that Code section expressly does not apply to psychiatrists or hospitals in which the patient is receiving treatment or has been “treated solely for mental illness.” OCGA § 24-9-40 (a). Furthermore, the State’s conduct is not at issue here. Instead, the narrower issue is whether a criminal defense attorney wrongfully presumed that a psychiatric hospital complied with the law in providing a patient’s psychiatric records. We agree with the trial court that Hyles was entitled to rely on just such a presumption that the records he received from Northridge were either nonprivileged or that Northridge first obtained a waiver from Riann Karpowicz.

Under OCGA § 37-3-166 (a) (8), a hospital is authorized to release a copy of a psychiatric patient’s record, except for privileged matters, pursuant to a valid subpoena or court order. The act of having the subpoena issued was not improper, as Hyles was authorized to obtain nonprivileged records from the facility. Northridge in no manner indicated that certain information in the records might not be discoverable by, for example, moving to quash the subpoena as being unduly burdensome or seeking privileged matter, as did the hospital in Plante v. State, 203 Ga. App. 33 (416 SE2d 316) (1992). See OCGA § 24-10-22 (b) (l). Also, rather than appear in court with the requested records as directed by the subpoena, the custodian contacted Hyles and instructed him to retrieve the records, a fact that would have further suggested that the records contained no privileged information or that a waiver had been obtained.

The concept of invasion of privacy encompasses acts amounting to intrusion upon a plaintiffs seclusion or solitude or into the plaintiffs private affairs and “public disclosure of embarrassing private facts about the plaintiff.” Sun v. Langston, 170 Ga. App. 60, 61 (2) (316 SE2d 172) (1984). Because we conclude that Hyles was authorized to presume that information contained within the records provided by Northridge was not privileged or that Northridge had obtained a valid waiver from Riann Karpowicz, it follows that Hyles did not wrongfully intrude on Riann Karpowicz’s private affairs. The Karpowiczes rely heavily upon Susan S. v. Israels, 55 Cal. App.4th 1290 (67 Cal. Rptr. 42) (2nd Dist. 1997). That decision is, of course, not binding on this court. It is also distinguishable. Unlike the Israels defendant, who read the accusing witness’s psychiatric records and then sent the records on to another witness for review, Hyles simply reviewed the documents provided to him by Northridge and discussed nonprivileged matters with his client. Then, following a pre-trial hearing and the trial court’s ruling on the admissibility of the records obtained from Northridge, Hyles introduced nonprivileged matter into evidence. We cannot conclude that this should be considered a public disclosure of private embarrassing facts. The trial court did not err in granting summary judgment to Hyles on the invasion of privacy claim.

3. For the reasons discussed in Division 2, the trial court did not err in granting summary judgment to Hyles on any claim for intentional infliction of emotional distress. Hyles’s representation of his client simply did not rise to the level of extreme, outrageous, or egregious conduct directed toward Riann Karpowicz that would support such a claim. The trial court did not err in granting Hyles’s motion for summary judgment on this claim.

4. We find no merit in the Karpowiczes’ argument that the trial court erroneously granted summary judgment to Hyles on Riann Karpowicz’s negligence claim. The trial court correctly concluded that Hyles “owed no duty to [Riann Karpowicz] which was or could have been breached.” Hyles’s paramount duty was to the trial court, as a licensed attorney and officer of the court, and to his client, whose liberty was at stake.

5. Summary judgment in Hyles’s favor also was warranted on any claim for tortious interference with a confidential relationship. No such claim has been recognized in Georgia under the circumstances presented here. Rome Indus. v. Jonsson, 202 Ga. App. 682 (415 SE2d 651) (1992), cited by the Karpowiczes, is not controlling on this issue. That case equates a claim for tortious interference with the fiduciary relationship between a corporation and one of its officers with a claim “for tortious interference with contractual rights.” Id. at 684. An allegation was made in that case that a party induced the corporate officer to breach his fiduciary duty. Id. at 683. Even assuming that Jonsson might support a claim for interference with a confidential relationship, the record in this case is devoid of evidence that Hyles attempted to induce anyone to breach a confidential relationship or a fiduciary duty.

6. The Karpowiczes’ fraud and deceit claim fails because nothing in the record suggests that Hyles acted with an intention to deceive or that he made a misrepresentation or concealed any fact with the intention and purpose of deceiving and injuring Riann Karpowicz. See Lively v. Garnick, 160 Ga. App. 591, 592 (1) (287 SE2d 553) (1981).

7. The Karpowiczes’ claim for malicious abuse of process also fails. First, criminal process cannot form the basis of a civil malicious abuse of process claim. Gardner v. Rogers, 224 Ga. App. 165, 169 (5) (480 SE2d 217) (1996). Second, they have failed to show both elements of such a claim. Nothing in the record shows that Hyles acted with “an ulterior purpose” or that he committed “an act in the use of the process not proper in the regular prosecution of the proceeding.” (Citation and punctuation omitted.) Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 114 (2) (a) (351 SE2d 513) (1986). As argued by Hyles, he simply acted “in the course of his representation of a criminal defendant to procure potentially exculpatory evidence relevant to the credibility of the accusing witness.”

Decided November 28, 2000

Reconsideration denied December 13, 2000

Negligence, etc. Muscogee Superior Court. Before Judge Brown from Macon Circuit.

Beltran & Associates, Frank J. Beltran, Douglas V. Chandler, Bernadette C. Crucilla, for appellants.

Hawkins & Parnell, Howell Hollis III, Christine L. Mast, H. Lane Young II, for appellee.

Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, James C. Bonner, Jr., amici curiae.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

       Requiring the hospital to move to quash the subpoena does not, contrary to the Karpowiczes’ contention, place the burden on “the recipient of the psychiatrist-patient privilege to attempt to quash any subpoena issued for mental health records in order to prevent the receipt of [those records by] a criminal defendant.” Instead, this ruling simply recognizes the responsibility of psychiatric facilities to comply with the strict requirements related to the release of psychiatric records.

       Two other “loosely related” torts are encompassed within the concept of invasion of privacy: publicity placing the plaintiff in a false light in the public eye and appropriation of a plaintiff’s name and likeness for the defendant’s advantage. Sun, supra, 170 Ga. App. at 61 (2). The Karpowiczes do not appear to contend that these torts are applicable here.

       We note that the trial judge who presided over the criminal trial and the hearing testified by affidavit that “[t]he contents of the records were not in any sense broadcast, bandied about, or discussed in the course of the proceedings except as reflected in the transcript.”

       See, e.g., Turnbull v. Northside Hosp., 220 Ga. App. 883, 884 (2) (470 SE2d 464) (1996).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A2567.
    FINCH v. DOE.
    (543 SE2d 105)
   Johnson, Chief Judge.

On February 14, 1997, Kenneth Finch was driving his car southbound on Interstate 85, pulling a trailer that had been manufactured by his employer. Traffic became congested, and Finch had to stop his car behind a truck. In his rearview mirror, Finch saw that an approaching sport utility vehicle was not slowing quickly enough to stop, and he braced himself for a collision. The SUV crashed into the trailer, which then hit Finch’s car. The impact pushed Finch’s car into the truck in front of him.

The driver of the SUV pulled around Finch’s car and left the accident scene. As the SUV drove away, Finch could not see its driver because the vehicle windows were tinted, but he did see that the vehicle was a black Chevrolet Blazer and that it had an out-of-state license tag. Finch noted that the tag was blue and white, and he wrote down the tag numbers and letters. A short time later, the police arrived at the accident scene.

Finch gave the vehicle and tag information to a police officer investigating the accident. The police later traced the tag to Michigan and discovered that the registered owner of the Blazer is named Eugene Hall, who lives in Detroit. The police sent several letters to Hall, but he did not respond to them. The police informed Finch of Hall’s identity.

Finch filed the instant lawsuit for damages arising out of the accident against “John Doe.” Finch served copies of the complaint on Allstate Insurance Company, his uninsured motorist carrier, and on Travelers Property Casualty, the uninsured motorist carrier for his employer.

Allstate and Travelers each moved for summary judgment on the ground that Finch cannot maintain his “John Doe” action because he knows the identity of the hit and run driver. The trial court granted the motions. Finch appeals from the trial court’s summary judgment rulings. Because there are genuine issues of material fact as to the identity of the driver of the vehicle that hit Finch, we hold that the trial court erred in granting summary judgment to the insurance companies.

Georgia’s uninsured motorist statute provides: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown.” The statute further states: “If either the owner or operator of any vehicle causing injury or damages is unknown, an action may be instituted against the unknown defendant as ‘John Doe.’ . . ,”

This statutory language anticipates a situation in which the owner and the operator of a motor vehicle are not the same person. And in such a situation, the language is plainly alternative in allowing a John Doe action if either the owner or operator is unknown. That is, in order to file a John Doe action, the party injured in the accident need not show that both the owner and the operator of the vehicle causing the injury are unknown; rather, the injured party must show only that one or the other is unknown. Thus, under the statute’s alternative language, if the vehicle owner is unknown, but the vehicle operator is known, then a John Doe action may be filed against the unknown owner. And conversely, if the vehicle owner is known and the driver unknown, then a John Doe action may be filed against that unknown driver.

In the instant case, Finch knew before he filed his lawsuit that Hall is the registered owner of the SUV that hit him. But Finch did not see, and does not know, who was driving the vehicle at the time of the collision. While the hit and run driver might have been Hall, there is no evidence in the record identifying him, or anyone else, as the driver. Because the driver is unknown, Finch properly filed a John Doe action under the alternative language of the uninsured motorist statute.

This case is similar to, and controlled by, the case of Smith v. Doe. In Smith, the identity of the owner of the car which hit the plaintiff was known, but the evidence was in conflict as to whether that owner was driving the car at the time of the collision. The plaintiff filed a two-count complaint, naming John Doe as the tortfeasor in one count and naming the known owner as the tortfeasor in the other count. The plaintiff’s uninsured motorist carrier moved for summary judgment on the ground that a John Doe action was improper because the tortfeasor was known. The trial court granted the motion. But this court reversed that ruling because the conflicting evidence created genuine issues of material fact as to whether the driver was known, and thus a John Doe action was proper and not subject to summary adjudication.

Decided November 29, 2000

Reconsideration denied December 13, 2000

Warshauer, Woodruff & Thomas, Michael J. Warshauer, Bradford W. Thomas, for appellant.

Shivers & Associates, Patricia Guilday, Arrington & Hollowell, Gary W. Diamond, Danielle F. Forte, for appellee.

Likewise, in the instant case, there are genuine issues of material fact as to whether Hall was the driver of the vehicle that collided with Finch’s vehicle. Because there are issues of fact as to the identity of the tortfeasor, the trial court erred in granting summary judgment to Allstate and Travelers on Finch’s John Doe claim. The trial court’s erroneous summary judgment rulings are therefore reversed.

Judgment reversed.

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

       (Emphasis supplied.) OCGA § 33-7-11 (b) (2).

       (Emphasis supplied.) OCGA § 33-7-11 (d).

       189 Ga. App. 264 (375 SE2d 477) (1988).

       Id. at 264-265.

       Id. at 264.

       Id.

       Id. at 265 (1).

       Id. at 266 (3).

       Compare Kannady v. State Farm &c. Ins. Co., 214 Ga. App. 492, 494-495 (3), (4) (448 SE2d 374) (1994) (John Doe action improper where both owner and operator of vehicle known).

       See OCGA § 9-11-56.


author: Eldridge, Judge.

text:
    A00A2411.
    DRIGGERS v. CAMPBELL.
    (543 SE2d 787)
   Eldridge, Judge.

Appellant-plaintiff Wade Driggers d/b/a Falcon Construction Company brought the instant damages action against appelleedefendant Julia A. Campbell, for breach of contract as to renovation work done on her Savannah home. The plaintiff sought damages in the amount of $146,375, the balance due on a $186,375 renovation contract the defendant signed on December 13, 1997 (“December 13 contract”). The defendant timely filed her answer averring, among other things, that the December 13 contract was unenforceable as supported only by past consideration. Following a hearing on cross-motions for summary judgment, the superior court issued its order denying each of the parties summary judgment, finding that jury issues remained as to: (1) whether the December 13 contract was supported by consideration adequate to create an enforceable agreement; and (2) if not, whether there should be recovery in quantum meruit. Upon the trial of the case, the jury returned its verdict finding the December 13 contract to be an invalid contract and awarded quantum meruit damages in the amount of $16,482. The plaintiff now appeals the judgment of the superior court entered upon the jury’s verdict, contending that the superior court erred in: (1) granting defendant’s motion to amend the pretrial order at the close of plaintiff’s evidence for the purpose of adding the affirmative defenses of unconscionability, illegality, and fraud; (2) denying his motion for directed verdict as to the validity of the December 13 contract as supported by valid consideration; (3) failing to give his request to charge on “bad bargain” as not relieving a party of the duty to perform under a contract; and (4) granting defendant’s motion for directed verdict on his claim for attorney fees under OCGA § 13-6-11. Held:

1. The plaintiff claims that defendant’s belated motion to amend the pretrial order waived her affirmative defenses in that she offered no explanation for her delay. Ostroff v. Coyner, 187 Ga. App. 109, 113 (2) (369 SE2d 298) (1988) (“ ‘Generally, a proposed amendment will not be barred . . . because it is offered late in the case so long as the other party is not prejudiced. “The burden is on the party seeking amendment to show lack of laches or lack of inexcusable delay.” [Cit.]’ ”); see also Hickox v. Dubose, 172 Ga. App. 47, 48 (321 SE2d 789) (1984).

At the close of his case-in-chief, the plaintiff moved in limine, as he had done by his trial brief, to foreclose defendant’s introduction of any evidence pertinent to her affirmative defenses as waived for her failure to amend her answer to reflect these defenses before the entry of the pretrial order. The record shows that the defendant moved to amend the pretrial order in response to plaintiff’s renewed motion in limine, arguing there was no surprise in that she had raised the affirmative defenses complained of two and a half months earlier by her brief in support of motion for summary judgment and response to plaintiff’s motion for summary judgment.

Affirmative defenses are pleaded to prevent surprise and give the opposing party fair notice of what to defend. Mayer v. Wylie, 229 Ga. App. 282 (1) (494 SE2d 60) (1997). “If. . . not pleaded it is generally held that the [affirmative] defense is waived, but if it is raised ... by motion for summary judgment there is no waiver.” (Citations and punctuation omitted.) McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (a) (341 SE2d 294) (1986).

In determining whether leave to amend a pretrial order should be allowed after entry thereof, see OCGA § 9-11-15 (a), trial courts must balance “possible unfair prejudice to the nonmoving party with the movant’s reasons for delay. [Cit.]” Rowe Dev. Corp. v. Akin & Flanders, Inc., 240 Ga. App. 766, 770 (3) (525 SE2d 123) (1999). In the absence of an abuse of discretion, a trial court’s action in creating, enforcing, and modifying a pretrial order will not be disturbed on appeal. Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709) (1984). Defendant having raised her affirmative defenses on motion for summary judgment, there was neither prejudice arising out of surprise nor waiver as a matter of law. McFadden Business Publications v. Guidry, supra. Pretermitting whether the superior court adequately caused the defendant to explain her delay in moving to amend the pretrial order, the potential for prejudice not being present as a matter of law, id., defendant’s reasons for delay were immaterial in that no test for prejudice was required. Accordingly, the superior court did not abuse its discretion in granting defendant’s motion to amend the pretrial order in the instant circumstances. Ga. Power Co. v. O’Bryant, supra.

2. Neither did the superior court err in denying plaintiff’s motion for directed verdict predicated on the claims that the December 13 contract was enforceable as supported by valid consideration under OCGA § 13-3-42, assented to by the defendant’s signature, and not subject to modification upon parol evidence.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test. Evans Timber Co. v. Central of Ga. R. Co., 239 Ga. App. 262 (1) (519 SE2d 706) (1999).

Griffith v. Med. Rental Supply &c., 244 Ga. App. 120 (534 SE2d 859) (2000). Consequently, on appeal, the plaintiff must establish that “there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.” (Punctuation omitted.) Grange Mut. Cas. Co. v. DeMoonie, 227 Ga. App. 812 (490 SE2d 451) (1997). This the plaintiff has failed to do.

Pretermitting plaintiff’s arguments urging the enforceability of the December 13 contract, it is undisputed that the plaintiff did not provide the contract to the defendant for signature until after all the work performed thereunder had been done. “To constitute consideration, a promise or a return promise must be bargained for by the parties to a contract.” OCGA § 13-3-42 (a). The December 13 contract was submitted to the defendant only after the additional work had been completed which vitiated any claim that the contract was bargained for and a meeting of the minds reached thereon. See Mullinax v. Doughtie, 196 Ga. App. 747, 748-749 (1) (396 SE2d 919) (1990); Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527, 528 (336 SE2d 583) (1985). Though she had orally authorized the plaintiff to proceed with additional work for “a fair and reasonable price,” there is no evidence showing that the defendant’s understanding of what was to occur was more specific than that. It follows that the superior court properly denied plaintiff’s motion for directed verdict on this issue. Griffith v. Med. Rental Supply &c., supra.

3. Plaintiff also contends that the superior court’s instruction upon the affirmative defenses of unconscionability and fraud, while refusing to give the bad bargain charge he requested, erroneously suggested to the jury that a party’s bad bargain is a defense to its failure to perform thereunder. This claim of error is likewise without merit.

In Georgia, the power of the courts to shield contracting parties from unconscionable contractual provisions and the duty of the courts to protect the freedom of parties to contract are mutually exclusive. NEC Technologies v. Nelson, 267 Ga. 390, 396 (4) (478 SE2d 769) (1996); Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353, 354 (3) (160 SE2d 659) (1968) (The authority of the courts to limit the application of unconscionable contracts “is not designed . . . to relieve a party of a bad bargain.”). Having reviewed the charge of the superior court in its entirety as we are required to do, Hitchcock v. Key, 163 Ga. App. 901, 903 (2) (296 SE2d 625) (1982), to include its instructions as to unconscionability and fraud, we find no basis upon which the jury could reasonably have inferred that a party might avoid the results of that which is merely a bad bargain upon being charged as to the unenforceability of an unconscionable contract.

Decided December 13, 2000.

Oliver, Maner & Gray, James P. Gerard, Timothy M. O’Brien, for appellant.

McCorkle, Pedigo & Johnson, David H. Johnson, for appellee.

4. Finally, the superior court did not err in granting defendant’s motion for directed verdict on plaintiff’s claim for litigation expenses pursuant to OCGA § 13-6-11.

OCGA § 13-6-11 allows recovery of litigation expenses when defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. With respect to bad faith, the elements of bad faith that will support a claim for expenses of litigation must relate to [defendant’s] acts in the transaction itself prior to this litigation, not to the motive with which it defended the litigation. Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 200 (3) (450 SE2d 427) (1994). A recovery for stubborn litigiousness or causing unnecessary trouble and expense is authorized if no bona fide controversy or dispute existed as to the defendant’s liability.

King Indus. Realty v. Rich, 224 Ga. App. 629, 635 (6) (481 SE2d 861) (1997). “Whether or not a bona fide controversy exists is normally for the jury to decide.” (Citations and punctuation omitted.) Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) (466 SE2d 27) (1995). Where, as here, a bona fide controversy clearly exists between the parties, there is no evidence to support an award for litigation expenses under OCGA § 13-6-11. Gunnin v. Parker, 194 Ga. App. 426, 427 (1) (390 SE2d 596) (1990), cert. denied, 194 Ga. App. 911 (1990); see also Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (365 SE2d 540) (1988); Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219 (312 SE2d 386) (1983). Accordingly, the superior court did not err in directing a verdict for defendant and against the plaintiff on the question of plaintiff’s entitlement to expenses of litigation under OCGA § 13-6-11. Griffith v. Med. Rental Supply &c., supra.

Judgment affirmed.

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

       The December 13 contract incorporated amounts owing on two home renovation contracts executed earlier in 1997 and included $153,000 for the additional work which was done. A third contract executed between the parties in 1997 was for the replacement of defendant’s roof. Such contract was not in issue because the defendant had paid it out in full in the amount of $18,800.

       The superior court instructed the jury that “[a]n unconscionable contract is one abhorrent to good morals and conscience. It is one where one of the parties takes a fraudulent advantage of the other. Unconscionability is directly related to fraud and deceit; which, in turn, may be found where there is a great inadequacy of consideration or where one party to a contract is not as thoroughly knowledgeable as to the subject matter as the other.”


author: Pope, Presiding Judge.

text:
    A99A0576.
    SHADIX et al. v. CARROLL COUNTY et al.
    (543 SE2d 732)
    Decided November 13, 2000
    Reconsideration denied December 14, 2000

      Gary P. Bunch, for appellants.

      Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy

      Attorney General, David A. Runnion, Warren R. Calvert, Senior Assistant Attorneys General, David A. Basil, for appellees.
   Pope, Presiding Judge.

The decision of the Court of Appeals in this case was reversed by the Supreme Court in Jackson v. Shadix, 272 Ga. 631 (533 SE2d 706) (2000). Accordingly, our decision in Shadix v. Carroll County, 239 Ga. App. 191 (521 SE2d 99) (1999), is hereby vacated, the judgment of the Supreme Court is made the judgment of this Court and the judgment of the trial court is affirmed.

Judgment affirmed.

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

On Motion for Reconsideration.

On rehearing, appellants move the court to reconsider, arguing that the opinion violates the law of the case rule. Specifically, appellants argue that this Court should vacate its prior opinion and adopt the Supreme Court’s opinion only with respect to Division 1 of our previous opinion in Shadix v. Carroll County, 239 Ga. App. 191 (521 SE2d 99) (1999). Appellants urge that portions of Division 2 in our previous opinion which were not specifically addressed in the Supreme Court’s opinion should stand. In so arguing, they contend that the case should be remanded to the superior court, as this Court originally decided, on Counts 4 and 6 of the complaint.

Appellants correctly note that the Supreme Court’s opinion in Jackson v. Shadix, 272 Ga. 631 (533 SE2d 706) (2000), did not specifically address Counts 4 and 6 of the complaint. And the Supreme Court’s opinion did not specifically mention Division 1 of this Court’s opinion. Nevertheless, in reaching its decision, the Supreme Court stated: “[t]hus, the Court of Appeals erred in reversing the judgment of the superior court, requiring that this Court, in turn, reverse the judgment of the Court of Appeals.” Id. at 634 (2). Given this language and the absence of any language limiting the decision to Division 1, we are constrained to affirm the judgment of the superior court in its entirety. Accordingly, appellants’ motion for reconsideration is denied.

Motion for reconsideration denied.


author: Ruffin, Judge.

text:
    A00A0892.
    WOOLUMS v. THE STATE.
    (540 SE2d 655)
   Ruffin, Judge.

Virginia Woolums was convicted of aggravated battery and cruelty to children. On appeal, Woolums contends that the trial court erred in admitting the statement of the victim and in failing to merge the aggravated battery and cruelty to children convictions for sentencing purposes. She also contends that her trial attorney rendered ineffective assistance. As Woolums’s contentions lack merit, we affirm.

The facts in this case were thoroughly set forth in this Court’s opinion in Mashburn v. State. Succinctly stated, the record shows that from the afternoon of March 14 through the evening of March 15, 1998, Woolums and Ricky Lee Mashburn were alone with Nicholas, Mashburn’s five-year-old son. Over the course of the weekend, Nicholas was badly beaten. The morning of March 17, Nicholas was taken to the emergency room and was found to have bruises on his stomach, back, buttocks, scrotum, inner thighs, and scalp. He also had lacerations or puncture wounds on his face and scrotum, a bleeding spleen, and a bleeding intestinal wall. As a result of Nicholas’s injuries, both Mashburn and Woolums were charged with and convicted of cruelty to children and aggravated battery.

1. During the trial, the State introduced a videotaped statement in which Nicholas attributed his injuries to Woolums. On appeal, Woolums contends that the trial court erred in admitting the statement, arguing that it demonstrated insufficient indicia of reliability to warrant admission under the Child Hearsay Statute, OCGA § 24-3-16. We disagree.

Under the Child Hearsay Statute, a statement made by a child under the age of 14 that describes physical abuse by another is admissible in evidence “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” “[T]he trial court has broad discretion in determining the admissibility of child hearsay evidence.” In determining whether a statement is reliable, a trial court looks to many factors, including, but not limited to,

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Here, Nicholas’s statement was taken in a neutral environment with only the psychologist present. The psychologist testified that Nicholas was both coherent and cooperative during the interview, that there was no evidence that he had been threatened, and that she was unaware of any coaching that he might have received. Although several factors weighed against admitting the statement, such as Nicholas’s tender age and certain inconsistencies between his videotaped statement and prior statements, we cannot conclude that those factors required that the statement be excluded as a matter of law. The trial court’s application of the factors to be weighed is neither mechanical nor mathematical in nature. Thus, even if all factors do not indicate reliability, the trial court does not necessarily abuse its discretion in admitting the statement. Here, we cannot say that the trial court abused its discretion in admitting the videotape.

2. Woolums asserts that the trial court erred in failing to merge the cruelty to children charge with the aggravated battery charge. This assertion was also raised by Woolums’s co-defendant, and it lacks merit for the same reasons set forth in Mashburn v. State.

3. In her final enumeration of error, Woolums contends that the trial court erred in denying her motion for new trial based upon ineffective assistance of counsel. According to Woolums, her trial attorney rendered ineffective assistance by: (1) failing to seek a severance; (2) inadequately preparing for trial; (3) failing to call certain witnesses; (4) failing to negotiate a plea; (5) making inappropriate remarks during closing arguments; and (6) failing to have opening statements and closing arguments transcribed.

In order to establish a claim of ineffective assistance, Woolums must demonstrate both that her attorney’s performance was deficient and that the deficient performance prejudiced her defense. In reviewing a claim of ineffective assistance, “there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.” Unless clearly erroneous, we will affirm a trial court’s finding that a defendant received effective assistance.

(a) Woolums complains that her trial attorney filed a motion for severance, but failed to pursue it. According to Woolums, had the motion been pursued, it would have been granted “due to the incriminating statements each Co-Defendant gave about the other.”

At the motion for new trial, however, Woolums’s attorney testified that she and Woolums discussed pursuing severance, but had decided that “strategically it was probably better to go ahead and try the case with the co-defendant so that the jury would have somebody to blame, because this was the kind of case that they are going to have to find somebody guilty of.” Accordingly, the trial court was entitled to conclude that the decision not to pursue severance was strategic and, thus, not ineffective assistance.

(b) Woolums also asserts that her attorney spent little time with her before trial and did not adequately prepare for trial. Her attorney, however, testified that she spent over 142 hours working on the case including the trial. Although she could not remember every moment, she disagreed with the defendant’s contention that she spent “little time” preparing for trial. The attorney testified that she spoke with Woolums numerous times and that she reviewed all the discovery, including the videotapes provided by the State. Accordingly, the record does not support Woolums’s assertion that her attorney was ill-prepared.

(c) Although Woolums contends that her trial attorney was ineffective in failing to call certain witnesses, she does not provide either the names of the witnesses or the substance of their testimony. “[AJbsent such . . . proffer, [Woolums] cannot show there is a reasonable probability that, but for trial counsel’s failure to call [such] witnesses], the trial’s result would have been different.”

Decided October 20, 2000

Reconsideration denied December 14, 2000

Lee W. Fitzpatrick, for appellant.

Garry T. Moss, District Attorney, Debra M. Sullivan, Assistant District Attorney, for appellee.

(d) According to Woolums, her trial attorney failed to communicate any plea offer and to advise her of the consequences of going to trial. The attorney, however, testified that the prosecutor never gave her a firm plea offer and that the prosecutor was looking for “significant jail time.” Woolums’s attorney further testified that she discussed this issue with her client and that she “felt that probably the best avenue was to go ahead and try the case.” Although Woolums denied discussing the matter with her attorney, “the credibility of these witnesses was a matter for the trial court’s discretion.” Woolums has not shown that the trial court abused its discretion.

(e) Woolums argues that her attorney failed to have opening statements or closing arguments transcribed and that this failure prejudiced her. Specifically, she claims that her attorney made inappropriate remarks during closing arguments. The attorney, on the other hand, testified that she gave Woolums an opportunity to have both the opening statements and closing arguments transcribed, but that Woolums did not pay for transcription. As there is no legal requirement that these portions of the trial be transcribed, we cannot say that the attorney rendered ineffective assistance in refusing to foot the bill for such transcription. The trial court clearly determined that nothing prejudicial was said during closing, and without a transcript, we cannot say that this determination was clearly erroneous.

Judgment affirmed.

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

       244 Ga. App. 524 (536 SE2d 208) (2000).

       (Punctuation omitted.) Right v. State, 242 Ga. App. 13, 15-16 (1) (528 SE2d 542) (2000).

       (Emphasis in original.) Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       Id. at 241.

       See Knight v. State, 239 Ga. App. 710, 711-712 (1) (521 SE2d 851) (1999).

       Supra at 528-529 (3).

        Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 93) (2000).

       (Punctuation omitted.) Parrish v. State, 237 Ga. App. 274, 283 (10) (514 SE2d 458) (1999).

       Id.

       See Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

       See Knight v. State, 242 Ga. App. 363, 366 (3) (528 SE2d 855) (2000) (where attorney testified he spent ample time preparing, trial court’s denial of motion for new trial not clearly erroneous).

       (Punctuation omitted.) Mitchell v. State, 242 Ga. App. 694, 698 (6) (531 SE2d 143) (2000).

       (Punctuation omitted.) Curry v. State, 238 Ga. App. 511, 522 (5) (b) (519 SE2d 269) (1999).

       See OCGA § 17-8-5 (a).

       See Washington v. State, 238 Ga. App. 561, 562 (2) (a) (519 SE2d 234) (1999).


text:
    A00A0947.
    CALLAWAY v. THE STATE.
    (542 SE2d 596)
   Ruffin, Judge.

Harry Callaway, a chiropractor, was convicted in Spalding County Superior Court of three counts of insurance fraud for participating in a scheme whereby others would stage an automobile collision and Callaway would prepare false bills for chiropractic treatment allegedly provided. On appeal, Callaway contests the sufficiency of the evidence and raises certain other issues. For reasons discussed below, we affirm.

Michael Lawrence testified at trial that he was a “runner” for Dr. Callaway. As Lawrence described it, a runner would recruit people to stage traffic accidents, and then bring them to the chiropractor, who would pay the runner a referral fee. Lawrence testified that Dr. Callaway initially paid him “$250 per head,” but that he later “got a raise to $300.” Lawrence claimed that he was sometimes paid in advance. In addition to direct payments from Lawrence, the individuals who were treated by Dr. Callaway would receive money through settlement of their tort claims, which were expected to be greater the more often they had allegedly received chiropractic treatment.

Lawrence testified that he had talked with Callaway about the fact that accidents were being staged. According to Lawrence, when he first met Callaway and discussed the staging of wrecks, Callaway “told me he didn’t like it.” However, after Lawrence and another individual “sat down and talked with [Callaway] about it,” Callaway “got more familiar with me and he felt more comfortable with me because I would bring a lot of people in to him. So every time I come in, I didn’t necessarily have to say that this wreck was staged. He knew what I was doing.”

On October 22, 1992, Lawrence arranged with several others to stage a collision between a Cadillac and a van in Spalding County. Pursuant to the arrangement, Bobby Fish drove his Cadillac through a stop sign and struck John Leaks’ van from behind. Three other men — Michael Stewart, Joe Tyson, and Roderick Gordon — were in the van with Leaks at the time of the accident. A woman was in the Cadillac with Fish.

The police arrived on the scene and filled out an accident report. Thereafter, Lawrence and the others drove to the office of Dr. O’Brien, a chiropractor. Leaks and several others (including, apparently, individuals who were not actually in the van at the time of the collision) went in to be treated by Dr. O’Brien. Because he “couldn’t take everybody to the same chiropractor,” Lawrence then sent Stewart, Tyson, Gordon, and Fish to Dr. Callaway’s office in Clayton County, with Fish driving the Cadillac. Lawrence testified that he “called Mr. Callaway and told him [Fish] was on his way.” Lawrence testified that, at the time of the collision,

a lot of investigation was going on. ... I sent these four guys down to Dr. Harry Callaway. At that time, the investigation was kind of heavy, and Dr. Harry Callaway advised me to, if I could, send the people and . . . stay away as much as I could. So I sent the people down and ... he took the people on from there, he treated the people.

After arriving at Callaway’s office, Stewart, Tyson, and Gordon went inside for examination and treatment by Callaway. Fish claimed that he waited in the car. Gordon testified that he told Callaway that he was “supposed to be . . . bringing people back and forth,” and asked if he was “supposed to get some money.” According to Gordon, Callaway said that “Michael has the money — Michael Lawrence, I’ve already paid Michael.”

Stewart, Tyson, and Gordon each visited Dr. Callaway for examination or treatment on subsequent occasions. Lawrence testified that he talked with Callaway in late December, and that Callaway “told me that I needed to get these guys back in so they could sign release forms so that they can get their checks and that he could get his money out of the case.” Lawrence said that, because these three had been to Callaway only a few times, Callaway told him they would need to sign “some kind of form ... to say they came in anyway.”

In late December, Stewart, Tyson, and Gordon each signed bills prepared by Callaway’s office purporting to show the dates they had been treated, the types of treatment, and the cost. These bills indicated that Stewart and Gordon had visited Callaway’s office for treatment 24 times each, and that Tyson had visited Callaway 21 times. Each of the bills was signed by Callaway and the patient, acknowledging that “the above dates and fees are correct” and authorizing payment directly to Callaway. These bills were subsequently sent to Federated Mutual Insurance Company, Leaks’ insurer. Gordon’s bill was also sent to his insurer, Progressive Insurance Company.

At trial, Stewart, Tyson, and Gordon all testified that they had not actually seen Callaway as often as reflected in the bills. Tyson testified that he had seen Callaway at most on three or four occasions, while Stewart said he saw Callaway ten or eleven times. Gordon did not know exactly how many times he went to see Callaway, but knew that it was less than 24. Stewart said that he discussed the discrepancy with Callaway before signing the bill, and that Callaway “told me the more visits that I had, the more money I’d get at the end of the claim.”

Callaway admitted having a relationship with Lawrence, but denied that Lawrence was a “runner.” He testified that Lawrence

came into our office in about 1989 and he said that he had a lot of people that he knew — they contacted him when they got in wrecks, and that would I be interested in him bringing them to me or whatever. I said, well, I can’t pay you for bringing people to me, but... if you will actually transport these people and get them to and from me, that I can pay you Eight Dollars per visit. It would be against the law for me to pay you, you know, for a person per se.

Callaway said that he never paid Lawrence any money other than $8 per visit for transporting people to his office. He denied that he billed for any services that were not rendered.

Callaway testified that, during 1992, he would usually see between 40 and 70 patients a day. When a patient came in to see him, a record of the visit would be made on the patient’s “o-sheet,” a piece of paper marked like a blank calendar. Callaway would not personally fill out the o-sheet, or even look at the patient’s file, but would leave that to the person at the front desk. However, Bonnie Wilson, a former employee of Dr. Callaway, testified that she had personally seen Callaway on occasion fill out o-sheets for patients who had not actually been to see him.

1. A person commits the offense of insurance fraud when he
knowingly or willfully . . . [m]akes or aids in the making of any false or fraudulent statement or representation of any material fact or thing . . . [i]n any written statement or certificate ... for the purpose of procuring or attempting to procure the payment of any false or fraudulent claim or other benefit by an insurer.

Count 1 of the indictment alleged that Callaway made a false and fraudulent statement for the purpose of procuring payment of an insurance claim from Progressive, relating to treatment allegedly given to Gordon. Counts 2 and 3 alleged that Callaway made false and fraudulent' statements for the purpose of procuring payment of an insurance claim from Federated, relating to treatment allegedly given to Stewart and Tyson. Each count alleged that the insurance claim was false and fraudulent in that Callaway (1) “did knowingly and willfully aid and abet Michael Lawrence who did knowingly and willfully encourage, hire, counsel and procure the insureds, Bobby Fish and John Leaks, to stage an automobile wreck”; and (2) “did knowingly and willfully aid and abet Michael Lawrence who did knowingly and willfully encourage, hire, counsel and procure others, to wit: Roderick G. Gordon, Michael Stewart, and Joe Tyson, to claim that they were injured” in the accident.

(a) Callaway claims that the evidence was insufficient to show his participation in an insurance fraud scheme because there was no evidence that he knew the collision in question was staged. He points to the fact that Lawrence never testified that he told Callaway that this specific collision was staged. Assuming that it was necessary for the State to prove such knowledge, however, there was significant evidence from which the jury could have concluded that Callaway actively participated in the insurance fraud scheme with the understanding that the wreck was staged.

According to Lawrence, Callaway was aware that Lawrence was sending him people from staged wrecks, and was paying him $250-$300 per head for any such referrals. There was clearly evidence that Callaway knew of Lawrence’s involvement with the collision in question. Lawrence testified that he called Callaway after the collision and told him that he was sending people over. Callaway told him to “send the people and . . . stay away as much as I could.” When Gordon asked Callaway about receiving payment, Callaway told him that “Michael has the money — Michael Lawrence, I’ve already paid Michael.” This statement not only shows that Callaway was aware of Lawrence’s involvement, but also shows that he knew Gordon expected to be paid for his participation in the wreck. Given the nature of Callaway’s relationship with Lawrence, this provides strong evidence that Callaway understood the collision was staged. Such conclusion is reinforced by Callaway’s actions in preparing false bills, urging Lawrence’s assistance in getting his accomplices to sign these false bills, and inducing Stewart to sign a false bill by telling him he would get more money in his tort claim. Considered in the light most favorable to support the verdict, the evidence was thus sufficient to enable the jury to conclude that Callaway was an active and knowing participant in the insurance fraud scheme.

(b) Callaway contends that the evidence was insufficient because there was no evidence that he actually received any money from an insurance company. He notes that the indictment alleged that he “did knowingly and willfully procure and attempt to procure payment.” Because the indictment alleged that he procured payment, he contends that the State was required to prove such procurement in order to obtain a conviction.

This contention is without merit. The actual procurement of payment from an insurer is not an element of the crime of insurance fraud. Rather, the State must prove that the defendant made a false statement “for the purpose” of procuring or attempting to procure payment of a false or fraudulent claim. Once a defendant makes a false statement for such purpose, the crime is complete, and it is irrelevant whether or not the claim is subsequently paid.

We have previously held that

[m]ere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated, and [they] must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence.

To put it differently, “[w]hile all material averments — i.e., averments that describe either the offense or the manner in which it was committed — must be proved as alleged, an unnecessary description of an unnecessary fact need not be proved.” Because actual receipt of payment is not an element of insurance fraud, any allegation of such receipt is unnecessary, not descriptive of the offense or the manner in which it was committed, and mere surplusage. Accordingly, the State was not required to prove actual receipt of payment in order to obtain a conviction.

(c) Callaway claims that the evidence was insufficient as to Counts 2 and 3 because “Federated Mutual Insurance Company was not an insurer for Michael Stewart or Joe Tyson as alleged in the Counts.” He notes that Ginger Murrah, Federated’s claims supervisor, testified that Federated refused to pay the claims because it believed Stewart and Tyson “were in the other vehicle and not in our policyholder’s vehicle” at the time of the collision. Whether Federated was contractually obligated to pay the medical bills, however, is irrelevant to a prosecution for insurance fraud. The crime is committed when one makes a false statement in writing “for the purpose of procuring or attempting to procure” payment of a fraudulent claim from an insurer. The evidence clearly authorized the jury to conclude that the false bills were created “for the purpose of” procuring payment. It makes no difference that such attempt was unsuccessful.

2. Callaway argues that venue with respect to Counts 2 and 3 was not proper in Spalding County, where the staged wreck occurred. This contention is without merit. Under OCGA § 33-1-9 (b), the crime of insurance fraud is considered to have been committed “in any county where any act in furtherance of the criminal scheme was committed.” As discussed above, the evidence was sufficient for the jury to conclude that Callaway was a participant in the criminal scheme. Because the staged wreck was clearly an act in furtherance of such scheme, venue was proper in Spalding County.

3. Callaway contends that the trial court erred in failing to give a special instruction on venue. He relies on Osborn v. State, where we held that

[a]s a general rule, where there is sufficient evidence of venue and the trial court charges the jury generally on the law of reasonable doubt, it is not necessary for the court to charge the jury that proof of venue is a material allegation of the indictment. However, where the case against the defendant is based upon his activities as a party or conspirator to the crime charged in the indictment and these activities took place in a county other than the one in which the prosecution is brought, a special instruction on venue is necessary to clarify the nature of the criminal activity for which he is on trial.

Because Callaway was charged with participation in a criminal conspiracy, and because the acts allegedly committed by him took place in Clayton County, he contends that a special charge on venue was required by Osborn. He does not state what that charge should have consisted of, nor does he contend that he was harmed by the failure to give such charge. For the reasons discussed below, we conclude that any error in failing to give a special charge on venue was harmless.

The defendant in Osborn was prosecuted in Gwinnett County for selling marijuana. The evidence showed that the defendant “fronted” marijuana to a dealer, with the expectation that he would be paid from the proceeds of a subsequent sale. This dealer sold some of the marijuana to an undercover officer in Gwinnett County. The dealer informed the police that he was supposed to meet the defendant that evening in DeKalb County. The police then arranged a sting operation, and arrested the defendant in DeKalb County after he gave the dealer two more bags of marijuana. In reversing the defendant’s conviction for failure to give a special instruction on venue, we noted that the trial court “did not make it clear that the appellant was on trial for a sale of marijuana in Gwinnett as opposed to DeKalb County. ... In view of the nature of the evidence against him, this omission must necessarily be considered reversible error.”

Osborn relied upon our earlier decision in Jones v. State, where we recognized that a special instruction on venue may be required in certain cases. The defendants in Jones were prosecuted in Bulloch County for conspiracy to possess and sell marijuana, although the actual sale was made in Candler County. The existence of venue in Bulloch County rested solely on the alleged acts of two of the defendants’ purported co-conspirators. We reversed the defendants’ convictions due to the trial court’s failure to instruct on venue, noting that

under the court’s charge, it was possible for the jurors to have found appellants guilty on the basis of the overt acts committed in Candler County, while concluding that the State failed to meet its burden of proof with respect to the overt acts alleged to have taken place in Bulloch County.

Even assuming that the trial court was required to give a special instruction on venue in this case, nothing in Osborn or Jones suggests that failure to do so is always reversible error, or that it is inappropriate to apply a harmless error analysis. The failure to provide venue instructions in Osborn and Jones was clearly harmful, because in each case the jury could have convicted the defendants of the crimes charged without finding that any act in furtherance of the conspiracy was committed in the county where the defendants were charged. The same does not apply in this case. As discussed above, the crime of insurance fraud is considered to have been committed in “any county where any act in furtherance of the criminal scheme was committed.” The indictment alleged that Callaway participated in the criminal scheme by aiding and abetting Lawrence in connection with the staged wreck, which indisputably occurred in Spalding County, and in the making of injury claims arising from the wreck. In order to convict Callaway, therefore, the jury was required to find that he was a participant in a criminal scheme of which the staged wreck was a central part. Thus, in contrast to Osborn and Jones, the jury could not have convicted Callaway under the indictment without also finding that the crime was committed, and venue therefore proper, in Spalding County. Accordingly, any error in failing to give a special venue instruction was harmless.

4. Callaway argues that his conviction on Count 1 cannot stand because it was based on the uncorroborated testimony of Lawrence, an alleged co-conspirator. He claims that, without Lawrence’s testimony, there would be no evidence connecting him to the insurance fraud scheme. We disagree.

Although a felony conviction may not be based on the uncorroborated testimony of an accomplice, the corroborating evidence itself need not be sufficient to warrant a conviction. “[S]light evidence, which may be circumstantial, connecting the accused with the crime is sufficient corroboration.” In this case, Callaway’s participation in the insurance fraud scheme was corroborated by a number of items of evidence, including his statement to Gordon that he had already paid Lawrence, his falsification of medical bills, and his attempt to get Stewart to sign a false bill by telling him that the more visits he had, the more money he would receive in his tort claim.

5. During Lawrence’s direct examination, the prosecutor asked him to describe his discussions with Callaway regarding the fact that collisions were being staged. Lawrence responded, “Well, when I first started working for him, I was introduced to him by a guy named Tommy Ellis, who also staged accidents with him. He was already dealing with him at that time.” Outside the presence of the jury, defense counsel then moved for a mistrial on the grounds that Lawrence’s response improperly placed Callaway’s character into evidence. The trial court denied the motion, but agreed to instruct the witness “not to reengage in that same testimony.” Defense counsel declined the court’s offer to give a curative instruction to the jury, such as an instruction to disregard Lawrence’s response. Lawrence gave no further testimony regarding Ellis or any prior staging of accidents by Callaway. On appeal, Callaway asserts that the trial court erred in denying his motion for a mistrial.

Where a defendant moves for a mistrial after a prosecution witness voluntarily injects improper and prejudicial matters, it is within the trial court’s discretion to determine whether a mistrial must be granted or whether the effect can be corrected by curative instructions to the jury. “That discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.”

Assuming that Lawrence’s response did, in fact, improperly place Callaway’s character into evidence, Callaway makes absolutely no argument as to how a mistrial was necessary to preserve his right to a fair trial, and does not even assert that curative instructions would have been insufficient to address any harm. Instead, he simply states that a mistrial was required because Lawrence’s response “indisputably placed Harry Callaway’s character into evidence.” In the absence of any argument on this point, and given the fleeting nature of Lawrence’s reference to prior incidents — in the context of a two-day trial involving numerous witnesses and voluminous evidence against Callaway — we cannot say that the trial court abused its discretion in concluding that a mistrial was unnecessary and that curative instructions would have sufficed to remove any prejudicial impact the objectionable testimony might have had. Accordingly, the trial court did not err in denying the motion for mistrial.

6. Callaway contends that his trial counsel, Lee Sexton, was ineffective for failing to present evidence that he claims would have supported his case. Callaway presented testimony from several witnesses at the motion for new trial hearing, and cross-examined Sexton regarding his representation. Following the hearing, the trial court entered an order denying the motion for new trial as to each ground.

In order to establish a claim of ineffective assistance of counsel, a defendant must satisfy two burdens. First, he must show that counsel’s performance was deficient; second, he must show that he was prejudiced by the deficient performance. With respect to the first prong, the defendant must overcome the “strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” With respect to the second prong, the defendant must show a reasonable probability that, but for his counsel’s errors, the result of the trial would have been different. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.”

(a) At the motion for new trial hearing, Callaway presented testimony regarding an incident that allegedly occurred in his office more than a year before the staged collision. Helen Shelton, a patient of Callaway, testified that she saw Lawrence and three others come into Callaway’s office sometime in 1991. She saw Lawrence write seven names down on the registration pad. According to Shelton, the employee at the front desk, Wayne Gant, told Lawrence to leave. Callaway then came out, counted the number of names Lawrence had written on the register, and told him to leave. Gant also testified about the incident, stating that he asked Lawrence why he had listed seven names when he had brought only three patients. According to Gant, Lawrence said the others would come later that afternoon. Gant said that he told Lawrence to leave because “he had done that before. ... I’d caught him numerous times.”

James East testified that he worked for Callaway from July 1991 until November 1993, and that he never saw Lawrence in the office. He said that the incident described by Shelton and Gant occurred before July 1991. Callaway also testified at the motion for new trial hearing, and claimed that he never saw Lawrence after the 1991 incident until early 1995, when Lawrence came into his office with two other individuals, said that he had been arrested for insurance fraud, and asked for money.

Callaway contends that Sexton was ineffective for failing to investigate the 1991 incident and present testimony from Shelton and Gant regarding it. He argues that this incident would have shown that Lawrence had a motive to falsify his testimony. It is true that “[c]ounsel has a duty to make reasonable investigations.” However, the record does not show that counsel’s failure to discover that Shelton and Gant might have relevant testimony was the result of an unreasonable investigation. Although Callaway now contends that his alleged 1991 encounter with Lawrence was fraught with significance, and was indeed the last time he saw Lawrence before 1995, there is no indication that he ever mentioned this to Sexton before trial. By his own admission, Callaway saw between 40 and 70 patients per day, and there is no evidence that he ever let Sexton know that any of them may have witnessed an encounter between himself and Lawrence a year and a half before the staged accident — or that such an encounter had even occurred. When Callaway was questioned at trial about his relationship with Lawrence, he completely failed to mention that he had thrown Lawrence out of his office in 1991 for falsely signing patients’ names, that he had not seen Lawrence for several years after this incident, and that Lawrence had suddenly shown up in early 1995 demanding money. Instead, he simply said that he paid Lawrence $8 per patient whom Lawrence brought to the office, without any suggestion of a rift between them. A client cannot simply withhold relevant information within his knowledge, of which his attorney would have no reason to be aware, and then claim that the attorney was ineffective for failing to discover such information on his own.

Moreover, with respect to Gant, at least, Sexton clearly had strategic reasons for refusing to call him as a witness. Gant was subpoenaed to testify as a witness for the State, and had apparently made statements to investigators and signed an affidavit incriminating Callaway. Gant testified that, on the day of trial, he spoke briefly with Sexton “[a]bout me testifying ... in relation to what went on in the office.” He did not testify, however, that he told Sexton about the alleged 1991 incident. Sexton testified that “if the State actually called [Gant], I knew what he was going to testify to on my cross examination, that he really didn’t say all these things, he really, apparently, didn’t make these allegations.” Sexton said that Gant signed an affidavit stating that he had been threatened by the Georgia Bureau of Investigation, which Sexton showed to the prosecutor to discourage him from calling Gant. The State did not, in fact, call Gant as a witness. Had Sexton then called Gant as his own witness, Gant would have been subject to potentially harmful cross-examination by the State regarding his prior statements, and Sexton testified that Gant “would have been harmful to Dr. Callaway.” Thus, the decision not to call him was clearly a strategic decision.

(b) Cajlaway also contends that Sexton was inefficient for failing to present testimony from East, who testified at the motion for new trial hearing that he dealt with “99 percent” of Callaway’s patients and filled out the o-sheets showing the treatment received. He said that he never saw any records reflecting treatment that had not been provided. East testified that he met with Sexton and the prosecutor on the day of trial. Although Sexton could not recall East’s name, he recalled meeting with him, and said that he did not present his testimony because

I just didn’t feel that was relevant, the fact that he didn’t see it. The whole point was, the State was alleging that he was doing it in a conspiracy with another lawyer . . . [and] with these other gentlemen, too. I wouldn’t expect Dr. Callaway to let his employees see it, nor would — that would’ve been nonsense to a jury that I call a witness that said he didn’t see Dr. Callaway alter records.

“The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel.” Although counsel’s decision not to call East may be subject to question, we cannot say that the trial court’s determination that counsel was not ineffective in this instance was clearly erroneous.

(c) Finally, Callaway contends that Sexton was ineffective for failing to present evidence regarding the extent of coverage tinder Progressive’s insurance policy. Because Callaway did not raise this issue in his motion for new trial, however, he has waived the right to raise it on appeal.

Decided November 21, 2000

Reconsideration denied December 14, 2000

August F. Siemon III, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 33-1-9 (a).

       Although the enumeration contends that the evidence was insufficient only as to Count 1, the argument section of Callaway’s brief addresses all three counts.

       Clearly, preparing a bill for treatment not actually provided, knowing that the bill would be used to procure payment from an insurer, would constitute insurance fraud even if the underlying collision was not staged, or the provider was unaware that it had been staged. As Callaway points out, however, the indictment in this case alleged that the fraud consisted of his aiding and abetting Lawrence with respect to the staged wreck, as opposed to simply preparing fraudulent bills. Because this allegation described the manner in which the offense was committed, the State was required to prove it at trial. See McBride v. State, 202 Ga. App. 556, 557 (415 SE2d 13) (1992).

       It was not necessary to show that Callaway knew of the staged wreck before it occurred. “[0]ne who joins a conspiracy takes it as he finds it and is responsible for acts previously done in carrying out such conspiracy.” (Punctuation omitted.) Brown v. State, 177 Ga. App. 284, 288 (4) (339 SE2d 332) (1985).

       See OCGA § 33-1-9 (a).

       (Punctuation omitted.) Robinson v. State, 76 Ga. App. 313, 314 (45 SE2d 717) (1947).

       (Citation omitted.) McBride, supra.

       The indictment does not, in fact, allege that Federated is the insurer for Stewart or Tyson, but simply alleges that it is “an insurer.”

       OCGA § 33-1-9 (a).

       For some reason he does not assert that venue was improper as to Count 1.

       The only arguable reference to venue in the court’s charge was where it instructed the jury that it would be authorized to convict Callaway if it found beyond a reasonable doubt that he “did commit in Spalding County, Georgia, the crimes as charged in the bill of indictment.”

       161 Ga. App. 132 (291 SE2d 22) (1982).

       (Citations omitted.) Id. at 136 (3).

       Indeed, his argument consists simply of quoting the above language from Osborn and noting that the trial court gave no charge on venue other than that mentioned above.

       Id. at 136 (3).

       135 Ga. App. 893, 900 (7) (219 SE2d 585) (1975).

       Id. at 900-901 (7).

       Although it does not appear that the defendants in Osborn and Jones requested a special charge on venue, neither case discusses this issue. We note that, generally, “[i]t is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party.” Holt v. State, 244 Ga. App. 341, 344 (3) (535 SE2d 514) (2000). Such failure constitutes reversible error only where “the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.” (Punctuation omitted.) Id., quoting Kitchen v. State, 263 Ga. 629, 630 (1) (436 SE2d 645) (1993). Because we conclude that any failure to provide a special instruction on venue was harmless in this case, we need not consider whether Callaway’s failure to request such an instruction affects our analysis.

       OCGA § 33-1-9 (b).

       See Livery v. State, 233 Ga. App. 882, 886 (3) (506 SE2d 165) (1998) (applying harmless error analysis to failure to give charge on circumstantial evidence).

       Although this argument would apparently also apply to Counts 2 and 3, the enumeration addresses Count 1 only.

       See OCGA § 24-4-8; Reaves v. State, 242 Ga. 542, 543 (1) (250 SE2d 376) (1978).

        Reeves v. State, 244 Ga. App. 15, 18 (1) (c) (534 SE2d 179) (2000).

        Crawford v. State, 256 Ga. 585, 587 (2) (351 SE2d 199) (1987).

       (Punctuation omitted.) Smith v. State, 244 Ga. App. 165, 168 (3) (534 SE2d 903) (2000).

       We question whether evidence that Callaway had previously participated in similar staged accidents would in fact be inadmissible character evidence, particularly if such evidence related to Lawrence’s relationship with Callaway. For some reason, however, the State makes no attempt to argue that such evidence was admissible, and essentially concedes that it was improper.

       See Smith, supra. Of course, because Callaway declined the court’s offer to give curative instructions, he cannot now complain that the court failed to do so. Jones v. State, 250 Ga. 166, 168 (3) (296 SE2d 598) (1982).

        Lowe v. State, 264 Ga. 757, 758 (3) (452 SE2d 90) (1994).

       (Punctuation omitted.) White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995).

       Id.

       (Punctuation omitted.) Id. at 583-584 (1).

       (Punctuation omitted.) Williams v. State, 211 Ga. App. 393, 395 (2) (439 SE2d 11) (1993).

       See Ward v. State, 242 Ga. App. 246, 248 (2) (529 SE2d 378) (2000) (decisions not to call certain witnesses are tactical or strategic in nature and do not equate with ineffectiveness of counsel).

       (Punctuation omitted.) McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998).

       See McGhee v. State, 237 Ga. App. 541, 545 (1) (515 SE2d 656) (1999) (“ ‘any allegation not raised at trial is deemed waived’ ”).


text:
    A00A1053.
    McCLUNG SURVEYING, INC. et al. v. WORL et al.
    (541 SE2d 703)
   Pope, Presiding Judge.

James L. and Desiree Worl filed suit against McClung Surveying, Inc. and Perry E. McClung* asserting claims for fraud, breach of contract and intentional infliction of emotional distress in connection with a survey McClung prepared on their property. McClung moved for summary judgment, but the motion was denied. Following the trial court’s certification of the matter for immediate review, we granted McClung’s application for interlocutory appeal.

On or about July 30, 1991, the Worls entered into a contract to purchase a house bordering the Yellow River in Gwinnett County from J. H. and Ann Ledbetter for a purchase price of $147,500. The contract provided that the sale would close on or before August 29, 1991. The Worls applied for a Veterans Administration (VA) loan. In response to their application, the Worls received a Certificate of Reasonable Value from the VA that valued the property at only $132,000. The certificate also noted that the property was in a flood hazard zone and that flood insurance would be required. The Worls became concerned about the purchase and consulted their real estate agent. According to the Worls, the real estate agent told them that the VA often overstated the extent of a flood hazard zone and will often undervalue the property. The realtor then obtained a copy of a survey on the property.

Although the purchase contract did not specifically require a survey, the closing attorney had retained McClung Surveying on behalf of the Worls’ lender to survey the property. The McClung survey reflected that part of the property was in a flood hazard zone, but specifically noted that the house itself was not. Perry McClung testified that this conclusion was made in reliance upon the recorded plat of the subdivision.

Prior to consulting the plat, however, McClung had checked the applicable flood map from the Federal Emergency Management Agency (FEMA). Because the FEMA map did not show subdivision or individual property lines, McClung overlaid a subdivision map onto the FEMA map. This procedure indicated that the Worls’ property was in the flood hazard zone, but Perry McClung testified that the use of an overlay creates a margin of error in pinpointing the flood hazard zone boundary line and in locating a particular lot in relation to the boundary. Therefore, McClung testified that his company relies on the flood line as shown on the county plat because he believes that hydrology studies conducted in conjunction with preparing a plat are more accurate than the FEMA flood maps. At the time the survey was prepared, McClung offered to perform an elevation study, which is the only way to conclusively determine whether the house was in the flood hazard zone, but the closing attorney declined the offer.

The Worls testified that they relied upon the McClung survey in deciding to proceed with the purchase of the house. They ordered a second appraisal, which valued the property at $140,500. The Worls were able to renegotiate the purchase price based upon this value, and the sale closed on August 29. At the closing, the Worls received a Notice to Borrower of Special Flood Hazard Area, which offered them the opportunity to purchase flood insurance, but they declined.

The Worls refinanced their house approximately one year later. The lender again ordered a survey of the Worls’ property in conjunction with the refinancing. That survey noted that the Worls’ property lay in a flood hazard zone, but again noted that the house was not. Although the Worls gave the new surveyor a copy of the McClung survey, the second survey shows that the determination that the house was outside of the flood hazard zone was based upon another document, which was revised on May 4,1992, after the McClung survey was prepared. The Worls received a copy of this survey along with another notification of the special flood hazard zone, but again declined insurance.

The Worls’ house first flooded on Thanksgiving Day in 1992. And approximately two weeks later it flooded again. The house flooded four more times between 1992 and 1996. After unsuccessful attempts to get information from the Army Corp of Engineers, the Worls testified that they spoke with the Gwinnett County Drainage Department on two occasions and were told by unidentified county employees that the flooding resulted from unusually heavy rains. Then in February 1996, the Worls testified that they spoke with a supervisor with the county drainage department, who informed them that their property was in the flood hazard zone.

The Worls filed their complaint in January 1997, contending that McClung failed to disclose that the FEMA map showed that their house was located in a flood hazard zone.

1. McClung first asserts that the trial court erred in denying their motion as to the Worls’ fraud claim. The Worls assert that the statement on the McClung survey that their house was not in a flood hazard zone was an intentional misrepresentation constituting actual fraud. In support of this assertion, they point to their expert’s affidavit which stated that in the expert’s professional opinion, McClung “must have known that the house was in the flood hazard zone.”

Assuming, without deciding, that this assertion creates a jury question as to fraud on the part of McClung, we find that the Worls’ claims are time-barred. The Worls received a copy of the McClung survey on or around the closing date of August 29, 1991. Their complaint was not filed until January 1997, long past the four-year statute of limitation for fraud. OCGA § 9-3-31. The Worls assert, however, that McClung’s actual fraud tolled the statute of limitation under OCGA § 9-3-96.

But to establish tolling the Worls must prove fraud sufficient to have debarred or deterred them from discovering their cause of action. OCGA § 9-3-96. Therefore, they must establish the following three elements:

(1) actual fraud on the part of the defendant involving moral turpitude, (2) which conceals the existence of the cause of action from the plaintiff, and (3) plaintiff’s reasonable diligence in discovering his cause of action, despite his failure to do so within the time of the applicable statute of limitations.

(Citations omitted.) Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). We find that the Worls have failed to present a jury issue as to the last element. “Although questions of due diligence often must be resolved by the trier of fact, that is not always the case. A party may fail to exercise due diligence as a matter of law.” Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 360 (4) (518 SE2d 154) (1999). See also Fowler v. Overby, 223 Ga. App. 803, 804 (1) (478 SE2d 919) (1996). And “[m]ere ignorance of facts constituting a cause of action does not prevent the running of a statute of limitations.” (Citation and punctuation omitted.) Macomber v. First Union Nat. Bank &c., 212 Ga. App. 57, 59 (2) (441 SE2d 276) (1994).

Prior to receiving the McClung survey, the Worls had received a VA certificate indicating that their property was in a flood hazard zone and valuing the property at $15,500 below their proposed purchase price. Based upon statements made by their realtor, the Worls chose to disregard the VA certificate and rely upon the McClung survey. Then fifteen months later, their house flooded twice within a span of two weeks. We find that once the house flooded, the Worls were on notice of a potential problem with the survey. At that point they had received conflicting information about the status of their property. When they experienced the very problem the survey indicated would not occur, the Worls were on notice that the survey may have been inaccurate. See Hahne v. Wylly, 199 Ga. App. 811, 813 (406 SE2d 94) (1991) (fraud limitation period tolled until purchasers first experienced problems with septic tank); Gerald v. Doran, 169 Ga. App. 22, 23 (311 SE2d 225) (1983) (limitation period began to run when purchasers first knew of problem with house’s sewage system). But not until 1996 and four more incidents of flooding did the Worls commission their own investigation into the true status of their property.

And although the Worls testified as to hearsay conversations with unidentified county drainage department employees and other government officials, who provided apparently inaccurate information, we find this evidence was insufficient to create a factual question on the issue of due diligence. “The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity.” (Citation and punctuation omitted.) Artzner v. A & A Exterminators, 242 Ga. App. 766, 771 (1) (531 SE2d 200) (2000).

Accordingly, the statute of limitation on the Worls’ fraud claim began to run no later than mid-December 1992, and their fraud claim filed in January 1997 is barred by the statute of limitation.

2. McClung next asserts that the trial court should have granted their motion with regard to the Worls’ breach of contract claim. In support of this argument, the Worls assert that they were third-party beneficiaries of the contract between McClung and the closing attorney.

In order for a third party to have standing to enforce a contract it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. Unless such an intention is shown from the face of the contract, defendant is under no duty and consequently plaintiff acquires no right as the third party beneficiary.

(Citations and punctuation omitted.) Scott v. Mamari Corp., 242 Ga. App. 455, 457 (1) (530 SE2d 208) (2000).

Here, the parties had no written contract. The only writing in the record referencing the retention of McClung’s services is an invoice listing the closing attorney’s law firm as the customer. And while the invoice identifies the Worls as the purchasers of the property, that reference does not clearly show that they were intended beneficiaries of the contract between the closing attorney and McClung. “A contract is intended to benefit a third party when the promisor engages to the promisee to render some performance to a third person.” Scott v. Mamari Corp., 242 Ga. App. at 457 (1). Here, the closing attorney hired McClung on behalf of the lender. The Worls did not request a survey as a part of their contract. Rather, the contract provided that should the lender require a survey, the seller would pay for it. And the sellers paid for the McClung survey at closing. Therefore, even if McClung and the closing attorney were aware that the Worls would receive a copy of the survey and perhaps rely upon it, there is nothing in the record to suggest that the Worls were intended, and not merely incidental, beneficiaries of the contract.

Moreover, the Worls’ breach of contract claim would be barred by the four-year statute of limitation applicable to nonwritten contracts. OCGA § 9-3-25.

3. McClung also argues that the trial court should have granted its motion as to the Worls’ claim for intentional infliction of emotional distress. We agree.

To prove their claim for intentional infliction of emotional distress, the Worls are required to show that (a) McClung’s conduct was intentional or reckless, (b) the conduct was extreme or outrageous, (c) the conduct caused the Worls emotional distress and (d) their emotional distress was severe. Ashman v. Marshall’s of MA, 244 Ga. App. 228, 229 (1) (535 SE2d 265) (2000). Whether the alleged conduct on the part of McClung was sufficiently extreme or outrageous was a question of law for the court. Id. In order to rise to the requisite level of outrageousness, “[t]he defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” (Citation and punctuation omitted.) Frank v. Fleet Finance, 238 Ga. App. 316, 318 (518 SE2d 717) (1999).

The alleged misrepresentations by McClung in this case cannot be described as extreme, outrageous, atrocious, intolerable or beyond the bounds of decency. See Frank v. Fleet Finance, 238 Ga. App. at 318. Accordingly, the trial court improperly denied McClung’s motion for summary judgment on the claim of intentional infliction of emotional distress.

Decided November 9, 2000

Reconsideration denied December 14, 2000.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, for appellants.

Cornelison & Van Gelderen, Leon Van Gelderen, John A. Ziolo, for appellees.

Further, the Worls’ claim for intentional infliction of emotional distress would be barred by the applicable two-year statute of limitation. See OCGA § 9-3-33; Bauer v. North Fulton Med. Center, 241 Ga. App. 568, 569 (2) (527 SE2d 240) (1999).

Judgment reversed.

Miller and Mikell, JJ., concur.

       For ease of reference, McClung Surveying, Inc. and Perry E. McClung will be referred to collectively as “McClung.”

       The cost of the survey was charged to the sellers at closing.