text:
    A99A2121.
    COLLIER v. BOARD OF COMMISSIONERS OF PIKE COUNTY.
    (524 SE2d 292)
   Blackburn, Presiding Judge.

Patricia Collier, Chief Voting Registrar for Pike County, appeals the trial court’s order removing her from office after the Pike County Board of Commissioners brought the underlying action pursuant to OCGA § 21-2-212 (a). Collier contends that there was insufficient evidence to support her removal from office “for cause.” Because the trial court’s order removing Collier from office “for cause” was supported by some evidence, we affirm.

OCGA § 21-2-212, in pertinent part, provides that the senior superior court judge has the right to remove a registrar “at any time for cause after notice and hearing.” In the present case, Collier received notice and a hearing and contests only whether the evidence was sufficient to remove her “for cause.”

The evidence at the hearing revealed that, during the July 1998 primary election, approximately 58 people were denied the right to vote in the District 2 county commission race because their names were placed in the wrong district. After a contest to the election, the vote in District 2 was voided, and a new election was held. Collier agreed that, as Chief Voting Registrar, it was her responsibility to ensure that electors were placed in the proper district.

During the November 1998 general election, Collier mishandled the absentee ballots. Specifically, Collier opened the ballots in violation of OCGA § 21-2-386 (a) (2). Additionally, nine of the absentee ballots were misplaced until the next morning when Collier found them in her desk. As a result, the District 2 county commission vote was voided and again required a new election.

Decided November 1, 1999.

Ellis R. Garnett, for appellant.

Beck, Owen & Murray, James R. Fortune, Jr., for appellee.

Although OCGA § 21-2-212 allows for the removal of Collier “for cause,” there have been very few decisions addressing what constitutes “cause” as used in this Code section. In Lancaster v. Hill, 136 Ga. 405, 408 (1) (71 SE 731) (1911), the Supreme Court of Georgia determined that “cause” in a similar statute meant “legal cause, and that which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.” In 1971, the attorney general issued an opinion addressing this issue which, in addition to citing the Lancaster opinion, determined that “nonfeasance or any instance where the registrar might not be doing an effective job would be as much a cause for removal from office as malfeasance in office.” Op. Atty. Gen. 71-168.

The trial court specifically found that both voided elections were directly caused by Collier’s failure to follow the law and properly administer the duties of her office. “The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them.” (Punctuation omitted.) Vance v. Jackson, 233 Ga. App. 480, 481 (1) (504 SE2d 529) (1998). The trial court’s determination is supported by evidence as is its finding that Collier’s actions were sufficient to support her removal from office for cause.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       Attorney general opinions may be considered as persuasive authority on appellate courts. See Campbell v. Poythress, 216 Ga. App. 834, 835 (456 SE2d 110) (1995).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A2191.
    STOREY v. THE STATE.
    (524 SE2d 304)
   Blackburn, Presiding Judge.

Kendall Storey appeals, following a jury trial, on the grounds that the evidence was insufficient to support his convictions of battery and criminal trespass. Because we find ample evidence to support the convictions, we affirm.

Decided November 1, 1999.

Jerry W. Moncus, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Storey] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewing the evidence, the record shows that, although Johnny’s Garage closed at 6:00 p.m., Storey and two other men went into the shop’s parking lot at midnight on May 2, 1998. Storey climbed into the front seat of a classic 1968 Cougar automobile which was owned by the proprietor, Johnny Mills, who lived next door.

Mills was alerted to Storey’s presence when his guard dog began barking. Mills went on his front porch and yelled at Storey to get out of his car and leave. When Storey did not leave, Mills walked over to his car, yelling for Storey to get out of the car. Storey then got out of the car, knocked Mills to the ground, choked him and held him down with his foot. Storey and the two other men left when Mills’ mechanic and a relative approached the car. The altercation left Mills bruised and bleeding from a cut on his head. Storey’s shoe left a print on Mills’ face which was still visible the next day.

“A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). “A person commits the offense of criminal trespass when he or she knowingly and without authority . . . [r]emains . . . within the vehicle ... of another person after receiving notice from the owner ... to depart.” OCGA § 16-7-21 (b) (3). Here, the evidence is sufficient to authorize the jury’s finding that Storey was guilty of the charges beyond a reasonable doubt. See Jackson, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2233.
    GALVAN v. THE STATE.
    (524 SE2d 297)
   Blackburn, Presiding Judge.

Rogelio Galvan appeals his conviction, following a bench trial, for possession of marijuana, contending that the trial court erred by denying his motion to suppress approximately 61 pounds of marijuana found at his residence. In support of his motion, Galvan argues that the affidavit on which the search warrant was founded failed to establish probable cause. For the reasons set forth below, we affirm.

In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by the Georgia Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Punctuation omitted.) Eaton v. State, 210 Ga. App. 273 (1) (435 SE2d 756) (1993).

In this case, the affidavit of Officer L. L. Smith, which was attached to the search warrant, contains the following information: (1) on February 25, 1997, the Georgia Bureau of Investigation asked the Doraville Police Department for assistance in setting up a controlled delivery of an intercepted package containing 23 pounds of marijuana to Galvan’s residence, where it had been addressed; (2) on March 5, 1997, a confidential informant stated that marijuana was being sold from Galvan’s residence and described a hand-to-hand sale witnessed at that address; (3) on March 7,1997, this confidential informant purchased marijuana from two men at a nearby location, and, immediately after the sale, one of the men went to Galvan’s residence; and (4) independent police investigation showed that the informant’s description of Galvan’s residence was accurate.

We find no error in the issuance of a search warrant based upon this affidavit. Although Galvan claims that there was no evidence that the confidential informant was reliable, the information provided by the informant was corroborated by other sources which, in turn, indicated the veracity of the informant. “Our decisions applying the totality of circumstances analysis have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” (Punctuation omitted.) Stephens, supra at 183. Here, there was independent evidence that a package containing a large amount of marijuana had been mailed to Galvan’s residence, and a participant in a sale of marijuana had some connection with the home. Therefore, the issuance of the warrant was authorized in this case. Id.

Decided November 1, 1999.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

Although Galvan argues that the magistrate ultimately had no proof that marijuana was located in Galvan’s residence,

[b]y no means is probable cause to be equated with proof by even so much as a preponderance of evidence. As stated in Gates, [supra at 2336,] “[p]robable cause does not demand the certainty we associate with formal trials.” The issuing magistrate now need only conclude that there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 2332.

(Citation omitted; emphasis in original.) Stephens, supra at 184.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A99A2333.
    INFINITY INSURANCE COMPANY v. MARTIN.
    (524 SE2d 294)
   McMurray, Presiding Judge.

Appellee-plaintiff Mary Martin brought suit against appellant-defendant Infinity Insurance Company seeking damages and OCGA § 13-6-11 expenses of litigation and attorney fees arising out of alleged fraud in the sale and cancellation of her automobile liability insurance policy. The record reflects that Martin applied for the Infinity insurance policy of which she complains through Ragan Insurance Agency, Inc. (“Ragan”) in Columbus. Martin made application for automobile liability insurance; coverage for the period 9:00 a.m., February 17, 1997, through 12:01 a.m., August 17, 1997. In doing so, she paid $246 and placed her signature under language which authorized Infinity to “order consumer reports or personal or privileged information concerning character, general reputation, personal characteristics, driving record, loss history, and mode of living.” Such language also authorized Infinity to “charge the correct rates” and to cancel the policy for “non-payment of premium based on the correct premium developed.” After receiving Martin’s application, Infinity adjusted her insurance premium upward on two occasions. In the first of these, Infinity charged Martin an additional $84 upon its discovery that she did not have a major credit card and, in the second, another $87 for failure to provide proof of six months prior insurance.

Martin paid the first premium increase not knowing that it included a $6 installment fee in that Infinity had not advised her by declaration or otherwise that this fee was included in the total. Further, neither Infinity’s application for insurance nor its first revised declaration of insurance notified Martin that her payment was to be made not later than a date certain. When the payment was untimely made, Infinity assessed a $5 late fee against Martin. She did not pay the second premium increase for failure to provide the required proof of prior insurance, maintaining that she had not received notice of it. In this regard, however, the evidence establishes that Martin did provide Ragan a declaration page from her prior insurance and that Ragan accepted it without telling her that it was inadequate.

On July 7, 1997, Infinity canceled Martin’s insurance for nonpayment of its second increase of her premium. On August 25, 1997, eight days after her insurance would have expired in the regular course of events, she was ticketed for failing to have proof of insurance, an offense for which she paid a fine of $288.25.

The trial court entered judgment on the jury’s verdict for Martin and against Infinity, awarding her damages of $2,500 for fraud, $72.98 for conversion, and $9,000 for attorney fees and expenses of litigation. In two enumerations of error on appeal, Infinity contends the trial court erred: (1) in denying its motion for directed verdict as to Martin’s claims for fraud and conversion, and (2) in denying its motion for directed verdict upon Martin’s claim for attorney fees and expenses of litigation under OCGA § 13-6-11. Held:

1. The trial court properly denied Infinity’s motion for directed verdict as to Martin’s claims for fraud and conversion.

A trial court should grant a motion for directed verdict “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). When determining whether any conflict in the evidence exists, the trial court “must construe the evidence most favorably to the party opposing the motion for directed verdict.” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987). “The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. (Cit.)” Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838) (1983).

Thurmond v. Saffo, 238 Ga. App. 687 (520 SE2d 43).

Viewed in this light, the evidence at trial showed that Infinity failed to inform Martin that not having a major credit card might warrant an upward adjustment of her insurance premium by the application for insurance she signed, subsequent declarations of insurance issued her, or otherwise. Further, the evidence adduced at trial showed that through Ragan, Infinity in part induced Martin’s application for insurance by accepting her offer of proof of prior insurance, though later finding fault with it in justifying the second increase of her insurance premium. Moreover, there was evidence that Infinity did not advise Martin of the installment fee or the late fee it assessed against her by its application for insurance or first revised declaration of insurance. In this regard, there also was evidence that she would have been entitled to a refund of $72.98 had Infinity canceled her insurance using her insurance premium as first adjusted upon her knowledge rather than as last adjusted purportedly without it.

The evidence in this case supported resolution by a jury of the fraud issue. In this regard, Infinity argues its entitlement to the grant of a directed verdict in that there is no evidence that it made any false statement in its dealings with Martin, and, in any event, she cannot prove damages for having been ticketed for driving without proof of insurance after the policy would have expired by its terms even had it not been earlier canceled. See Jones v. Cartee, 227 Ga. App. 401, 405 (2) (489 SE2d 141) (false representation and damage to the plaintiff constitute elements of fraud in addition to scienter, intention to induce plaintiff to act or refrain from acting, and justifiable reliance by plaintiff). Infinity correctly points out that Martin’s fine is not, and cannot, be an item of damages supporting her fraud claim. The fine was incurred after the insurance policy would have expired in any event and in the absence of Infinity’s promise of renewal. We, nonetheless, are not persuaded that Infinity is here entitled to the grant of directed verdict.

Fraud is not committed by wilful misrepresentation alone but in this regard “is subtle and can be accomplished in an infinite number of ways including signs and tricks and even, in some instances, by silence. [Cits.]” Stanford v. Otto Niederer & Sons, Inc., 178 Ga. App. 56, 57-58 (1) (341 SE2d 892). That Infinity gave Martin no reasonable indication that her failure to have a major credit card might result in an increase of her insurance premium; that it gave her no notice of the installment and late fees assessed against her; and that Ragan, acting for Infinity, accepted the proof of prior insurance which she provided upon its request as sufficient constituted evidence upon which the jury could have found misrepresentation by silence by Infinity as well as damages to Martin incident thereto. At best, Infinity’s silence in writing and in the context of a one-on-one interview was ambiguous as to these matters. “Except in plain and indisputable cases, questions of fraud and whether a plaintiff could have protected [herself] through the exercise of ordinary diligence are ... for a jury. [Cit.]” Lester v. Bird, 200 Ga. App. 335, 338 (1) (408 SE2d 147).

Decided November 1, 1999.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Blair K.

To establish conversion as to the funds not refunded to her, Martin needed to prove that Infinity wrongfully asserted an act of dominion over her personal property inconsistent with her property rights therein. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877). Infinity, however, has abandoned the instant enumeration of error in this respect for failure to make specific reference to the record, argument, or citation of authority. Court of Appeals Rule 27 (c) (2); see Alternative Health Care Systems v. McCown, 237 Ga. App. 355 (1) (514 SE2d 691). As a result, the judgment of the trial court stands as conclusive of Infinity’s liability for conversion in this action. Ga. Building Svcs. v. Perry, 193 Ga. App. 288, 299 (6) (387 SE2d 898); OCGA § 9-11-60 (h). Accordingly, we conclude this claim of error to be without merit. Thurmond v. Saffo, 238 Ga. App. 687, supra.

2. We are likewise not inclined to set aside the jury’s award of attorney fees and litigation costs under OCGA § 13-6-11. G.I.R. Systems v. Lance, 228 Ga. App. 329, 332 (7) (491 SE2d 530) (“A trial court’s award of attorney fees under [OCGA § 13-6-11] is to be affirmed if there is any evidence to support it. A. P S. S., Inc. v. Clary & Assoc., 178 Ga. App. 131 (342 SE2d 375) (1986).”). The award of damages for the intentional tort of conversion alone is sufficient to support Martin’s claim for expenses under the “bad faith” prong of OCGA § 13-6-11. Bibb Distrib. Co. v. Stewart, 238 Ga. App. 650, 657 (9) (519 SE2d 455). Infinity’s liability for conversion is not in issue for the reasons set out above. Accordingly, this claim of error is also without merit.

Judgment affirmed.

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

Cleveland, for appellant.

Kenneth M. Henson, Jr., for appellee.


author: Ruffin, Judge.

text:
    A99A1112.
    ANDERSON v. HOUSER.
    (523 SE2d 342)
   Ruffin, Judge.

Mariam Anderson was admitted to the Southwest Hospital emergency room on February 29,1996, for a suspected drug overdose. On March 1, 1996, she was discharged and transferred to Georgia Regional Hospital. She later sued Southwest Hospital and several physicians, including Dr. John W. Houser, for medical malpractice, alleging that they negligently failed to diagnose an esophageal perforation. Although not specified in her complaint, she also contended that the hospital transferred her to Georgia Regional Hospital when she was not stable. Dr. Houser never met or treated Anderson and was out of town during her hospital stay. However, Anderson contended that Dr. Houser owed her a duty of care because he was the scheduled on-call physician when she was admitted to the emergency room. The trial court granted summary judgment to Houser, holding that he owed Anderson no duty because there was no physician-patient privity. For reasons discussed below, we affirm.

To prevail on a motion for summary judgment,

the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions [,] and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Dr. Houser testified that he was an attending physician on the staff of Southwest Hospital. In February 1996, Dr. Houser was listed as an on-call physician for family practice at the hospital. The hospital bylaws required staff members to provide on-call services for patients who came to the emergency room without a physician. The hospital would distribute a schedule listing the days each doctor was assigned on-call duty. On any given day, one doctor would be the designated on-call doctor for family practice patients. Dr. Houser testified that, if a doctor was unable to be on call when scheduled, it was his responsibility to find someone to take his place. However, Dr. Houser also testified that “the hospital bylaws provides for a redundant system. In other words, if I’m not available, there’s someone else; and if that person is not available, there’s somebody else. But on the schedule, there’s only one name.” Another doctor, Dr. Frank Cook, testified that

there’s a chain of command that is supposed to be followed [when an on-call doctor is unavailable]. There are rules and regs governing according to the medical staff bylaws, that there are certain steps you go through if you can’t find the attending physician. . . . They go to the person’s partner or associate, number one. If there is not or if that’s not available, they go to the chief of the service. If that person is not available, they go to the chief of staff. If that person is not available, they go to the hospital administrator.

Dr. David Blake testified that, if a resident is unable to contact the on-call family practice doctor, there is a family practice attending physician on call at all times to whom he could turn for assistance.

Dr. Houser admitted that he was the scheduled on-call family practice physician from 8:00 a.m. on February 29, 1996, until 8:00 a.m. on March 1, 1996, during which time Anderson was admitted to the emergency room. He also admitted that he was out of town during this period, but claimed that he arranged for Dr. Cook to cover for him. Dr. Cook denied that he agreed to cover for Dr. Houser on February 29, when Anderson was admitted, claiming that his coverage period was not to begin until March 1.

Dr. Cook testified that he did not receive any medical information or give any advice regarding Anderson during her hospital stay. However, Dr. Shaun Brownlee, a resident who treated Anderson at the hospital, testified that he consulted with Dr. Cook regarding Anderson’s treatment after learning that Dr. Houser was out of town. Dr. Brownlee testified that, although Dr. Cook said he was not supposed to start covering for Dr. Houser until the weekend, he nevertheless agreed to let Dr. Brownlee present Anderson’s case to him. According to Dr. Brownlee, Dr. Cook approved his suggested orders and gave him additional orders for treatment. Dr. Brownlee testified that there was no doubt in his mind that Dr. Cook was available throughout the remainder of his shift for consultation regarding Anderson. Dr. Cook, however, testified that he told Dr. Brownlee he was not covering for Dr. Houser and that he refused to provide any input as to Anderson’s diagnosis or treatment. Nurse Sarah Hardy testified that Dr. Cook personally authorized Anderson’s transfer to Georgia Regional Hospital, although Dr. Cook denied doing so. The trial court found that the evidence was conflicting as to whether Dr. Houser had properly arranged for a substitute on-call physician and assumed for summary judgment purposes that Dr. Houser did not make proper arrangements.

1. The sole question on appeal is whether Dr. Houser owed Anderson a duty of care, even though he never met Anderson, was never consulted about her condition, and was not aware of her existence. In considering this issue, we must start from the

well-settled principle of Georgia law that there can be no liability for malpractice in the absence of [a] physician-patient relationship. . . . [Djoctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982). The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.

The parties do not cite, and we are not aware of, any Georgia cases dealing with the precise issue in this case. However, cases in other jurisdictions have taken differing approaches to determining when an on-call doctor may be liable for failing to provide services to a patient he has never met. In Hiser v. Randolph, after a patient with acute diabetes arrived at the emergency room in a semi-comatose condition, the emergency room nurse contacted the on-call physician, Dr. Randolph. Dr. Randolph refused to attend or treat the patient and advised the nurse to call Dr. Arnold, the patient’s regular physician, who had treated her in the emergency room the day before. The nurse subsequently advised Dr. Randolph that Dr. Arnold would not come to the hospital, and Dr. Randolph again refused to attend the patient. The patient died the next day, and her husband later sued Dr. Randolph for malpractice.

In reversing a grant of summary judgment in favor of Dr. Randolph, the Arizona Court of Appeals held that he had a duty to treat the emergency room patient. The court noted that (1) state law required a hospital providing emergency room services to provide those services to everyone in need of them; (2) the hospital’s bylaws stated a purpose that “all patients . . . treated in the Emergency Room receive the best possible care”; (3) the hospital’s rules and regulations stated that “[i]n case of emergency [a] provisional diagnosis shall be stated as soon after admission as possible”; (4) all members of the medical staff were required to sign the bylaws and rules and regulations; and (5) Dr. Randolph was paid $100 per day to be the doctor on call in charge of the emergency room. Although the court recognized the general rule that a doctor can refuse to treat a patient even in emergency situations, it held that

[i]n our opinion, Dr. Randolph, by assenting to these bylaws, and rules and regulations, and accepting payment from the hospital to act as the emergency room doctor “on call,” personally became bound “to insure that all patients . . . treated in the Emergency Room receive the best possible care,” and agreed to insure “in the case of emergency the provisional diagnosis shall be started as soon after admission as possible.” . . . [T]he obviously intended effect of the bylaws and rules and regulations was to obligate the emergency room doctor “on call” to provide emergency treatment to the best of the doctor’s ability to any emergency patient of the hospital. Under these circumstances, the lack of a consensual physician-patient relationship before a duty to treat can arise has been waived by the signatory doctors.

The court in Hiser did not address whether the patient was an intended third-party beneficiary of the contract between the hospital and Dr. Randolph so as to create a doctor-patient relationship. Nor did it hold that there was a consensual doctor-patient relationship between the patient and Dr. Randolph. Rather, it held that by agreeing to the hospital’s bylaws and rules and regulations, Dr. Randolph assumed a duty to treat emergency room patients notwithstanding the lack of a consensual doctor-patient relationship.

The Ohio Court of Appeals took a different approach to this issue in McKinney v. Schlatter. In that case, the patient’s emergency room doctor telephoned an on-call cardiologist and described the patient’s x-ray, electrocardiogram, and other test results. The cardiologist said that he did not believe the patient’s problem was cardiac in nature and suggested that the emergency room doctor repeat the electrocardiogram. After the patient died of an aortic aneurysm, his executor sued the on-call cardiologist and others for malpractice. The Ohio Court of Appeals held that

a physician-patient relationship can exist by implication between an emergency room patient and an on-call physician who is consulted by the patient’s physician but who has never met, spoken with, or consulted the patient when the on-call physician (1) participates in the diagnosis of the patient’s condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff or patient for whose benefit he is on call. Once an on-call physician who has a duty to the hospital, its staff, or patients is contacted for the benefit of an emergency room patient, and a discussion takes place between the patient’s physician and the on-call physician regarding the patient’s symptoms, a possible diagnosis and course of treatment, a physician-patient relationship exists between the patient and the on-call physician.

Applying this three-prong test, the Court of Appeals held that the trial court erred in granting the on-call doctor’s motion for directed verdict.

The Michigan Court of Appeals considered a similar situation in Oja v. Kin. The facts in that case were similar to those in McKinney, except that the on-call physician, when contacted on several occasions by the resident on duty, refused to offer any assistance and suggested that the resident should contact another doctor for assistance. The Court of Appeals expressed approval of McKinney’s recognition that “a physician’s on-call status alone is insufficient to warrant a finding that the physician impliedly consented to a physician-patient relationship.” The court then went on to analyze the issue as follows:

A physician-patient relationship is contractual and requires the consent, express or implied, of both the doctor and the patient. The consent of the patient is generally implied. The question is, [u]nder what circumstances can the doctor’s consent be implied? . . . Merely listening to another physician’s description of a patient’s problem and offering a professional opinion regarding the proper course of treatment is not enough. Under those circumstances, a doctor is not agreeing to enter into a contract with the patient. Instead, she is simply offering informal assistance to a colleague. At the other end of the spectrum, a doctor who is on call and who, on the phone or in person, receives a description of a patient’s condition and then essentially directs the course of that patient’s treatment, has consented to a physician-patient relationship. The difficulty arises in determining where, between these two extremes, a physician-patient relationship (and thus a duty) arises. This inquiry is necessarily conducted case by case, but we do not believe that a physician’s on-call status alone is enough to support an implied consent to a physician-patient relationship. Thus, we conclude that an implied consent to a physician-patient relationship may be found only where a physician has done something, such as participate in the patient’s diagnosis and treatment, that supports the implication that she consented to a physician-patient relationship. We conclude that such participation is necessary for, but by itself does not establish, an implied physician-patient relationship.

The court in Oja held that, because the on-call physician did not provide any care, treatment, or advice regarding the patient’s condition, he did not consent to the creation of a physician-patient relationship. In so holding, the court rejected the contention that the physician’s contract with the hospital created such a relationship:

Plaintiff argues that Dr. Kin’s contractual relationship with the hospital, combined with the hospital by-laws, imposed a duty on Dr. Kin to come to the hospital when he was called, or to arrange for coverage. Dr. Kin may very well have owed such a duty to the hospital. However, a contract between the hospital and Dr. Kin does not necessarily create rights in third-parties such as the decedent.

The court rejected the proposition that the patient was an intended third-party beneficiary of the contract between the hospital and the on-call physician, noting that under Michigan law, “[w]here the contract in question is primarily for the benefit of the parties thereto, the fact that a third person is incidentally benefited does not give that person rights as a third-party beneficiary.”

We believe that the approach taken in Oja is the preferable approach. Georgia law clearly provides that no duty can arise in the absence of a consensual doctor-patient relationship. A consensual relationship is established when “the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.” As Oja recognized, an individual presenting herself to the emergency room may generally be assumed to have consented to treatment by any physician associated with the hospital who offers such treatment. Therefore, the key question in determining the existence of a doctor-patient relationship is whether the physician has knowingly accepted such individual as his patient.

Although a doctor who has agreed to be on-call makes himself available to be consulted regarding a patient’s condition, that fact alone does not indicate that the doctor has agreed to establish a doctor-patient relationship with any patient who presents herself to the hospital for diagnosis and treatment. Indeed, there may be many circumstances where an on-call physician who is consulted about a particular patient does not feel competent to diagnose and treat the patient. Clearly, in those circumstances, the mere fact that the doctor has agreed to be on call for consultation does not establish a consensual doctor-patient relationship.

Although the issue becomes more complicated when the doctor has a contract or agreement with the hospital requiring him to be on call during a certain period, we do not believe this fact necessarily implies the existence of a consensual relationship between the doctor and any patient who presents herself at the hospital. The issue is not whether the doctor has a duty to the hospital, but whether he has a duty to the patient. It is axiomatic that one who is not a party to a contract has no standing to enforce the contract unless she is an intended third-party beneficiary thereof. Clearly, therefore, a patient cannot rely on a contract between a doctor and a hospital to create a consensual relationship between herself and the doctor, unless she is an intended third-party beneficiary of the contract with enforceable rights thereunder.

OCGA § 9-2-20 (b) provides that “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” However,

[i]n order for a third party to have standing to enforce a contract under OCGA § 9-2-20 (b) it must clearly appear from the contract that it was intended for his or her benefit. The mere fact that the third party would benefit from performance of the agreement is not alone sufficient.

In this case, there is no evidence that any agreement between Dr. Houser and the hospital requiring him to provide on-call services was intended for the benefit of the patient as opposed to the hospital. Although a patient admitted to an emergency room may expect that the hospital has made adequate staffing arrangements to provide necessary emergency room services, she does not have any reason to expect that any particular doctor will provide treatment. To the extent that a hospital is required to provide emergency services to patients, the precise manner in which it chooses to meet its staffing needs is an administrative matter for the hospital. In this case, although the hospital required staff members to serve specified periods on call, it also provided a redundant system in the event the scheduled on-call doctor could not be reached. In other words, the system put in place by the hospital allowed emergency room physicians to obtain the necessary consultations whether or not the scheduled on-call doctor was available. The existence of this redundant system shows that the practice of designating a particular doctor to be on call for a particular day was intended for the benefit of the hospital and was not intended to give a patient an enforceable right to be diagnosed or treated by any particular doctor. The fact that the system may not have functioned properly in this particular case does not change the result, since what is important is the intent of the contracting parties.

The potential ramifications of imposing liability upon an on-call doctor under the circumstances in this case are far-reaching. There would be no logical reason to limit such a holding to situations involving on-call doctors. Suppose a neurologist on staff is required by the terms of his agreement with the hospital to provide consultations when requested by another physician, but is late returning from lunch one day. Another doctor seeking a consultation is unable to locate the neurologist and consults a different physician who incorrectly diagnoses the patient’s condition. Can the patient sue the neurologist for malpractice, claiming that she had a consensual doctor-patient relationship with him by virtue of his employment agreement with the hospital? Although such a result would appear absurd, there is no principled way to distinguish it from the on-call scenario.

Because there is no evidence that Anderson was an intended third-party beneficiary of any on-call agreement between Dr. Houser and the hospital, the trial court correctly concluded that the on-call agreement did not give rise to a consensual doctor-patient relationship between Dr. Houser and Anderson.

2. Dr. David Blake, a third-year resident at the hospital, testified that on occasion Dr. Houser would ask him to visit his patients at the hospital when Dr. Blake was off duty and Dr. Houser was unavailable. Dr. Houser would pay Dr. Blake a fee for visiting his patients. Dr. Blake testified that, because he was not an attending physician and could not admit or discharge patients, he could not be the sole physician responsible for covering for Dr. Houser. Rather, he would visit Dr. Houser’s patients to assist whoever was covering for Dr. Houser. He testified that

I would be there as sort of a conduit to make it easier on his attending colleague who would be providing the absolute coverage for the patient in that I would come in and do the legwork. I would see the patient, write notes. If I had questions, I would then put out a call to whomever he told me would be covering for him on the attending level.

Decided October 6, 1999

Reconsideration denied November 2, 1999

Williams & Henry, Philip C. Henry, Robert L. Callahan III, Edward C. Henderson, Jr., for appellant.

Sistrunk & Associates, Hezekiah Sistrunk, Jr., Michael S. Bailey, for appellee.

Anderson contends that, if Dr. Blake covered for Dr. Houser in connection with her treatment, then he must be considered Dx. Houser’s agent or employee, rendering Dr. Houser liable for his actions. However, there is no evidence that Dr. Blake in fact ever treated Anderson. Dr. Blake testified that he did not recall treating Anderson, and Anderson’s hospital records do not indicate that he was involved in any way with her treatment. The only evidence of any involvement by Dr. Blake with Anderson is that he refused to sign her discharge papers when summoned by another resident who believed he was covering for Dr. Houser. Because there is no evidence that Dr. Blake took part in Anderson’s care or treatment, Anderson has not shown how his relationship with Dr. Houser has any relevance to the issue of Dr. Houser’s duty to Anderson.

Judgment affirmed.

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

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

       (Citations and punctuation omitted.) Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319) (1988)

       126 Ariz. 608 (617 P2d 774) (Ariz. App. 1980).

       Id. at 611.

       Id. at 610.

       Id. at 611-612.

       Id.

       118 Ohio App.3d 328 (692 NE2d 1045) (1997).

       Id. at 336-337.

       Id. at 337-338.

       229 Mich. App. 184 (581 NW2d 739) (1998).

       Id. at 190.

       (Citations and footnotes omitted.) Id. at 190-191.

       Id. at 192.

       Id.

       Id. at 193.

       See Bradley Center, supra at 201.

       (Citation and punctuation omitted.) Peace, supra.

       See OCGA § 9-2-20 (b); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (1) (d) (411 SE2d 75) (1991).

       (Citation and punctuation omitted.) Id.

       See Oja, supra. Although Dr. Houser admitted that the hospital bylaws required doctors to perform on-call services, the bylaws themselves are not in the record on appeal.

       Anderson’s reliance on Henry v. Barfield, 186 Ga. App. 423 (367 SE2d 289) (1988) is misplaced. In that case, we held that a doctor who had an employment duty to treat an emergency room patient did not qualify as a “volunteer” so as to be entitled to immunity under the Good Samaritan statute, OCGA § 51-1-29. We noted that “Good Samaritan statutes are directed at persons, including physicians, who by chance and on an irregular basis come upon or are called upon to render emergency care.” (Emphasis in original.) Id. at 424 (1). That case did not deal with the issue of whether an employment duty alone can create a consensual doctor-patient relationship in the absence of any contact between the doctor and the patient. See also Clayton v. Kelly, 183 Ga. App. 45 (357 SE2d 865) (1987).

       We note that, in accordance with hospital procedure, Anderson was admitted to the hospital under Dr. Houser’s name because he was listed as the on-call physician at the time she was admitted. However, Anderson does not argue in her brief that this affects the analysis of whether Dr. Houser in fact voluntarily accepted Anderson as his patient, but argues simply that his employment duty to provide on-call services obligated him either to attend to any patient who came to the emergency room without a physician or to arrange for a qualified substitute. To the extent that this issue may have been implicitly suggested in Anderson’s supplemental brief, we note that “[i]ssues not argued and supported with citation of authority in the original brief cannot be ‘resurrected from abandonment’ by a supplemental brief.” Jewell v. State, 200 Ga. App. 203, 205 (3) (407 SE2d 763) (1991). See also Williams v. State, 168 Ga. App. 614, 615 (4) (309 SE2d 856) (1983); In re Harvey, 219 Ga. App. 76, 79 (464 SE2d 34) (1995). Because this issue was not properly asserted by Anderson as a basis for reversal, and thus Dr. Houser did not have an opportunity to present counterargument in his response brief, we limit our consideration to those issues properly raised in Anderson’s original brief.

       This resident, Dr. James Everett, testified that after Dr. Blake refused to sign the discharge papers, a nurse telephoned Dr. Cook, who authorized Anderson’s discharge and transfer. The nurse, Sarah Hardy, testified that Dr. Cook authorized Anderson’s transfer over the telephone.


author: Eldridge, Judge. Smith, Judge,

text:
    A99A1572.
    HANCOCK v. BRYAN COUNTY BOARD OF EDUCATION et al.
    (522 SE2d 661)
   Eldridge, Judge.

Because of abusive behavior, plaintiff-appellant Shirley Hancock’s grandson was suspended from riding the school bus. The next morning, Hancock boarded the school bus on one of its regularly scheduled stops and attempted to talk to the school bus driver, defendant Emmanuel Sarbee, about the suspension. Sarbee asked Hancock to leave the bus, since school policy precluded the discussion of discipline problems while the bus was en route and also prohibited parents and other adults from boarding the bus. Hancock fell as she disembarked. Seeking recovery for a back injury she allegedly sustained during the fall, Hancock filed a negligence action against Sarbee, the Bryan County Board of Education, and the defendants’ insurance carrier. A Bryan County jury found for defendants. Hancock appeals the verdict. Finding no error, we affirm.

1. Hancock first contends that the trial court violated the “best evidence” rule by permitting defense witness Dr. Bobby Rahn to testify that Sarbee’s actions were in compliance with the Rules & Policies of the Bryan County Board of Education without first requiring that a copy of said Rules be placed into evidence. However, Hancock did not raise a “best evidence” objection to Rahn’s testimony regarding the Rules & Policies. Such specific objection must be made at trial, or it is waived. Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). Further, prior to Rahn’s testimony, the substance of the relevant Rules & Policies was put before the jury — without objection — through the testimony of another defense witness. A copy of the Rules themselves would be merely cumulative of such testimony. See, e.g., Adams v. State, 217 Ga. App. 706, 707 (1) (459 SE2d 182) (1995).

2. In enumerations of error 2 and 3, Hancock contends that the trial court erred in charging the jury (a) that, upon her entry onto the school bus, Hancock was either a licensee or a trespasser; and (b) regarding the standard of care owed to each, i.e., the duty not to wilfully or wantonly injure. However, Hancock’s counsel specifically requested that the trial court charge the jury on the law regarding trespassers and the “wilful and wanton” standard of care. Also, during a colloquy with the trial court, Hancock’s counsel specifically suggested that Hancock’s status might be that of a licensee. “A defendant cannot complain of a verdict which was brought about by a charge which he had requested. One cannot complain of a . . . charge that is aided by his own trial tactics, procedures, and conduct.” (Citations and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).

Further, Hancock’s alternative contention that, upon boarding the school bus, she was a “passenger” on a “common carrier” is incorrect as a matter of law. A school bus is not a motor common carrier. OCGA § 46-1-1 (9) (C) (i); see also Division 5, infra. Hancock’s unauthorized boarding of the school bus did not make her a “passenger” thereon. White v. Boyd, 58 Ga. App. 219 (198 SE 81) (1938); see also OCGA § 46-1-1 (10). Accordingly, Hancock’s enumerated allegations are without merit.

3. We find no error in the trial court’s denial of Hancock’s belated oral request to charge that a person intends the natural and probable consequences of his or her acts. “It is never error to deny an oral request to charge.” (Citations and punctuation omitted.) Shilliday v. Dunaway, 220 Ga. App. 406, 409 (5) (469 SE2d 485) (1996).

4. In her fifth enumeration of error, Hancock contends that the trial court erred in charging the jury on the legal principle of “assumption of the risk.” However, following the trial court’s charge, there was no objection to charging the jury on assumption of the risk. Hancock’s only objection with regard thereto was in the trial court’s failure to define two legal terms used in the charge. “An objection to a charge in a civil case must be made after the court instructs the jury and before the jury returns a verdict; an objection made only at a charge conference is insufficient to preserve an issue for appeal.” (Citation and emphasis omitted.) Bruno v. Evans, 200 Ga. App. 437, 441 (4) (408 SE2d 458) (1991).

Moreover, we reject Hancock’s contention that, even in the absence of an objection, the trial court’s charge on assumption of the risk requires review pursuant to OCGA § 5-5-24 (c). OCGA § 5-5-24 (c) must be strictly construed “to prevent emasculation of subsection (a),” which requires specific objection to the charge. (Citations omitted.) Moore v. Sinclair, 196 Ga. App. 667, 672 (6) (396 SE2d 557) (1990). The instances in which the subsection applies are extremely rare and are applicable only to those cases in which an erroneous charge or failure to charge results in a “gross injustice.” Gray v. Elias, 236 Ga. App. 799, 802 (513 SE2d 539) (1999). Here, the defense presented evidence that Hancock fell because she attempted to exit the bus by “stepp [ing] backwards, blindly, not seeing where [her] foot was gonna land” and that she knowingly assumed the risk of falling by engaging in such dangerous action. This issue presented a question of fact for the jury to decide and was supported by the evidence. Wade v. Mitchell, 206 Ga. App. 265, 270 (424 SE2d 810) (1992). Accordingly, Hancock has failed to demonstrate that the court’s charge represented a “gross injustice” upon the trial of this case so as to warrant review pursuant to OCGA § 5-5-24 (c). Gray v. Elias, supra at 802.

5. The evidence was undisputed that the school bus in the instant case was engaged solely in transporting schoolchildren and teachers to and from public schools. Thus, contrary to Hancock’s assertion, the bus was not a “motor common carrier” as a matter of law. OCGA § 46-1-1 (9) (C) (i); see also Division 2. The trial court did not err in so finding. Hancock’s reliance upon case law which precedes the 1993 enactment of the above-referenced statute is misplaced. See Ga. L. 1993, p. 579, § l.

6. At Hancock’s request, the trial court charged the jury on the law regarding a licensee, a trespasser, and the duty of care owed to each. As to the duty of care owed to a licensee, the trial court charged the jury that, “A licensee enters on the property at her own risk, and the owner owes the licensee no duty as to the conditions of the property, except that the owner should not knowingly let the licensee run into a hidden peril or wilfully or wantonly cause her injury.”

Hancock contends that there was no evidence of a “hidden peril” and that portion of the charge is completely inapplicable. However, “[a]n inapplicable jury instruction is not grounds for reversal where it does not appear that the inapplicable part was calculated to mislead the jury, erroneously affected the verdict or was prejudicial to the rights of the complaining party.” (Citations and punctuation omitted.) Roberts v. Stennett, 201 Ga. App. 155, 156 (2) (410 SE2d 356) (1991). The charge as given was a correct statement of the law regarding the duty owed to a licensee. See Queen v. City of Douglasville, 232 Ga. App. 68, 71 (500 SE2d 918) (1998), rev’d on other grounds, 270 Ga. 770 (514 SE2d 195) (1999). Hancock has failed to state how she was prejudiced by the instruction. The jury, if they considered the “hidden peril” language at all, obviously rejected it, since they found for the defendants. “Taken as a whole, this charge could not have confused the jury.” (Citation omitted.) White v. State, 208 Ga. App. 885, 890-891 (432 SE2d 562) (1993).

7. Next, Hancock claims error in the trial court’s refusal to give her request to charge on the “last clear chance” doctrine. Hancock contends that such error was preserved by virtue of her blanket objection to the trial court’s failure “to give each and every one of her written requests.”

To be reviewable the objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must point out distinctly the portion of the charge challenged. The grounds of error urged must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to what the specific ground of challenge is. The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error. General exceptions to a charge given or general exceptions to refusals to charge fail to meet the requirements of OCGA § 5-5-24.

(Citation and punctuation omitted.) T & M Investments v. Jackson, 206 Ga. App. 218, 222-223 (8) (425 SE2d 300) (1992). Accordingly, the instant claim of error is waived.

8. Hancock claims the trial court’s charge on proximate cause was deficient because the charge did not include a definition of proximate cause. However, Hancock did not submit a specific charge on proximate cause, and she has not alleged any definitional language that should have been submitted to the jury. See Branch v. Maxwell, 203 Ga. App. 553, 555-556 (5) (b) (417 SE2d 176) (1992). Moreover, the instant case did not involve multiple causes-in-fact of an injury; it was alleged only that defendants’ conduct caused Hancock to fall off the bus, and the only question was whether such fall was the cause-in-fact of Hancock’s injury. See Gray v. Elias, supra at 802-803. Accordingly, we find the trial court’s charge on proximate cause sufficient in the absence of a proper request for a specific proximate cause charge. Id.

Judgment affirmed.

Johnson, C. J, Pope, P. J., Blackburn, P. J, and Miller, J, concur. Smith and Barnes, JJ, dissent.

Smith, Judge,

dissenting.

This is a case in which a jury instruction on proximate cause was strongly indicated, if not demanded, by the evidence. The appellant submitted a specific written request to charge on proximate cause. The trial court responded to appellant’s clear and specific inquiry on this point during a bench conference and confirmed that no charge on proximate cause would be given. Appellant excepted to the failure to define proximate cause in the jury instructions. We cannot now construe some other portion of the charge as sufficient to provide an implied or inferential definition of proximate cause, when the giving of an explicit definition was expressly requested and expressly refused.

For this reason, I respectfully dissent.

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

On Motion for Reconsideration.

Hancock filed a motion for reconsideration which we have denied. But she raises a specific point with regard to Division 8 of our opinion. Having initially failed to direct our attention to a timely filed request to charge on the definition of “proximate cause,” or any discussion on the submission of such charge, Hancock now cites to pages 100, 241, 244, and 248 of the record in this case and contends that this Court “overlooked some portions of the record” which Hancock now “invite [s]” us to “peruse.” Such invitation would have been so much more valuable in an appellant’s enumerations of error and supporting brief. And we sincerely invite appellant’s perusal of Court of Appeals Rule 27 (b) (1) requiring appellant to cite to any “parts of the record or transcript deemed material.” Id. “We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.” (Punctuation omitted.) Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997). However, in spite of Hancock’s violation of our Rules of Court, we will exercise our discretion to review Hancock’s claim of error in order to address an issue of repeated concern.

Hancock claims the trial court’s charge on proximate cause was deficient because the charge did not include the following legal definition of proximate cause submitted as plaintiff’s Request to Charge No. 4:

Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. Proximate cause is that which is nearest in order of responsible causes, as distinguished from remote, that which stands last in causation, not necessarily in time or place, but in causal relation. It is sometimes called the dominant cause.

In support of this contention, Hancock cites both Taft v. Taft, 209 Ga. App. 499 (433 SE2d 667) (1993) and Cline v. Kehs, 146 Ga. App. 350 (246 SE2d 329) (1978).

However, a review of both Taft and Cline shows that the reversible error in each was the trial court’s failure to charge the law on proximate cause at all. See Taft v. Taft, supra at 500-501 (“the trial court failed to define proximate cause or to instruct adequately the jury as to the meaning of this concept”) (emphasis supplied); Cline v. Kehs, supra at 352 (6) (“[t]he trial court did not charge on the issue of proximate cause”). The failure to charge the precise, legal definition of proximate cause does not automatically constitute reversal. Gray v. Elias, 236 Ga. App. 799, 803 (513 SE2d 539) (1999). Instead, the trial court must charge the jury “as to the legal meaning of proximate cause and its application to the facts.” (Emphasis supplied.) Cline v. Kehs, supra.

In this case, Hancock contended that her back injury resulted from her fall off the school bus; the defendant put forward evidence that Hancock had a chronic back condition before she fell off the school bus. In that regard, the trial court charged the jury on the meaning of proximate cause as it related to the facts of the case:

[P]laintiff contends that she is entitled to recover damages for various medical expenses connected with her injury. Plaintiff says that [by] reason of the injuries received as alleged, it was necessary for her to have treatment and that she was put to expense in this regards [sic]. I instruct you that if you believe that Plaintiff was injured, as alleged, and is entitled to recover, these are legitimate items for which damages may be awarded. In this event, you would award Plaintiff for these services, such sum as the evidence shows was reasonable and made reasonably necessary by such injury. ... I instruct you, members of the jury, that no plaintiff may recover for injuries or disabilities which are not connected with the act or omissions of the defendant in this case. There can be no recover for a — no recovery for a particular plaintiff for any injury or disability which was not proximately caused by the incident in question. I instruct you that the burden is upon the plaintiff to establish by a preponderance of the evidence which of her injuries resulted from the negligence, if any, of the defendant and which of her damages and injuries or ailments were caused by some other source other than the defendant. If you find that the plaintiff is entitled to recover, under the instructions I have given you, she will be entitled to recover damages only directly resulting from the — from the acts of this defendant and would not be entitled to recover damages for injuries or ailments the plaintiff experienced from any mental or physical condition existing prior to such actions of this defendant.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987). See also Delaney v. Lakeside Villa, 210 Ga. App. 430 (3) (440 SE2d 668) (1993). Here, the trial judge instructed the jury on Hancock’s burden of proof and the necessity that Hancock’s injury be the direct result of the defendants’ negligence. The legal definition of “proximate cause” submitted by Hancock would have been elaborative — and it would have been better had the trial court given this or some other definition of proximate cause — but the court’s charge contained the legal meaning of proximate cause and its application to the facts. Cline v. Kehs, supra. Moreover, Hancock fails to offer any argument whatsoever as to how the trial court’s omission to give her definitional charge on proximate cause might have misled or confused a jury of ordinary intelligence. Clark v. Stafford, 239 Ga. App. 69, 74 (3) (522 SE2d 6) (1999). As such, we cannot say the charge as given, considered as a whole, was error.

Decided September 14, 1999

Reconsideration denied November 2, 1999

Ray C. Smith, for appellant.

Barrow & Ballew, Joseph H. Barrow, Edenfield & Cox, Gerald M. Edenfield, for appellees.

       Such oral request was made after the close of evidence and following the defendants’ final argument. See OCGA § 5-5-24.

       See, e.g., Burke County Bd. of Ed. v. Raley, 104 Ga. App. 717 (123 SE2d 272) (1961).

       In fact, the “hidden peril” language inures to a plaintiff’s benefit, since it provides another basis for a defendant’s liability to a licensee. Further, although not argued by Hancock, what lay behind Hancock when she stepped off the bus could have been considered by the jury to be a “hidden peril.”


text:
    A99A1970, A99A1971.
    GENERAL ELECTRIC CAPITAL COMPUTER SERVICES v. GWINNETT COUNTY BOARD OF TAX ASSESSORS (two cases).
    (523 SE2d 651)
   McMurray, Presiding Judge.

These are the third and fourth cases between appellant-plaintiff General Electric Capital Computer Services (“GECC”) and the Gwinnett County Board of Tax Assessors. The history of this matter dates back to the early 1990s. GECC desired to establish a warehouse facility to store testing and measuring equipment which it held for sale, lease and rental to customers in and out of Georgia. Assured that this sort of inventory would be eligible for freeport exemption from ad valorem taxation under OCGA § 48-5-48.2, GECC located its warehouse facility in Gwinnett County and, as promised, was granted a freeport exemption for tax year 1992. In tax year 1993, however, the Board of Tax Assessors denied GECC’s application for freeport exemption. On appeal, the superior court reversed by final order and judgment entered June 7, 1994 (“1994 order”).

After further appeal to this Court in 1995, this Court affirmed the 1994 order without opinion. A year later, the parties entered into a consent order to resolve disputes which arose after the 1994 order was entered. Therein the Board of Tax Assessors agreed to refund to GECC ad valorem taxes paid in 1993 to the extent these were determined subject to freeport exemption from taxation and granted GECC’s 1994 and 1995 applications for the freeport exemption. GECC, in turn, waived its right to seek additional sums, and all counterclaims were dismissed with prejudice.

The underlying actions arise out of the Board of Tax Assessors’ denial of GECC’s applications for freeport exemption in tax years 1996 and 1997 upon the finding that GECC’s Gwinnett County warehouse inventory did not qualify for the exemption for failure to meet the requirements of OCGA § 48-5-48.2. In companion appeals, GECC challenges the superior court’s orders denying its motions for summary judgment and granting the Board of Tax Assessors’ cross-motions for summary judgment as to its applications for freeport exemption in tax years 1996 and 1997, Case Nos. A99A1970 and A99A1971, respectively. Because these cases raise identical issues of law based on the same facts, we hereby consolidate them for disposition in a single appellate decision. Held,-.

1. In five enumerations of error, GECC contends that the superior court erred in denying its motion for summary judgment variously arguing that the doctrine of collateral estoppel precluded the relitigation of the question of the eligibility of its Gwinnett County warehouse inventory for the freeport exemption from ad valorem taxation. We agree.

Upon reviewing the grant or denial of a motion for summary judgment

this Court conducts a de novo review of the law and the evidence. Further, the standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. (Additionally,) on motions for summary judgment, the court cannot resolve the facts or reconcile the issues. (Citations omitted.) Adams v. Sears, Roebuck & Co., 227 Ga. App. 695, 696-697 (1) (490 SE2d 150) (1997).

Ultima Real Estate Investments v. Saddler, 237 Ga. App. 635-636 (516 SE2d 360).

Inasmuch as the Board of Tax Assessors was a proper party under OCGA § 48-5-311 (e) and because the 1994 order became a final judgment on the entry thereof, OCGA § 5-6-34, the basis of GECC’s freeport exemption under OCGA § 48-5-48.2 was res judicata as to its 1993 claim for exemption from taxation therein litigated. Fulton County Tax Commr. v. Gen. Motors Corp., 234 Ga. App. 459, 464 (1) (507 SE2d 772). Further, in the absence of significant factual change, collateral estoppel on the issue of GECC’s eligibility for the freeport exemption was made applicable to the Board of Tax Assessors on all future applications for tax-exempt status. Id.

“Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered. Therefore, collateral estoppel does not necessarily bar an action merely because the judgment in the prior action was on the merits. Before collateral estoppel will bar consideration of an issue, the issue must actually have been decided.” Waldroup v. Greene County Hosp. Auth., [265 Ga. 864, 866-867 (463 SE2d 5)].

Id. at 465. That the 1994 order constituted a final order on the merits between the parties is not disputed. In ruling upon both claims for tax exemption below, the trial court found that the facts have not changed since the 1994 order was entered, and there is no claim to the contrary. Under these circumstances, collateral estoppel as to the freeport exemption issue is applicable to the years 1996 and 1997 herein disputed and, upon annual application, to the years thereafter. Id. at 464. Inasmuch as the Board of Tax Assessors’ arguments to the contrary regarding record keeping, final destination, the status of the goods as stock-in-trade, and the limitation applicable for seeking exemption, challenge the freeport exemption issue decided or necessarily decided by the 1994 order, we conclude these arguments are without merit.

Neither are these appeals foreclosed procedurally for GECC’s failure to submit duly certified copies of the record from the case on which it seeks to rely. The Supreme Court of Georgia, however, has limited this requirement to the defense of res judicata, Boozer v. Higdon, 252 Ga. 276, 277 (1) (313 SE2d 100), and the superior court adequately approved the 1994 order by its findings of fact in the orders appealed from herein. Id. at 278; Lil Champ Food Stores v. Dept. of Transp., 230 Ga. App. 715, 719 (5) (498 SE2d 94) (“An appellate court will not disturb fact findings of the trial court if there is any evidence to support them. [Cit.]”).

Moreover, we conclude that the superior court’s grant of summary judgment to the Board of Tax Assessors upon this Court’s decision in Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, 230 Ga. App. 790 (498 SE2d 297), constituted an impermissible relitigation of GECC’s eligibility for freeport exemption, the issue the Board of Tax Assessors was estopped to deny by the 1994 order. Fulton County Tax Commr. v. Gen. Motors Corp., 234 Ga. App. at 464-465 (1), supra. While we denied the taxpayer a freeport exemption in Apollo finding its inventory ineligible for exemption as “stock-in-trade” under OCGA § 48-5-48.2 (a) (4), Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, 230 Ga. App. at 793, supra, the 1994 order ruled to the contrary as to at least a portion of GECC’s inventory. Pertinently, the 1994 order ruled that the “portion of [GECC’s] inventory which is in its possession and held for sale or lease on the assessment date, qualifies for a [flreeport exemption from the ad valorem tax under OCGA § 48-5-48.2.” The evidence is that no change as to the relevant inventory occurred thereafter. Accordingly, we conclude that the superior court erred as a matter of law in granting summary judgment to the Board of Tax Assessors and denying summary judgment to GECC. Ultima Real Estate Investments v. Saddler, 237 Ga. App. at 636, supra.

Decided October 19, 1999

Reconsideration denied November 2, 1999

Holland & Knight, Keith J. Reisman, Ragsdale, Beals, Hooper & Seigler, David K. Beals, Lisa F. Stuckey, for appellant.

Because the 1994 order held that only a “portion” of GECC’s inventory was eligible for the freeport exemption and the parties disagree as to GECC’s entitlement to exemption, we must remand these cases for consideration of the sufficiency of GECC’s showings in support of the instant applications for grant of freeport exemption from ad valorem taxation. OCGA § 48-5-311 (g) (3), (4); Fulton County Tax Commr. v. Gen. Motors Corp., 234 Ga. App. at 461 (1), supra (“ *(I)t is initially the county board of tax assessors and, in the event of continued disagreement, the (superior court) who must consider the taxpayer’s showing and make appropriate (grant of freeport exemption if all conditions are satisfied).’ East West Express v. Collins, [264 Ga. 774, 775-776 (449 SE2d 599)].).”

2. In Case No. A99A1970 GECC contends that the superior court erred in failing to grant it attorney fees under OCGA §§ 9-15-14 and 13-6-11. In light of our disposition in Division 1, we further direct that the superior court reconsider on remand GECC’s request for attorney fees.

3. The remaining contentions have been considered and are deemed moot by our holdings in Division 1.

Judgments reversed and cases remanded.

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

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Karen G. Thomas, for appellee.

       GECC requested attorney fees in Case No. A99A1970 by supplemental brief in support of its motion for summary judgment. The superior court impliedly denied this request in denying the motion for summary judgment without addressing the same.


author: Phipps, Judge.

text:
    A99A0963.
    ASKARI et al. v. DOLAT.
    (524 SE2d 310)
   Phipps, Judge.

Joyce Dolat sued Kwame Askari in the Superior Court of Hampden County, Massachusetts, to recover damages arising out of Askari’s negligent operation of a motor vehicle in that state. Dolat also sued Nevorn Askari, the owner of the vehicle. The Askaris, both Georgia residents, failed to appear in Massachusetts, and the court there entered a default judgment for $160,293.45. Dolat then sued them in Walton County, Georgia, to domesticate the Massachusetts judgment.

In Georgia, Dolat prevailed in her motion for summary judgment, and the Askaris appeal, claiming that the Massachusetts court lacked personal jurisdiction. We find that Nevorn Askari was not properly served under Massachusetts law because Dolat never claimed that Nevorn Askari operated a vehicle in Massachusetts, either in person or through an agent, and the grant of summary judgment against her must be reversed. Kwame Askari, however, was properly served, and the grant of summary judgment against him is affirmed.

To prevail on her motion for summary judgment, Dolat must show that there is no genuine issue as to any material fact and that she is entitled to judgment as a matter of law.

1. The Askaris argue that the Massachusetts court did not have personal jurisdiction. Although normally not subject to collateral attack, a foreign judgment may be challenged for lack of personal or subject matter jurisdiction. Dolat claims that the Massachusetts court should be granted “full faith and credit” not only on the merits of the suit, but also on questions of jurisdiction, citing Van Buskirk v. Great American Bank and Crosby v. Wenzoski. In Crosby, however, the defendant specially appeared before the foreign court to contest jurisdiction, and in Van Buskirk, the defendant appeared in the foreign court through counsel and was deemed to have waived personal jurisdiction. Here, the Askaris made no appearance before the Massachusetts court, and there is no presumption that personal jurisdiction exists. “[T]he burden is on the party seeking to domesticate the judgment to negate the defense of lack of jurisdiction. [Cit.]”

2. The Askaris contend that the Georgia trial court had no Massachusetts law before it that would allow it to determine whether service was properly made thereunder. OCGA § 24-1-4 allows judicial recognition of foreign law if it is “published by authority.” Notice of intent to rely on foreign law is required before a party can establish foreign law or place a duty on the trial court to recognize foreign law as published by authority. Notice, however, can arise from the nature of the litigation.

No issue of foreign law pertaining to sufficiency of long arm process service will arise during the course of litigation, unless the defendant timely raises such issue as prescribed by law. Thus, defendant will always have actual knowledge when an issue of foreign law, pertaining to adequacy of service of long arm process, will be litigated and will therefore have a reasonable opportunity to prepare for such litigation.

The trial court was justified in looking to Massachusetts law to determine the adequacy of service of process in the Massachusetts action.

3. Massachusetts law provides that when a nonresident operates a motor vehicle in the state it is equivalent to the appointment of the state registrar as the nonresident’s attorney for service of process. Service may be effected by notice on the registrar and by “forthwith” sending a copy of the process by registered mail, return receipt requested, to the defendant at his address of record in the office which issued his driver’s license. The plaintiff’s affidavit of compliance, and the defendant’s return receipt, if received by the plaintiff, must be filed before the return date of the process. Attached to Dolat’s complaint are two “affidavits of compliance” signed by her attorney, attesting to compliance with the notice provisions of the Massachusetts law by leaving a copy of the process and fee with the registrar and “forthwith mailing a copy of the process by registered mail return receipt requested” to Nevorn Askari and Kwame Askari.

The trial court cited Hess v. Pawloski as authority for upholding Dolat’s service under Massachusetts law. But the law considered by Hess required actual notice to the defendant, and the Askaris contend that actual notice cannot be shown by Dolat. The amended Massachusetts law under which the Askaris were served does not, however, require actual notice to the defendant. We have honored similar “long arm” statutes that did not require actual notice so long as it was “reasonably probable” that the notice of service would be communicated to the defendant. We find that the Massachusetts law meets this standard. Dolat has shown careful compliance with Massachusetts law. The Askaris claim that they did not sign registered mail return receipts, but such a signature is not required under the terms of the Massachusetts law.

4. The Massachusetts nonresident motorist statute applies only to those who operate vehicles in Massachusetts in person or by agent and is therefore inapplicable to a mere owner of a vehicle. Dolat’s complaint states that Nevorn Askari was the owner of the vehicle, not the operator. Because the Massachusetts law never applied to her, Nevorn Askari could not be served under its provisions and was never subject to the jurisdiction of the Massachusetts court. Thus we reverse the trial court’s grant of Dolat’s motion for summary judgment against Nevorn Askari. But we affirm the trial court’s grant of Dolat’s motion for summary judgment against Kwame Askari because he operated the car in Massachusetts.

5. The Askaris claim the trial court erred in ruling that the copy of the Massachusetts judgment that Dolat sought to domesticate was properly authenticated.

OCGA § 24-7-24 (b) provides that a record of a judicial proceeding in another state may be admitted in a court of this state “when certified under the hand and seal, if any, of the judge, clerk or other official of such court.” The copy of the judgment submitted by Dolat is sealed with the court seal, and to the right of the seal is written “A true copy.” Below and to the right of the seal is written “Attest,” and the signature of the Deputy Assistant Clerk is written below that. The Askaris argue that the attestation here does not amount to a certification. One of the definitions of “attest” is to certify to the verity of a copy of a public document. The clerk thus attested that the document is a true copy of the court’s judgment.

Decided November 2, 1999.

Michael D. Hill, for appellants.

Bryant, Davis & Cowden, Jay G. Davis, Howe & Associates, William L. Henderson, for appellee.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Eldridge, J., concur.

       OCGA § 9-11-56 (c).

        Economou v. Economou, 196 Ga. App. 196 (1) (395 SE2d 830) (1990).

       175 Ga. App. 101, 102 (332 SE2d 394) (1985).

       164 Ga. App. 266, 270-272 (296 SE2d 162) (1982).

        Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837 (449 SE2d 347) (1994).

        Samay v. Som, 213 Ga. App. 812 (2) (446 SE2d 230) (1994).

       (Emphasis in original.) Id. at 815 (2) (c).

        P.G.L. & C.C. Employees Credit Union v. Kimball, 221 Ga. App. 108, 109 (470 SE2d 501) (1996) (by the very nature of an action for domestication of a foreign judgment, all parties and the court have notice that foreign law will be relied upon).

       MGLA c. 90 § 3A.

       MGLA c. 90 § 3C.

       Id.

       274 U. S. 352 (47 SC 632, 71 LE 1091) (1927).

       Id. at 356.

       MGLA c. 90 § 3C; Kenney & Ferris, Massachusetts Practice, § 26.3.

        Dunn v. Royal Bros. Co., 111 Ga. App. 322 (141 SE2d 546) (1965); see, e.g., Wuchter v. Pizzutti, 276 U. S. 13 (48 SC 259, 72 LE 446) (1928).

       See Gifford v. Spehr, 358 Mass. 658 (266 NE2d 657, 661 (2)) (1971) (allowing service on a nonresident defendant is a privilege which must be carefully exercised); but compare Hardy v. Green, 277 FSupp. 958 (1967) (technical violations of the statutory procedure are not, under Massachusetts law, fatal).

       MGLA c. 90 § 3A.

        Segal v. Yates, 356 Mass. 449 (253 NE2d 841) (1969); Gately v. U-Haul Co., 350 Mass. 483 (215 NE2d 743) (1966).

        Black’s Law Dictionary (6th ed.).


text:
    A99A1012.
    JENKINS v. GENERAL MOTORS CORPORATION.
    (524 SE2d 324)
   Phipps, Judge.

Lynn Jenkins purchased, through a lease financing arrangement, a new Chevrolet C-3500 pickup truck for business use. Thirteen months later, while towing a loaded trailer, the truck’s brakes failed, causing it to collide with an automobile. Jenkins sued General Motors Corporation, the manufacturer of the truck, to recover property damages for negligence, strict tort liability and breach of warranty. The trial court granted summary judgment to General Motors on all of Jenkins’s claims except breach of written warranty. We find Jenkins has failed to present sufficient evidence to create a triable issue of fact on any of the claims for which summary judgment was granted and affirm the order of the trial court.

If the pleadings, depositions, answers to interrogatories and admissions, and affidavits establish a genuine issue of material fact, then General Motors cannot prevail in its motion for summary judgment. But if General Motors shows that there is no evidence sufficient to create a jury issue on any essential element of a claim, then General Motors is entitled to summary judgment on that claim.

1. Jenkins claims that the truck was not merchantable and that General Motors is strictly liable in tort under OCGA § 51-1-11 (b) (1). To recover under this theory, Jenkins must show a defect existed in the product at the time it was sold to him or otherwise came under his control. Jenkins argues that the brake failure is itself evidence of an original defect. But, comparing the brake failure here to a tire failure, ££[t]he mere fact of a tire blowout does not. . . tend to establish that the tire was defective” because ££[b]lowouts can be attributed to myriad causes. . . ,” Here, the brakes failed thirteen months after the truck was leased, one month after a repair had been made to the brakes, and while the truck was towing a loaded trailer. There are several plausible explanations for the brake failure, including negligent brake repair or excessive trailer weight. The failure of the brakes in this instance is not evidence that the brakes were defective when Jenkins leased the truck.

Jenkins cites Firestone Tire &c. Co. v. King for the proposition that a defect can be proved by circumstantial evidence. In Firestone, the plaintiffs presented evidence that the tires in question were originally defective. The evidence was circumstantial because the tire material in the area of the blowout was destroyed by the blowout. But the court allowed expert testimony that the blowout was caused by a tire defect. In contrast to Firestone, Jenkins presents no such testimony of a brake defect.

2. The trial court ruled that Jenkins had shown no evidence that General Motors was negligent. The court cited Bennett v. Bridgestone/Firestone, in which this court held that failure of automobile brakes, without more, does not establish evidence of negligence. “Although the parties stipulated that the accident occurred when the brakes failed, this alone does not establish as a matter of law that the brakes failed due to defendant’s negligence.” Jenkins attempts to distinguish Bennett on the basis of the ages of the vehicles at the time of the brake failure — seven years in Bennett versus thirteen months in this case. We find this unpersuasive. Here, as in Bennett, there was a significant period of time during which the vehicle was not in the exclusive control of the manufacturer.

3. Jenkins argues that General Motors had a duty to warn him of possible brake failure because General Motors had prior knowledge of similar incidents of brake failure. The trial court found no evidence in the record to support this claim, and neither do we.

4. Jenkins claims he revoked acceptance of the truck and is therefore entitled to a refund of all amounts paid for it. But Jenkins retained the truck and used it after the collision. Continued use is inconsistent with a revocation of acceptance.

Decided November 2, 1999.

Capers, Dunbar, Sanders & Bruckner, Carl P. Dowling, for appellant.

5. The trial court found that Jenkins could not recover for breach of express or implied warranties. With respect to the implied warranty of merchantability, Jenkins has failed to show any probative evidence that General Motors was responsible for the truck’s brake failure. As is the case under strict tort liability, the product defect must exist at the time of sale or lease for an action under warranty to be valid.

Jenkins argues that the brakes were defective for the purpose of hauling loaded trailers and that General Motors had given him an implied warranty of fitness for that purpose. But Jenkins still has not shown that the brakes were unsuitable for hauling trailers at the time the truck was leased. Furthermore, Jenkins cannot establish an implied warranty of fitness for a particular purpose under OCGA § 11-2-315, which provides that

“where the seller at the time of contracting has reason to know [of| any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is . . .an implied warranty that the goods shall be fit for such purpose.”

Jenkins owned and operated more than a dozen trucks. The record does not show that Jenkins relied on General Motors’ skill and judgment in selecting the series 3500 truck, or that, if he did, General Motors knew of the reliance.

General Motors made an express written warranty to Jenkins. Other than the written warranty, Jenkins has presented no evidence of an express warranty. The trial court did not grant summary judgment to General Motors on Jenkins’s claims under the written warranty, so the express written warranty claims are not before us..

Judgment affirmed.

Smith and Eldridge, JJ., concur.

King & Spalding, Franklin P. Brannen, Jr., Steven S. Griffin, Chilton D. Varner, for appellee.

       OCGA § 9-11-56 (c).

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

        Hall v. Scott USA, 198 Ga. App. 197, 200 (2) (400 SE2d 700) (1990).

        Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744 (353 SE2d 340) (1987).

        Firestone Tire &c. Co. v. Jackson Transp. Co., 126 Ga. App. 471, 475 (1) (191 SE2d 110) (1972).

       145 Ga. App. 840 (244 SE2d 905) (1978).

       Id. at 841-842.

       Id.

       208 Ga. App. 782 (2) (431 SE2d 748) (1993).

       Id. at 783.

        Fiat Auto USA v. Hollums, 185 Ga. App. 113, 114-115 (3) (363 SE2d 312) (1987); OCGA § 11-2-608.

       OCGA § 11-2-314.

        Firestone Tire &c. v. Jackson Transp. Co., supra, 126 Ga. App. 471.

       OCGA § 11-2-315.