author: Beasley, Presiding Judge.

text:
    A98A1907.
    BENNETT v. BUTLIN et al.
    (512 SE2d 13)
   Beasley, Presiding Judge.

Nell Bennett sued podiatrist Winfield E. Butlin and his firm for malpractice in connection with foot surgery Butlin performed on Bennett. The trial court granted a directed verdict in Butlin’s favor at the end of Bennett’s case. The sole issue on appeal is whether Bennett’s expert witness, Dr. Paul F. Richin, an orthopedic surgeon, was qualified to testify at trial as to whether Butlin met the appropriate standard of care.

In the fall of 1989, Bennett “stepped on a little pebble and flipped [her] foot.” She later noticed what appeared to be a small bone protruding on the side of her foot which caused pain while standing. In May 1991, Bennett consulted with Dr. Butlin. His records show he diagnosed her as having “painful extended navicular & os tibial externum.” Dr. Butlin suggested surgery to remove her “extended os tibiale externum and a portion of the navicular.” She consented, and Butlin performed the surgery.

After Bennett was allowed to put weight on the foot, she experienced pain and numbness in her toes which worsened over time. She met with Butlin on many occasions through December 1991 about the increasing pain. Butlin conceded at trial that as a result of the surgery, Bennett lost function of the posterior tibial tendon in her foot, which causes a collapsing of the foot, and also lost some of the ability to turn her foot. He stated that as a result of the surgery she had a permanent painful flat foot and was unable to stand, walk or perform other activities for any duration of time.

Eventually Bennett sought the advice of other doctors, including Dr. Richin in April 1992. Dr. Richin testified that Dr. Butlin was negligent. Butlin objected on the ground that Richin was incompetent to testify against a podiatrist.

1. “The general rule is that a member of a school of practice other than that to which the defendant belongs is not competent to testify as an expert in a malpractice case.” In Georgia, podiatrists and orthopedic surgeons belong to different schools of medical practice. The licensing requirements for professionals of the two schools are governed by separate sections of the Georgia Code. Differences include that professionals from each school must attend different colleges. Podiatrists must graduate from accredited colleges of podiatric medicine, whereas orthopedists must graduate from approved medical or osteopathic colleges.

There is a limited exception to the rule precluding members of one school of medicine from testifying against another. “Where there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify.” The two schools must overlap in their treatment of the condition in order for the expert from one professional school to be competent to testify against a professional from a different school.

Dr. Richin testified that he reviewed Bennett’s medical records which included her x-rays before and after surgery, Butlin’s diagnosis, and Butlin’s own description of the procedure he performed. Richin described the condition known as “accessory navicular” as an extra growth of bone on some people’s feet which may cause pain. He stated that “os tibial externum” is another term for the same type of growth and that a person may have more than one such growth. He described a tendon known as the posterior tibial tendon which helps support the inside of the foot and maintain the foot’s arch. If the tendon is loosened, the foot will pronate, i.e., become a flat foot. He noted that if one removes a piece of the accessory navicular, the tendon becomes looser because the tendon passes over that bone, and once the bone is removed the tendon is not as taut. He has seen accessory naviculars on many of his own patients.

When Bennett asked Richin about considerations foot surgeons face with regard to an accessory navicular, Butlin objected and asked to voir dire the witness to determine competency, which he did.

Dr. Richin’s opinions with regard to Bennett’s foot are based on his training as a medical doctor with a sub-specialty in orthopedics. He has been practicing as a board-certified orthopedic surgeon for over 20 years. No question has been raised as to his competency as an expert orthopedist. He testified that general principles of how to treat a tendon, found in medical literature, his training as an orthopedist, and his own experience performing the same procedure, informed his opinion, not “podiatric seminars, podiatric medical education, podiatric residency, or podiatric literature.” He did not have such podiatric background and was not a member of podiatric associations.

Dr. Richin testified that by reviewing Bennett’s, medical records, including Butlin’s description of the procedure, and based on his training and experience as an orthopedist, he was able to identify the procedure Butlin performed as the “Kidner Procedure,” or a “modified Kidner’s.” Dr. Butlin conceded: “The procedure that I did specifically and the Kidner procedure both involve remodeling the navicular.” Butlin’s records regarding Bennett refer to the procedure at least once as “Kidner surgery.” Butlin also testified that he had studied Kidner-related procedures in podiatric literature. Richin testified that as an orthopedist he performs “the exact same procedure that was described in [Butlin’s] operative report.” The procedure involves removing part of the accessory navicular and reconstruction or repair of the posterior tibial tendon. Richin testified there is only one standard of care for treating Bennett’s condition for both podiatrists and orthopedists.

Dr. Richin further explained that in his opinion Butlin failed to address Bennett’s tendon as completely as it should have been; that Butlin took out too much bone and thereby loosened the tendon but did not take sufficient steps to ensure the tendon would be tight. He stated that the doctor must tighten the tendon in accordance with how much bone is removed. Without proper tightening the result is a painful pronated flat foot because of a nonfunctioning posterior tibial tendon.

In Nowak v. High, this Court held that a nurse was competent to testify against a doctor accused of improperly administering an injection of phenergan. This Court found evidence of competence sufficient where (1) the nurse stated in an affidavit that she was familiar with the standard of care regarding the giving of injections in both the nursing profession and the medical profession generally; and (2) even though she did not explicitly state the method that doctors and nurses use is the same, she showed that her education, training, and experience gave her “peculiar knowledge concerning this particular area of overlapping expertise.”

In Sandford v. Howard, this Court addressed for the first time whether orthopedic surgeons were competent to testify against podiatrists. In Sandford the podiatrist had performed a “Young-Lowman Suspension” procedure on the plaintiff to alleviate her flat feet. The plaintiff’s orthopedic experts testified they were aware of the procedure and that “Campbell’s Orthopedics,” “the Bible of orthopedics,” listed the operation as an acceptable procedure. The testimony also showed that both professions recognized conservative treatment in addition to the named procedure. Based on these two areas of commonality, Sandford held the orthopedists were competent to testify against the podiatrist.

Richin’s testimony together with Butlin’s testimony and Butlin’s operative notes are sufficient to establish an overlap between the two professions with regard to rémoval of the accessory navicular and the related tendon work. There is some evidence of an overlap in the use of the specific procedure to treat the diagnosed condition. Richin recognized this exact procedure, noted that reference is made to the procedure in “Campbell’s Operative Orthopedics,” the definitive work concerning operative procedures in orthopedics, and identified it by the same name used by Butlin. He had treated the same condition and was accepted as an expert orthopedist which expertise included performing this procedure. Thus, although Richin was not familiar with podiatric education and literature, he adequately testified about the common use of the operative procedure, as performed by Butlin and as known in orthopedics. Based on Sandford v. Howard, Nowak v. High, and Hicks v. Mauldin, the court erred in concluding that Richin was incompetent to testify against Butlin as to the medical standard of care for the procedure employed.

When reviewing the grant of a motion for directed verdict, we construe the evidence with all reasonable deductions therefrom in favor of the party opposing the motion. Because Richin testified that Butlin’s-actions fell below the standard of care for performing the procedure, a directed verdict was unwarranted.

Bethea v. Smith is not controlling. In Bethea there was no testimony showing a common procedure used by both professions, an overlap in methods of treatment, or the podiatrist’s expert knowledge of the orthopedist’s method of diagnosis and treatment of the condition.

The fact that Bennett defeated Butlin’s earlier motion to dismiss in which Butlin argued that Richin’s OCGA § 9-11-9.1 affidavit was insufficient because Richin was incompetent is irrelevant. That ruling is only a determination that the affidavit satisfies pleading requirements. It does not foreclose a later finding, which addresses a different question, that the same expert is incompetent to testify under an evidentiary standard.

2. Bennett contends the court erred in requiring redaction of certain documents which, unredacted, show that medical personnel other than Butlin referred to the procedure as a “Kidner’s procedure.” Butlin had objected to three documents: the pathology report, the “anesthesiology history, physical and diagnosis and procedure,” and an order form for orthotics.

First, Butlin’s own testimony showed he agreed that Kidner’s procedure and the procedure he performed both involved remodeling the navicular. And other unredacted evidence not objected to, signed by Butlin, refers to the procedure as Kidner surgery. Thus the evidence may have been cumulative. Second, the redacted documents are not in the record. Third, “ ‘(i)f a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.’ [Cits.]” Without the objected-to documents in the record, we cannot conclude the court erred in requiring redaction of the three documents.

Decided February 3, 1999

Reconsideration denied March 1, 1999

G. Clyde Dekle III, for appellant.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Paul J. Pontrelli, for appellees.

Judgment reversed.

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

        Sandford v. Howard, 161 Ga. App. 495, 497 (4) (288 SE2d 739) (1982); Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990).

        Sandford v. Howard, supra, 161 Ga. App. at 496 (1).

       See OCGA §§ 43-34-27; 43-35-12. Orthopedic surgeons are subsumed under medical physicians. Sandford v. Howard, supra.

       See OCGA §§ 43-34-27; 43-35-12 (1).

        Sandford v. Howard, supra, 161 Ga. App. at 497 (5); see also Nowak v. High, 209 Ga. App. 536, 538 (433 SE2d 602) (1993) (same); HCA Health Svcs. v. Hampshire, 206 Ga. App. 108, 111 (3) (a) (424 SE2d 293) (1992) (“in order for an affiant to be ‘an expert competent to testify,’ the expert either must be a member of the same professional school as the defendant or, if from a different professional school, must state the particulars how the methods of treatment are the same for the different schools in order to establish that the affiant possesses the expertise to be able to give an opinion regarding the applicable standard of care to which the defendant is held. [Cits.]”); Chandler v. Koenig, 203 Ga. App. 684, 685 (417 SE2d 715) (1992); Milligan v. Manno, supra; Bethea v. Smith, 176 Ga. App. 467, 468 (2) (336 SE2d 295) (1985).

        Hewett v. Kalish, 264 Ga. 183, 184-185 (442 SE2d 233) (1994).

       Supra, 209 Ga. App. 536.

       Id. at 538. See also Hicks v. Mauldin, 190 Ga. App. 660, 661-662 (4) (379 SE2d 806) (1989) (osteopathic pediatrician competent where he testified there was absolutely no difference in the way an allopathic physician and an osteopathic pediatrician would treat the condition).

       Supra, 161 Ga. App. 495.

       Compare HCA Health Sues. v. Hampshire, supra, 206 Ga. App. 111 (3) (a) (affidavit of allopathic physician insufficient against osteopath because it contained no evidence regarding the methods of treatment so as “to establish ‘a professional overlap of expertise in at least one matter alleged by (appellees) to constitute malpractice’”); Chandler v. Koenig, supra (affidavit of pharmacologist in malpractice suit against physician insufficient since areas of overlapping expertise were not clearly set forth); Milligan v. Manno, supra (osteopathic physician’s affidavit insufficient in action against allopathic physician since it contained no evidence that the methods of treatment of plaintiff’s condition were the same); Bethea v. Smith, supra (affidavit of podiatrist in action against orthopedic surgeon that he was familiar with the medical profession generally was insufficient where there was no showing that method of treatment was the same for the two professions).

        Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

       Supra, 176 Ga. App. 467.

        Hewett v. Kalish, supra, 264 Ga. at 184-186 (1).

       Id.

        Stoneridge Properties v. Kuper, 178 Ga. App. 409, 412 (1) (343 SE2d 424) (1986).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A98A2218.
    EDWARDS et al. v. DEPARTMENT OF CHILDREN & YOUTH SERVICES.
    (512 SE2d 339)
   Andrews, Judge.

Regina Edwards and Samuel James, parents of Latasha Edwards, appeal from the trial court’s grant of summary judgment to the Department of Children & Youth Services (the Department) on their claim under the Georgia Tort Claims Act (the Act) for the wrongful death of their daughter. In granting summary judgment, the trial court determined that the acts of the employees of the Macon Youth Development Center (YDC) came under the “discretionary acts” exception to the Georgia Tort Claims Act’s waiver of sovereign immunity. We agree and affirm.

This case arose after Edwards, who was 15 at the time, died from a subdural hematoma while an inmate at the YDC. Her parents claimed the workers and nurses at the YDC were negligent in failing to provide reasonable medical care for Edwards while she was in their custody. The Department moved for summary judgment, contending that each decision made by the staff members and nurses was discretionary in nature and therefore the claim was barred by sovereign immunity. The trial court granted the motion for summary judgment and this appeal followed.

“To prevail at summary judgment under OCGA § 9-11-56, 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. . . .” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accordingly, viewed in the light most favorable to appellants, the record shows that Edwards entered the Macon YDC in May 1995, and stayed there until her death on December 23, 1995. The doctor who performed the autopsy on Edwards said the subdural hematoma had not been present in her brain for more than 48 to 72 hours. However, on her health history sheet dated May 4, 1995, Edwards checked that she had frequent headaches and dizziness. Her medical records for the eight months are extensive showing, among others, complaints about chest pains, a racing heart, panic attacks, headaches, leg pain, arm pain, swollen fingers, foot pain, sleeplessness, stomach pains, and sore toes. Edwards’s roommate testified that Edwards “complained every day.” She said Edwards first complained about her feet swelling and that she had to walk slowly. Then she complained about her ankles, her legs, her stomach, her chest. Another resident at the YDC said Edwaids “always hurt somewhere.”

Nurse Murphy testified at the inquest and said Edwards had been to the clinic on the 22nd, the day before she died, complaining about a headache. Murphy examined her and saw that her nasal passages were red and swollen and gave her something for sinus problems. Murphy said Edwards came back later that day to help out at the clinic and did not complain about her head hurting anymore that day. Nurse Jenkins testified that she spent the afternoon of the 22nd with Edwards in the clinic, and Edwards never complained about a headache. She said Edwards helped her wrap gifts for the other students.

Richard Smith, the house parent on duty the morning of the 23rd, said Edwards came to him about 11:00 or 11:30 that morning and told him her head hurt. He gave her Tylenol. Around 4:00, just before Smith left, she came to him again and said her head hurt really bad, her sinuses were bothering her, and her eyes were burning. He gave her Tylenol and Sudafed.

Antonio Hodges, the house parent who came on duty after Smith left, testified that Edwards was usually complaining about some type of ache. He said that on the day of the 23rd, Edwards was complaining more than usual and they called the nurse around 5:00. They also talked about taking Edwards to the detention unit around 5:00 so she could be monitored more closely. Edwards refused to go, saying she was too weak. After returning from supper, another resident helped Edwards walk to the bathroom. The resident said Edwards kept saying, “Help me; help me.”

The security guard who came to check on Edwards at 5:50 that evening stated that she could not stand on her own. She kept sliding back to the floor when lifted to her feet. The security officer said he did not know whether she did not have the strength to stand on her own or whether she was “faking it.”

Nurse Williams testified at the inquest and said she received a call from Cottage D around 5:00 that afternoon, saying that Edwards was having headache pain. She suggested Tylenol and when told that Edwards had already been given Tylenol and it did not help, said she would call Nurse Brown. Williams called Nurse Brown and left a message. Ms. Murphy, the nurse on call, responded to the message and said she would call the cottage and talk to one of the workers, find out more information, and call back. Nurse Murphy called back and told Williams to take some Sudafed and Tylenol with her for Edwards when she went to the cottage that night because she had noticed some sinus problems the day before.

Williams left the clinic to make her rounds to dispense medication around 7:30 to 7:45. When she got to Cottage D, Edwards was lying on her bed. Williams asked her what was wrong and she said her head was hurting. Edwards showed Williams where the pain was and Williams rubbed her head and checked her eyes. Then Williams asked her to squeeze her hands and Edwards did, asking her why she wanted her to do that. Williams then ran her finger or pen across the bottom of Edwards’s feet and she responded.

After Williams left Cottage D, one of the workers said Edwards would not take her medication, so she went back to the cottage. At that point, Edwards got up and took her medicine and then lay back down. Williams said Edwards was a little wobbly when she got up, but no more than was normal after someone had been sleeping. Around 8:20 Nurse Brown called Williams to check on Edwards and Williams told her she had checked Edwards and her vital signs were okay and Edwards was sleeping.

Hodges testified that after they allowed Edwards to go back to her room, they checked on her every five to ten minutes. Edwards responded each time they spoke to her. Kerry Flanders, one of the other residents, also testified that both Mr. Hodges and Ms. Johnson were checking on Edwards every five minutes. Hodges said he thought they might have to take her to the Medical Center but she was still “okay” at that point.

A short while after Nurse Williams left, Flanders saw Edwards lying on her bed, apparently not breathing. She ran down the hall and told Ms. Johnson. After Kerry Flanders told Ms. Johnson that Edwards looked strange, Johnson went back to Edwards’s room and then called for Hodges. Hodges called security and told them to call the nurse. Security arrived almost immediately and Hodges started rescue breathing. When Nurse Williams arrived she checked Edwards’s vital signs again, told one of the house parents to call 911 and started CPR.

After reviewing the evidence, the trial court concluded that the claims were barred under the Georgia Tort Claims Act because the decisions involved in treating Edwards were discretionary, not ministerial. This appeal followed.

On appeal, the parents argue that the trial court erred in finding the actions of the YDC employees were discretionary. They contend the actions were ministerial because the Department had an absolute, nondiscretionary duty to provide or obtain medical care for Edwards and should have called 911 much sooner. They claim the violation of this duty was a direct violation of the Department’s policy and procedure.

Under the Georgia Tort Claims Act, the State waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties. OCGA § 50-21-23. However, the Act creates an exception to this waiver for the discretionary acts of state employees, even when the discretion involved is abused. OCGA § 50-21-24 (2). OCGA § 50-21-22 (2) defines “discretionary function or duty” as follows: “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.”

It is not disputed that the Department had a duty to provide Edwards with medical care and treatment. OCGA § 49-4A-7 (b) (5). But, what medical care to provide is discretionary and therefore is subject to immunity. Cantrell v. Thurman, 231 Ga. App. 510, 514 (499 SE2d 416) (1998).

In Cantrell, this Court held that, as a government employee, the defendant physician would have immunity for medical malpractice claims and his acts in diagnosing and treating the inmate would have been discretionary. Id. at 515. But, since the doctor was working as an independent contractor, he was not a government employee under the Georgia Tort Claims Act and, therefore, was not entitled to immunity under the Act. Id. Likewise, in Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997), the court stated “the decisive question in this case is whether Dr. Plouffe was acting within the scope of his official state duties while treating Ms. Keenan. If he was, then he is protected from suit by OCGA § 50-21-25.” Id. at 793. The court concluded that since Ms. Keenan was a private-pay patient, the case related strictly to the medical care of Ms. Keenan and did not “call into play what might be termed ‘governmental considerations,’ such as the allocation of state resources for various types of medical care.” Id.

Similarly, in Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534 (469 SE2d 786) (1996), the plaintiff brought a claim for wrongful death and medical malpractice against the hospital for discharging the decedent, who suffered from an organic mental disorder, epilepsy, cardiovascular disease, thyroid problems and numerous other ailments. This Court concluded that the determination to discharge the patient to a personal care home required the health care provider to weigh “possibly competing economic and social policy considerations.” Id. at 537. See also Christensen v. State of Ga., 219 Ga. App. 10, 13 (464 SE2d 14) (1995) (even assuming hospital denied treatment, hospital employees’ decision whether to admit or discharge a patient is a discretionary act); Schmidt v. Adams, 211 Ga. App. 156 (438 SE2d 659) (1993) (although not decided under the Georgia Tort Claims Act, we held that the failure of a nurse and physician’s assistant at a county jail to diagnose a fatal pulmonary emboli and provide treatment were discretionary).

Here, employees were expected to call 911 in the event of a medical emergency but, if able to do so, they were to call security and the nurse first. Hodges, one of the two house parents on duty the night of the 23rd, stated in his affidavit that Edwards was prone to complain about aches in different parts of her body and exaggerate the severity of her problems to get attention. He also stated that the other inmates at the YDC lavished attention on each other when one of them did not feel well. Hodges, Johnson and Williams all submitted affidavits in which they stated they were concerned about Edwards, checked on her and monitored her closely but, in light of her past behavior when she did not feel well, they never believed they were faced with a medical emergency or that Edwards was seriously ill.

Therefore, the record shows that the YDC was under a duty to provide medical care to the children in their custody and they did provide that care. There were nurses on duty at all times and the staff called and consulted the nurses, monitored her condition and provided care and support. The type of care and support and what and how much medical treatment to provide are decisions that must be left to the discretion of the employees who work with the inmates. See Keenan, supra at 793; Cantrell, supra at 514; Wilkins, supra at 537. Even if it could be said that in this case the workers of the YDC abused that discretion in not calling a doctor or 911 sooner, sovereign immunity is not waived under the Act. OCGA § 50-21-24 (2).

Judgment affirmed.

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

Decided February 12, 1999

Reconsideration denied March 1, 1999

Watkins, Lourie & Roll, Joseph W. Watkins, Lance D. Lourie, Langdale, Vallotton, Linahan, Threlkeld & Wetherington, William R Langdale, Jr., William P. Langdale III, for appellants.

Thurbert E. Baker, Attorney General, Patricia Guilday, Assistant Attorney General, Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, for appellee.

       Appellants also brought claims under 42 USC § 1983 against several individual employees of the YDC. Appellants dismissed these claims prior to the hearing on the motion for summary judgment.

       The delay in calling 911 after they found Edwards unconscious appears to have been approximately ten minutes. The security officer’s notes show that at 9:00 security was called to Cottage D and at 9:10 the ambulance was called. The parents failed to show any proximate cause as to this last delay, however, because the doctor who conducted the autopsy stated that once a patient with a subdural hematoma passes out “they’re not going to respond.” In addition, the paramedic who first responded to the 911 call testified that Edwards was dead when they arrived.


author: Blackburn, Judge.

text:
    A98A1980.
    JACKSON v. POST PROPERTIES, INC.
    (513 SE2d 259)
   Blackburn, Judge.

Kim Jackson appeals the trial court’s order granting Post Properties, Inc.’s (Post) renewed motion for summary judgment in this premises liability action. Jackson was raped by an unknown assailant after moving from an upper level unit to a ground level unit at Post Brook Apartments. She contends that issues of material fact involving inadequate security preclude summary judgment. We agree that issues of material fact exist and, therefore, reverse the trial court.

We review de novo a trial court’s grant of summary judgment. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995). “To prevail at summary judgment under OCGA § 9-11-56, 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. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The general rule is that a landlord is not an insurer of his tenant’s safety, Lau’s Corp., supra at 492; however, the landlord does have a duty to exercise ordinary care to prevent foreseeable third-party criminal attack upon tenants. See Sturbridge Partners v. Walker, 267 Ga. 785 (482 SE2d 339) (1997). A tenant will be preeluded from recovery, however, as a matter of law against the landlord when he or she has equal or superior knowledge of the risk and fails to exercise ordinary care for his or her own safety. O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (390 SE2d 248) (1990) (“ ‘[t]he superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care’ ”). See also Clark v. Carla Gay Dress Co., 178 Ga. App. 157 (342 SE2d 468) (1986).

Here Jackson knew of the risk of third-party criminal attack. Before Jackson was raped, another tenant had been raped in a ground floor apartment at Post Brook. When this rape occurred, Jackson lived at Post Brook in an upper level apartment where she had previously been the victim of an unsolved burglary. Post, in response to the rape, conducted town hall-type meetings with the residents and distributed community newsletters to address the residents’ safety concerns. Jackson learned by attending these meetings and receiving the newsletters that the previous rape occurred in a ground floor unit and the suspect had not been apprehended. With knowledge of the prior rape and the experience of being the victim of an unsolved burglary, Jackson was on notice of the risk of third-party crime at Post Brook. When Jackson moved from her upper level apartment to the ground floor, she and Post had equal knowledge of the risk of third-party criminal attack, including rape. Thus, the central issue is whether Jackson could have taken any action in the exercise of ordinary care to avoid the consequences of Post’s alleged negligence. Post and Jackson were equally aware of the risk of third-party criminal attack.

“[0]rdinary [care] is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” OCGA § 51-1-2. “Exactly what constitutes ‘ordinary care’ varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm.” (Citations and punctuation omitted.) Lau’s Corp. v. Haskins, supra at 493 (2). Whether a party has failed to exercise ordinary care may be decided by the court only in cases in which “undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.” (Punctuation omitted.) Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 875 (2) (392 SE2d 535) (1990).

1. A question of fact exists as to the proper use of the window locks. Jackson alleges that the assailant entered through her sun-room window which was closed and locked. She claims that the night she was raped, the sunroom window was locked with the manufactured “spoon lock” and the “thumbscrew” locks which Post provided to all ground floor residents. Post contends that Jackson was improperly using the “thumbscrews” and, as a result, the assailant was able to gain entry through her sunroom window.

Our review of the record reveals a factual issue regarding the proper use of the “thumbscrews.” Jackson admits in her deposition that she had been told by Post to place the “thumbscrews” at the bottom of the top frame. The night she was attacked the “thumbscrews” in her sunroom window were six to eight inches above the base of the frame so that she could more easily open the window for fresh air. The Executive Vice President of Services for Post deposed that Post had previously disseminated information in newsletters to residents regarding a proper use of the “thumbscrews.” The newsletters indicated that a proper use of the “thumbscrews” required placing them at a point approximately six inches from the bottom. When Jackson was raped, her “thumbscrews” were placed at a point in compliance with this instruction.

2. Post contends that Jackson was responsible for reporting defects in the window locks, and her failure to make any report precludes its liability. Post required all residents, including Jackson, to sign a document stating that residents are responsible for their own safety and that they will report any defect in apartment locks to Post in writing. Based on this document, Post contends that because Jackson did not report any defect in her locks, it is not responsible for her injuries. This contention presupposes that Jackson objectively knew of a defect in her window locks. Jackson deposed that she knew the windows were “flimsy.” Post had reason to know of this defect prior to Jackson’s rape because residents had complained about the flimsy nature of the windows at one of the town hall meetings after the first rape.

In Demarest v. Moore, 201 Ga. App. 90 (410 SE2d 191) (1991), we reversed the trial court’s grant of summary judgment to the defendant landlord where a burglar broke into the plaintiff’s apartment through an inadequate dead-bolt lock installed when the apartment complex was built. The landlord and tenants were put on notice of the proper type and installation of dead-bolt locks at a Neighborhood Crime Watch meeting. Id. at 91. The plaintiff “never requested that the door lock of his apartment be repaired or requested permission, as required by the terms of the lease, to change or modify the door locks.” Id. Therein, we determined that issues of fact, including the suitability of the dead-bolt lock, precluded summary judgment. Id. at 92. Similarly, a jury must determine whether Jackson’s rape was the result of the flimsy nature of the windows installed when the Post apartments were built.

3. Post contends that Jackson failed to exercise ordinary care by moving to a ground floor apartment. Post avers that it is significant that Jackson moved from an upper level apartment to the ground floor while aware of the risk of criminal attack on the ground floor. This argument is untenable. By its very nature, it suggests that Post admits that its apartments were defectively designed for even having first floor apartments and that any tenant who lives on the first floor assumes all risk of criminal attack. In any event, a jury must determine whether Jackson’s move to a ground floor apartment was a failure to exercise ordinary care for her own safety.

4. The trial court improperly relied on our decision in Post Properties v. Doe, 230 Ga. App. 34 (495 SE2d 573) (1997) (physical precedent only). As physical precedent, Doe is not binding authority in any other matter. Additionally, although the rape in Doe and the rape here occurred at the same property, there are significant factual differences between the two cases such that our previous decision is not material to the case at hand. Issues of fact exist in the present case regarding Post’s failure to protect Jackson from third-party criminal attack which were not present in Doe.

5. Issues of fact remain as to whether the courtesy officer was utilized in a negligent manner. In response to the crimes against persons and property at Post Brook, Post employed a.courtesy officer for resident and property protection. When a landlord acts to provide security, it must do so in a non-negligent manner. Cooperwood v. Auld, 175 Ga. App. 694 (334 SE2d 22) (1985). However, no courtesy officer was on duty the night Jackson was raped. A jury must determine whether this omission was unreasonable in light of the known risk of harm.

6. Additionally, a jury determination is required as to the adequacy of Post’s maintenance of the property’s lighting and landscaping. Summary adjudication on an element of negligence is appropriate only where “undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.” (Punctuation omitted.) Bishop, supra. We conclude that the record contains no such set of facts.

Viewing the undisputed evidence in a light most favorable to Jackson, the non-movant, there are questions of fact to be resolved by a jury. Accordingly, the trial court improperly granted summary judgment to Post. Therefore, we reverse and remand this case for further proceedings not inconsistent with this opinion.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.

Decided March 1, 1999.

Carter & Ansley, Keith L. Lindsay, Robert A. Barnaby II, for appellant.

Johnson & Kane, Stephen R. Kane, for appellee.


author: Johnson, Chief Judge.

text:
    A98A2131.
    SOWELL et al. v. BLACKMAN et al.
    (512 SE2d 713)
   Johnson, Chief Judge.

J. R. Sowell, Jr. and his son, Randy Sowell, (“the Sowells”) sued Hal S. Blackman and J. R. & S. T., Inc. (“Blackman”) claiming tortious interference with a contractual relationship. The case was tried before a jury. At the conclusion of the Sowells’ case, the trial court granted Blackman’s motion for a directed verdict. The Sowells appeal. For the following reasons, we conclude there was sufficient evidence to require the case to go to the jury. It was therefore error to have granted a directed verdict, and the judgment of the trial court must be reversed.

Rick and Cheryl Boyer apparently were the sole shareholders and operators of Gym South, Inc., a gymnastics business for children. They also were the owners of the property and gymnasium building used by Gym South. The Boyers obtained a substantial loan using the gymnasium property as security. They were unable to make the monthly loan payments, and the lender foreclosed. As a result, the Boyers were required to move their gymnastics business to another facility.

The Boyers searched for rental property for their business. They found a building owned by the Sowells which appeared to fit their needs. The Sowells agreed to lease space in their building to the Boyers, and the parties executed a written lease (the “Sowell/Boyer lease”). The Boyers took possession of the rental property but abandoned it shortly thereafter.

Believing that the Boyers had been enticed by Hal Blackman to breach the lease, the Sowells brought suit against Blackman for tortious interference with a contractual relationship. The Sowells asserted at trial that Blackman interfered with their contract with the Boyers by persuading them to abandon the Sowells’ rental property and refuse to pay rent. The Sowells presented evidence to show that they had incurred a loss of rent, the cost of extensive premises renovations which had been required to obtain an occupancy permit for the Boyers, the cost of repairing damages to their building which occurred when the Boyers moved, and the cost of disposing of a substantial amount of property which the Boyers abandoned outside the Sowells’ building. In granting a directed verdict, the trial court found the Sowells failed to introduce evidence, as to one element of their cause of action, sufficient to let their case go to the jury. For the following reasons, we disagree.

The record before us shows that before the trial court directed a verdict against them, the Sowells had produced evidence showing that Patricia Dutton, a real estate agent, had negotiated the Sowell/ Boyer lease on behalf of the Sowells. The Boyers signed the lease in both their individual and corporate capacities. About a month after the lease was executed, Dutton received a call from Cheryl Boyer asking for a copy of the lease. She also told Dutton that business was not good and enrollment was down. A few days later, Dutton received a call from Hal Blackman. Blackman told her he had purchased the Boyers’ old gymnasium building at an auction and he was going to dissolve Gym South and reopen it with the Boyers as employees. Blackman asked Dutton to talk to J. R. Sowell and encourage him to refund the Boyers’ rent and deposit money. Dutton subsequently called Blackman and informed him that the Sowells had an enforceable lease and expected it to be enforced. A few days later, Dutton received a fax from Rick Boyer referring to Dutton’s conversation with Blackman and indicating, “we cannot afford to pay rent at this time and will not be able to fulfill the remaining lease agreement. . . . We are heavily in debt and have decided to dissolve our company. Please do not hold us responsible for the lease. And please work with Hal Blackman on a new lease.” Later that evening, Rick Boyer called Dutton and informed her that he was going to move the business back to the old Gym South building.

In late May, Dutton informed J. R. Sowell of Hal Blackman’s call. About a week later, Blackman called Sowell directly. Blackman said he had bought the old Gym South building, was taking over the business, and would probably hire the Boyers. Although not a party to the Sowell/Boyer lease, Blackman also told Sowell that he wanted out of the lease and that the lease was not valid because it had an incorrect 30-day termination clause. Sowell informed Blackman that his lease agreement was with the Boyers. During this phone conversation, Blackman did not attempt to negotiate any type of lease with Sowell.

A few days later, a meeting was held between the Boyers, the Blackmans and J. R. Sowell. Blackman again asserted that the Sow-ell/Boyer lease was invalid. When asked if he had a copy of the lease, Blackman replied that he knew about it. During this meeting, Blackman did not assert that he had purchased the corporate assets of Gym South, but he did acknowledge that he did not currently own the old Gym South building as he had earlier claimed. Blackman made no attempt to negotiate a new lease with J. R. Sowell, and neither he nor the Boyers claimed that the Sowell/Boyer lease had been timely terminated.

Subsequently, Cheryl Boyer called J. R. Sowell and told him to come pick up the June rent. When Sowell arrived at his rental property, the Boyers were busy, but Blackman, who was present, handed him a sealed envelope. Although the Boyers owed just over $2,000, the envelope contained only $1,500. The balance of the rent was never paid. Before Blackman became involved in the venture, the Boyers paid the rent on time.

Hal Blackman’s children were enrolled as students of Gym South when it was located in the original gymnasium, and he was the president of the Gym South parents booster club. Blackman learned from a newspaper notice that the Boyers’ gymnasium was going to be sold at auction. Shortly thereafter, Rick Boyer notified the parents club that the business would be moving to the Sowells’ building. After the move, the Boyers asked Blackman for help because they were losing students. Blackman decided to buy Gym South’s assets, including all its gymnastic equipment, from the Boyers. He later decided to buy the original Gym South building from its new owner. Blackman intended to hire a staff, including Rick Boyer. Blackman did not assume the Boyers’ lease obligation to the Sowells or any other corporate debts.

Blackman gave the Boyers a $24,000 promissory note for the Gym South assets, payable in monthly installments of $200 with no interest. The note provided that it and all obligations thereunder would be extinguished if Boyer was terminated from or voluntarily terminated his employment with Blackman. According to Blackman, it was the Boyers’ decision not to pay J. R. Sowell the entire month’s rent for the month of June, and it was also Rick Boyer’s idea to dissolve the Gym South corporation. The same day that Blackman bought the Gym South assets, Rick Boyer gave him a notice that Gym South had been dissolved and acknowledging that Rick Boyer now owned the $24,000 promissory note. Blackman incorporated his new company under the name of J. R. & S. T., Inc. He purchased the right to continue to use the trade name of “Gym South.” At the time of this transaction, Blackman testified, he was not aware of the contents of the Boyers’ lease with the Sowells.

Blackman denied that he meddled or interfered with the Boyers’ business; rather, he claimed to have purchased the Gym South assets to ensure that a gymnastics school remained in Fayette County. Blackman denied that he ever told J. R. Sowell that the lease was invalid or that he ever discussed the lease with him. After he purchased the assets, Blackman was present at a meeting between the Boyers and J. R. Sowell. Sowell was not interested in discussing any short-term lease agreement with Blackman and maintained that he had an enforceable lease with the Boyers. Blackman admitted that he told Sowell there was a “great possibility” that he would move Gym South out of the Sowells’ building. Rick Boyer was employed by Blackman when the corporate assets were subsequently moved from the Sowells’ building, and Rick Boyer directed the move.

1. To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show that the defendant acted improperly and without privilege; acted purposefully and with malice with the intent to injure; induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and by tortious conduct proximately caused damage to the plaintiff. Disaster Svcs. v. ERC Partnership, 228 Ga. App. 739, 740 (492 SE2d 526) (1997). The defendant must be a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract. Atlanta Market &c. Co. v. McLane, 269 Ga. 604, 610 (2) (503 SE2d 278) (1998).

In granting the motion for directed verdict, the trial court concluded there was no evidence of improper action or wrongful conduct on the part of Blackman. Because there exists sufficient circumstantial evidence to send this case to the jury, we must reverse.

Blackman asserted that he purchased the assets of the Gym South corporation so that gymnastic instruction could remain in Fayette County. He also testified that he did not interfere or meddle in the Boyers’ business. As a general rule, a person has an absolute legal right to exercise his business judgment so long as his decisions are not in violation of the law or public policy. See Hughes v. Reynolds, 223 Ga. 727, 730 (157 SE2d 746) (1967); Gray v. Ga. Real Estate Comm., 209 Ga. 301, 306 (71 SE2d 645) (1952). “The exercise of an absolute legal right is not and cannot be considered an interference with a contractual or potential contractual relationship.” Disaster Svcs., supra at 742. No liability exists for procuring a breach of contract when the breach is caused by the exercise of an absolute right. Halverson v. Murzynski, 226 Ga. App. 276, 277 (1) (487 SE2d 19) (1997). Accordingly, Blackman’s exercise of business judgment to purchase the assets of Gym South and the original gymnasium building, to move the acquired assets back to the original building, and to hire Rick Boyer would not, standing alone, constitute an improper action or wrongful conduct. However, there is evidence that Blackman repeatedly stated that the Sowells’ lease agreement with the Boyers was invalid and attempted to have J. R. Sowell agree not to enforce it. Blackman’s assertions regarding the invalidity of the lease were made, on at least one occasion, in the presence of the Boyers. The evidence also shows that Blackman asked Dutton to intercede with J. R. Sowell so that the Boyers could get their security deposit and rent back, and it was Blackman who handed J. R. Sowell the envelope containing only a portion of the June rent. This circumstantial evidence when combined with Blackman’s other conduct, including the buying of the corporate assets, moving the assets, and immediately hiring Rick Boyer, is sufficient to create a jury issue as to each and every element of the claim of tortious interference with a contractual relationship.

Decided March 1, 1999.

Howard G. Slade, for appellants.

Philip S. Coe, for appellees.

2. A directed verdict may be granted only where there is no conflict in the evidence as to any material issue and the evidence and all reasonable deductions therefrom demand a particular verdict. Westin Hotels v. Natkin Svc. Co., 192 Ga. App. 493, 494 (1) (385 SE2d 141) (1989). To avoid a directed verdict the plaintiff is not required, even when relying only on circumstantial evidence, to establish his contentions to the exclusion of every other reasonable hypothesis. A court cannot direct a verdict if there is any reasonable inference supported by evidence which would authorize a verdict to the contrary. Id. at 495 (1). The trial court erred in directing a verdict in favor of Blackman.

Judgment reversed.

Smith and Barnes, JJ, concur.


text:
    A98A2242.
    RIVERS v. THE STATE.
    (513 SE2d 263)
   Johnson, Chief Judge.

Emanuel Rivers appeals his conviction of possession of cocaine. He contends that the trial court gave an erroneous similar transactions charge to the jury. We agree and reverse his conviction.

1. The trial court gave the following charge:

Sometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose to which the evidence is limited and not for any other purpose.
The law provides that the evidence of other transactions of this defendant that are similar in terms of course of conduct, the common design, scheme, plan, motive, location and time or place or other factors connected to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind, and the crimes charged in the case now on trial.
Such evidence, if any, may not be considered by you for any other purpose.
The defendant is on trial in this bill of indictment only. And the court does not express any opinion as to whether the defendant has any other offenses or transactions. This is a matter solely for your determination.
Before you may consider evidence of similar offenses or transactions for any purpose, it must be first made to appear and you must be satisfied that this defendant is the same person to whom the evidence of similar transactions pertains. If you believe that that has been proven, however, you are strictly limited in your consideration of the evidence as to the identity, state of mind or element of the offense charged in this indictment.

(Emphasis supplied.)

The first paragraph of this instruction mirrors the language of the first paragraph of the charge on similar transaction evidence found in the Suggested Pattern Jury Instructions for Criminal Cases. The court’s charge, however, substantially deviates from other portions of the pattern instruction which state:

The law provides that evidence of other (offenses) (transactions) of this defendant which are similar or connected to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does, the [(identity of the perpetrator) (state of mind, e.g., knowledge or intent of the defendant)] in the crime(s) charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.
The defendant is on trial for the particular offense charged in this.bill of indictment only, and he/she is not on trial for the other (offense) (transaction). This court does not express an opinion as to whether the defendant has committed any other offense; this is solely a matter for your determination.
However, I further instruct you that before you can consider any other (offense) (transaction), for the limited purpose^) referred to, you must first determine whether the accused committed the other (offense) (transaction); if so, whether the act was similar enough to the crime charged in the indictment, so that proof of the other (offense) (transaction), in light of the limited purpose for which it has been presented to you, tends to prove the crime charged in the indictment.

(Emphasis supplied.) Suggested Pattern Jury Instructions (rev. November 1998), Vol. II: Criminal Cases, Part 3, Sec. O, pp. 23-24. The pattern instruction has been carefully crafted to ensure that the jury does not use similar transaction evidence in a manner not authorized by law.

(a) The concern which our Supreme Court has shown regarding the proper use of similar transaction evidence by the jury can be readily seen in the cases of Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991), and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The Supreme Court noted in Williams, supra at 641 (2) (a), that “[i]n order to protect an accused and to insure him of a fair and impartial trial before an unbiased jury, we have long embraced the fundamental principle that the general character of an accused is inadmissible unless the accused chooses to put his character in issue. [Cit.]” See OCGA § 24-9-20 (b). The general rule in Georgia is that “on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.” (Citations, punctuation and emphasis omitted.) Stephens, supra at 469 (6). As a corollary of these fundamental principles, where an accused is on trial for the commission of a crime,

“proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. [Cit.]” The rationale for the latter rule is that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue. An accused is “entitled to be tried for the offense charged in the indictment, independently of any other offense not connected with the transaction upon which the indictment was based.” [Cit.]

Williams, supra at 641-642 (2) (a).

Because of the potency of similar transaction evidence in criminal prosecutions, the state understandably seeks to introduce it whenever it can. To strike a balance between the right of the state to introduce legitimate similar transaction evidence and the right of the defendant to a fair trial, our Supreme Court has required certain affirmative showings and determinations to be made as a prerequisite to its admission. See, e.g., Williams, supra.

The state must first affirmatively show on the record that it is introducing similar transaction evidence “not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.” Williams, supra at 642 (2) (b). Because it is extremely important to a defendant’s right to a fair trial that similar transaction evidence be admitted and used only for legitimate purposes, the trial court must make an express determination, as a prerequisite to admitting such evidence, as to whether the state is introducing it for an appropriate purpose. Id.

It is clear from the procedural safeguards in Williams, that our Supreme Court recognizes the inherent danger that exists when a jury is tendered similar transaction evidence and then misinformed as to its proper limited use. In such instances, a fair risk exists that the jury might use the evidence to convict the defendant merely because they perceive he is a person of general bad character, or, as recognized in Williams, supra, on the belief that because the defendant committed some other crime he must also have committed the crime with which he is charged. It is in the light of these judicial concerns and safeguards that we must now analyze the questioned jury instruction.

(b) The language in the questioned charge inadvertently but substantially expands the limited purposes for which similar transaction evidence can be used. By informing the jury that it also could consider similar transaction evidence for the purpose of showing “the crimes charged in the case,” and in considering an “element of the offense charged in this indictment,” a fair risk exists that the jury was confused and misled as to the proper limited use of similar transaction evidence to the prejudice of Rivers. Thus, the jury might have improperly concluded that similar transaction evidence could be directly used to prove the crime charged or one or more of its elements; for example, it might have inferred that because Rivers had committed a previous crime, he had bad character and therefore was likely to have committed the crime charged in the indictment. The Supreme Court specifically recognized this danger when it created the Williams safeguards. See Williams, supra at 641 (2) (a).

The trial court’s charge was overly broad and erroneous on its face; it was not the result of a mere slip of the tongue. When an error is shown to exist in a charge, a rebuttable presumption arises that the charge is prejudicial and harmful, and this Court must so hold unless it appears from the entire record that the error is harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988); Austin v. State, 218 Ga. App. 90, 91 (2) (460 SE2d 310) (1995); Chamberlain v. State, 216 Ga. App. 207, 208 (2) (453 SE2d 793) (1995), re-affirmed by a majority special concurrence in a whole court opinion, Moak v. State, 222 Ga. App. 36, 43 (473 SE2d 576) (1996).

Decided March 1, 1999.

Johnson, Prioleau & Kenison, Suparna Malempati, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

The state has not overcome the presumption of prejudice. A fair risk exists that the charging error prejudiced Rivers. “As we have no way of knowing whether the jury applied the erroneous charge in reaching their verdict,” we cannot conclude that the error did not contribute to Rivers’ conviction. Chamberlain, supra. The case of Roberts v. State, 267 Ga. 669, 675-676 (10) (d) (482 SE2d 245) (1997), is distinguishable. The charging error in Roberts resulted from a slip of the tongue, and unlike the evidence in this case, the evidence in Roberts was overwhelming. A new trial is required, and this case is remanded for that purpose.

2. In view of our holding in Division 1 (b), Rivers’ remaining enumerations of error are not addressed.

Judgment reversed and case remanded for new trial.

Smith and Barnes, JJ., concur.


text:
    A98A2295.
    ETS PAYPHONE, INC. v. TK INDUSTRIES et al.
    (513 SE2d 257)
   Blackburn, Judge.

ETS Payphone, Inc. appeals from the trial court’s dismissal, for lack of personal jurisdiction, of its complaint against TK Industries for breach of contract and fraud. TK Industries, a non-resident of Georgia, is not subject to personal jurisdiction under the Long Arm Statute, specifically OCGA § 9-10-91 (1) or (3), and therefore, we affirm.

On a motion to dismiss for lack of personal jurisdiction, a “[defendant bears the onus of proving lack of personal jurisdiction. Easterling v. Easterling, 231 Ga. 90, 91 (1) (200 SE2d 267) [(1973)]. If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of the exercise of jurisdiction, and the appellate standard of review is non-deferential. Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435) [(1993)].” (Punctuation omitted.) Intl. Capital Realty Investment Co. v. West, 234 Ga. App. 725, 727 (1) (507 SE2d 545) (1998).

Viewing the facts in the light most favorable to the exercise of personal jurisdiction, the record shows that TK Industries, a Florida corporation, is in the business of acquiring and selling payphone routes. Kim Neill, Chief Executive Officer of TK Industries, learned that ETS Payphone might be interested in purchasing a certain route located in New York State. Previously, on her only visit to ETS Payphone’s office, Neill had expressed a general interest in doing business with ETS Payphone. Neill contacted ETS Payphone by telephone from Florida about the New York route. Thereafter, ETS Payphone and TK Industries entered into a letter of intent and agreement with regard to the New York route. All communications or negotiations for the letter of intent took place either by mail or by phone.

The letter of intent provided for a surety deposit in the amount of $25,000. It further provided, in part, “[t]he deposit amount shall be placed in a non-interest bearing escrow account, and shall be maintained for a period of fifteen (15) days to allow ETS the review of income and expense information, as well as to inspect payphone location sites. ETS shall notify [TK Industries] of their intention to purchase the aforementioned route within fifteen (15) days of the date of deposit or forfeit the deposit in full.” ETS Payphone did not notify TK Industries of its intent to purchase within the specified time, and TK Industries then forfeited the deposit. ETS Payphone subsequently filed suit for breach of contract, fraud and conversion against TK Industries and Kim Neill in Douglas County Superior Court.

1. ETS Payphone contends the trial court erred by dismissing the complaint, arguing that personal jurisdiction could be based on the breach of contract claim. The trial court properly found that it had no jurisdiction over TK Industries or Kim Neill with respect to the breach of contract claim. “In a breach of contract action . . . jurisdiction over a nonresident defendant may be exercised by the courts of this state only upon a showing that the nonresident defendant transacts any business in this state. OCGA § 9-10-91 (1). Jurisdiction over a nonresident exists on the basis of transacting business in this state only if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice. Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285) (1973).” (Punctuation omitted.) Flint v. Gust, 180 Ga. App. 904, 905 (1) (351 SE2d 95) (1986), rev’d on other grounds, Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987).

There is no evidence that TK Industries or Kim Neill negotiated the letter of intent in this state or otherwise transacted business here. Neill’s single visit to Georgia is insufficient to establish jurisdiction over either her or TK Industries. Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892 (1) (380 SE2d 303) (1989). Furthermore, it is undisputed that all of the negotiations for the letter of intent took place on the phone or via mail or fax. It is well settled that an out-of-state defendant will not be deemed to have engaged in purposeful business activity in this state on the basis of telephone or mail contact. Id. See Beverage Mgmt. Solutions v. Yankee Spirits, 218 Ga. App. 95 (1) (460 SE2d 564) (1995) (out-of-state negotiations which led to a signed contract were insufficient to establish purposeful activity); Commercial Food Specialties v. Quality Food Equip. Co., 176 Ga. App. 892 (338 SE2d 865) (1985) (no personal jurisdiction where the contact was based solely on telephone and mail communications); O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974) (defendant had not transacted any business within the state where transaction based on phone and mail orders).

2. The trial court also properly found that it had no jurisdiction over TK Industries or Kim Neill with respect to the tort claims. The applicable provision of the Long Arm Statute provides: “A court of this state may exercise personal jurisdiction over any nonresident . . . as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: ... (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.” OCGA § 9-10-91 (3).

The unrebutted affidavit of Kim Neill shows that TK Industries, a Florida corporation, has no agent in Georgia and is not authorized to do business in Georgia. Additionally, neither she nor TK Industries regularly conducts business in Georgia, derives substantial income from services rendered in Georgia or engages in a persistent course of conduct within Georgia. That evidence “clearly establish [es] that [TK Industries and Kim Neill] have done none of the acts set forth in OCGA § 9-10-91 which must be done in order to subject them to personal jurisdiction of a Georgia court. . . . The rule that controls is our statute, which requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where, as here, it is shown that no such acts were committed, there is no jurisdiction.” Gust v. Flint, 257 Ga. at 130.

Decided March 1, 1999

Glenville Haldi, for appellant.

Gorby & Reeves, Michael J. Gorby, for appellees.

3. TK Industries’ motion to dismiss the appeal is denied.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A99A0044.
    JONES v. THE STATE.
    (513 SE2d 254)
   Judge Harold R. Banke.

Ray A. Jones was convicted of the offenses of criminal trespass, pointing a gun at another, and possession of a firearm by a convicted felon. On appeal, Jones enumerates five errors.

The underlying case arose after a late night altercation involving Jones and his girlfriend, one of the victims. The next morning, Jones returned to his girlfriend’s home and kicked in the door after he was refused entry. After breaking the door down, Jones brandished a pistol, alternately pointing it at his girlfriend, her son, and a friend of the family. Although Jones threatened to shoot one of them if anyone attempted to call the police, the victim’s son managed to escape and jumped a fence to summon help. When the police arrived, the victims told police that Jones had just hidden the gun. After a brief search, Jones’ fully loaded pistol was recovered from under a couch. At trial, the State presented evidence establishing that Jones was a convicted felon. Held:

1. Jones contends that the evidence was insufficient to sustain his conviction for criminal trespass. He claims that the State failed to prove the amount of damage to the door and that the door belonged to his girlfriend’s son.

A person commits the offense of criminal trespass by intentionally damaging any property of another without consent and the damage is $500 or less. OCGA § 16-7-21 (a); Waldrop v. State, 231 Ga. App. 164, 166 (498 SE2d 337) (1998). Here, the testimony showed that when Jones kicked the door, the force from those blows damaged the door, breaking off the deadbolt lock and the metal chain and splitting the door itself. The members of the jury could draw from their own experiences in forming estimates of the value of the door, an everyday object. Matthews v. State, 224 Ga. App. 407, 409 (2) (481 SE2d 235) (1997); Mallory v. State, 164 Ga. App. 569, 570 (2) (298 SE2d 290) (1982).

Notwithstanding Jones’ claim to the contrary, the State did not have to prove the actual ownership of the door, only that the door belonged to someone other than Jones. OCGA § 16-7-21 (a). It is undisputed that Jones neither leased nor owned this home. Plainly, neither the girlfriend nor her son consented to Jones’ damaging the door and barging into the home at gunpoint. This evidence was sufficient to sustain Jones’ conviction for criminal trespass within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In three enumerations, Jones contends that the trial court erred in its jury charges on criminal trespass, pointing a firearm at another and possession of a firearm by a convicted felon.

Because Jones neither objected to these charges nor reserved his right to object, appellate review is procedurally foreclosed. Anderson v. State, 262 Ga. 331, 332 (2) (418 SE2d 39) (1992). Even assuming arguendo that the substantive error rule of OCGA § 5-5-24 (c) applied here, Jones failed to specify how he was harmed by the charges or how anything in these charges “ ‘seriously affected the fairness, integrity, and public reputation’” of the trial. Owens v. State, 263 Ga. 99, 101-102 (2) (428 SE2d 793) (1993).

To establish the count for possession of a firearm by a convicted felon, the State had to prove that Jones had a prior felony conviction. Jones’ counsel had told the jury that Jones had “a prior record” and was a convicted felon. The State, without objection, tendered a certified copy of Jones’ 1993 conviction for possession of a firearm by a convicted felon. This was not improper.

While charging the law on possession of a firearm by a convicted felon, the court apparently erred by stating that possession of cocaine is a felony, a crime not mentioned in the indictment. See Greenhill v. State, 199 Ga. App. 218, 222 (404 SE2d 577) (1991). Jones contends that the trial court compounded the error by failing to read the indictment and by not restricting the jury to consideration of the offenses listed in the indictment.

The record does not support Jones’ claim. In its preliminary instructions and in its final charge, the court explicitly informed the jury that Jones was being tried only for the three crimes charged in the indictment: pointing a gun at another, criminal trespass, and possession of a firearm by a convicted felon. The court expressly defined each count in detail. Although from the record before us, we cannot discern whether the jury was given a copy of the indictment, the verdict form provided to the jury plainly listed each of the three separate counts and the court properly instructed the jury on completion of that form. Having considered the charge as a whole and in view of the overwhelming evidence of Jones’ guilt, we do not find that reversal is warranted. Owens, 263 Ga. at 101-102 (2); Howard v. State, 202 Ga. App. 574, 576 (415 SE2d 45) (1992).

Decided March 1, 1999.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.

3. Jones asserts that his trial counsel was ineffective for failure to preserve the defectiveness of the jury charges for appeal and for failure to object when the State impermissibly injected his character into the case by eliciting testimony that Jones had been arrested for holding guns for a gang.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Anderson, 262 Ga. at 333 (5). Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

Here, we find no reasonable probability that the outcome of the trial would have been different had counsel objected to the detective’s testimony which insinuated Jones’ possible connection to a gang. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Because the trial court’s finding that Jones was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Judgment affirmed.

Beasley, P. J., and Blackburn, J., concur.

       Jones was indicted only for pointing a gun at the victim’s son.


text:
    A98A2140.
    QUEZADA v. THE STATE.
    (512 SE2d 401)
   Blackburn, Judge.

Luis Serrano Quezada appeals his conviction of trafficking in methamphetamine contending that the trial court erred in admitting evidence of a similar transaction and that the evidence was insufficient to support the verdict. For the reasons discussed below, we affirm Quezada’s conviction.

1. Quezada contends that the trial court erred in admitting evidence of a similar transaction because there was insufficient evidence to establish that he committed the similar transaction and that there was insufficient similarity between the previous act and the present crime charged.

“It is universally recognized on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible. However, if the evidence is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character, it is admissible even if it incidentally puts the defendant’s character in issue. To render evidence of another crime admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Williams v. State, [261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991)] and Uniform Superior Court Rule 31.3 additionally require the court to find that the evidence will be introduced for an appropriate purpose and not to raise an improper inference as to the accused’s character.” (Punctuation, emphasis, and footnotes omitted.) Evans v. State, 235 Ga. App. 577, 579 (510 SE2d 313) (1998). Additionally, the trial court’s determination regarding whether the extrinsic crime was sufficiently similar to the present crime charged will not be disturbed unless clearly erroneous. See id.

The State- proffered that, in the similar transaction case, Quezada was arrested while he waited in the passenger seat of a car with almost twenty-seven grams of methamphetamine and a small amount of marijuana at his feet, while another person went into a house in Cherokee County to sell approximately five pounds of marijuana. The State proffered that in the present case, Quezada was driven into Cherokee County where he went into a confidential informant’s house to sell methamphetamine where he was arrested for possession of methamphetamine with intent to distribute.

The State contends that the cases are very similar because in each case, another person drove Quezada to the “buy-bust” location. The State sought to submit the similar transaction evidence to show identity because when Quezada was arrested in the similar transaction case, he had his passport and resident alien card on his person. The State also submitted that the similar transaction showed a similar scheme, in that Quezada obtains large quantities of drugs and distributes them in Cherokee County. The trial court allowed the similar transaction evidence to be admitted stating that although there were some differences, there were also marked similarities. The trial court also noted that the evidence was not needed for identity but would be admissible to negate the possible defense of entrapment. The trial court stated if such issue was raised, it could be admitted in rebuttal. Therefore, as the trial court recognized, the similar transaction evidence was not properly admissible for rebuttal, absent an entrapment issue.

During the 31.3 (B) hearing the trial court did not state the purpose for which the similar transaction evidence was being allowed. The better practice is to specifically enumerate the basis for allowance of similar transaction evidence in order to enable the defendant to properly object to the allowance of such evidence. In its jury charge, the trial court stated that the similar transaction evidence was admissible to establish the identity and state of mind of the defendant. There was eyewitness identification of the defendant in this case. As the trial court stated in discussing a particular item of evidence, “you can use it in rebuttal if [defendant] makes an issue of it, but I don’t see the point of putting it in there unless he disputes the identification.” There was no proper identification issue in this case which would authorize similar transaction evidence.

The similar transaction evidence was properly admissible, however, to demonstrate Quezada’s state of mind at the time of the crime. Therefore, as there was a proper purpose for the admission of the similar transaction evidence, we need only look to whether it was sufficiently similar.

“The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic evidence is offered, e.g., where similar transaction evidence is offered to prove identity, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.” (Punctuation and emphasis omitted.) Mangham. v. State, 234 Ga. App. 567, 569 (1) (507 SE2d 806) (1998).

Upon Quezada’s timely request, the trial court properly gave a limiting instruction at the time the similar transaction was admitted and at the close of the case with the general charge. Cf. Turner v. State, 235 Ga. App. 331 (508 SE2d 786) (1998).

The proffer of evidence established that Quezada committed the similar transaction, in that he was in possession of twenty-seven grams of methamphetamine while an accomplice was conducting the sale of almost five pounds of marijuana. In the present case, Quezada was in possession of 282 grams of methamphetamine with the intent to distribute in the presence of an accomplice. On appeal, we focus on the similarities, rather than the differences between the similar transaction evidence and present charges. Based on the foregoing, therefore, the trial court was not clearly erroneous in admitting the similar transaction evidence.

Decided February 19, 1999

Reconsideration denied March 2, 1999.

Gregory A. Hicks, James K. Luttrell, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

2. In his second enumeration of error, Quezada contends that the evidence was insufficient to support the verdict. The State introduced evidence of tape-recorded telephone conversations between Quezada and the informant in which the drug purchase was arranged. These tape-recorded conversations were played for the jury. Deputy Jay Baker was in the informant’s house when Quezada arrived. Deputy Baker called for the back-up officers to enter when he heard Quezada and the informant arguing. Once the back-up officers entered, Deputy Baker heard the bathroom door slam and heard the informant yelling, “Flush it.” Deputy Baker found Quezada in the bathtub with a ziplock bag of methamphetamine.

Viewing the evidence in the light most favorable to the verdict we find that a rational trier of fact could have found Quezada guilty of possession of methamphetamine with intent to distribute beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Smith, Judge.

text:
    A98A1843, A98A1844.
    EICHELKRAUT et al. v. CAMP et al. (two cases).
    (513 SE2d 267)
   Smith, Judge.

The appeals in this case arise out of two rulings made by the trial court. Case No. A98A1843 addresses the issue of whether the trial court properly granted partial summary judgment to appellee Wayne Camp and others on the narrow issue of whether appellants Patricia Eichelkraut and Jack Nicholson breached a portion of a settlement agreement. In Case No. A98A1844, appellants enumerate as error the trial court’s refusal to disburse funds paid into court by Camp. We find no error, and we affirm.

Case No. A98A1843

1. As a result of previous litigation between Eichelkraut and Nicholson as plaintiffs and Wayne Camp and others as defendants, the parties entered into a settlement agreement. The agreement includes the following “non-disparagement” clause, which is the subject of this appeal: “The parties agree that henceforth they shall cease and refrain from making any disparaging or defamatory remarks or comments regarding one another, expressly or by implication, including but not limited to any parties’ personal or business dealings and reputations.”

After the parties executed the settlement agreement, Wayne Camp, among other plaintiffs (collectively referred to as “Camp”), instituted this action against Eichelkraut, Nicholson, and others, making several contentions, including the allegation that Eichelkraut and Nicholson breached the settlement agreement by sending three disparaging letters. Camp moved for partial summary judgment on the narrow issue of whether these letters constituted breach of the non-disparagement clause. The trial court granted the motion, and Eichelkraut and Nicholson appeal. Because we conclude that certain correspondence, admittedly authored by Eichelkraut and edited in part by Nicholson, constituted disparaging comments in violation of the settlement agreement, we affirm.

Eichelkraut authored and mailed a letter to a federal district court judge concerning a bankruptcy matter in which Camp served as trustee. The letter recited that Camp was being investigated by an assistant district attorney for insurance fraud, embezzlement, mail fraud, and racketeering and asked the judge, “Before this information is given to the press, shouldn’t you reconsider your choice of Trustee?” She also wrote and mailed a letter to the Georgia Society of Certified Public Accountants, stating in part as follows: “We are writing this letter to alert you to the blatant disregard of professional ethics exhibited by Wayne Camp and Dana Pilgrim, his daughter.” The letter went on to accuse Camp of ethical violations in the practice of accounting and stated that a criminal investigation was in progress. Nicholson reviewed a draft of the letter and made slight editorial changes. Finally, Eichelkraut authored and sent a letter to a journalist stating that Camp was under criminal investigation. Although the letters were anonymous, signed only as “concerned claimant,” “concerned citizens,” or “concerned professionals,” it is undisputed that Eichelkraut authored and sent them and that Nicholson reviewed the letter to the Society of Certified Public Accountants.

These letters, on their faces, were disparaging. In construing contracts, we are bound to ascribe to words “their usual and common signification.” OCGA § 13-2-2 (2). “The term, ‘disparagement,’ is defined in Webster’s Third New Intl. Dictionary (1961) as ‘diminution of esteem or standing and dignity; disgrace . . . , the expression of a low opinion of something; detraction.’ ” City Group v. Ehlers, 198 Ga. App. 709, 710 (1) (402 SE2d 787) (1991). See also Webster’s New Universal Unabridged Dictionary (2nd ed. 1983) (defining disparagement as “anything that detracts or discredits”). Unlike Ehlers, where we concluded that the words to which appellant objected were not disparaging as a matter of law, id., it is beyond cavil that the unprompted letters mailed by Eichelkraut and edited in part by Nicholson expressed “a low opinion” of Camp and served to diminish the esteem in which he was held.

Appellants maintain that “[t]he term ‘disparagement’ in the legal sense contemplates the making of a false statement in order to be actionable” and that because the statements made in the letters were true, they could not have been disparaging. We do not agree. It is true, as argued by appellants, that disparagement is identified as a form of slander or defamation under OCGA § 51-5-4 (a) (4). But this statutory definition of a tort does not dispense with the cardinal rule of contract construction that in interpreting contracts, we must ascertain the intent of the parties. OCGA § 13-2-3. We conclude that the agreement clearly reflects the parties’ intent that the non-disparagement clause applied to all derogatory communications, whether true or not. As noted by the trial court, the phrasing of the clause itself clearly contemplates a broad definition of the term “disparaging,” as it prohibits both “disparaging or defamatory remarks or comments.” (Emphasis supplied.) Moreover, the parties’ intent that the non-disparagement clause included even true statements is clear from the contract language prohibiting certain true statements. For example, in addition to the general prohibition against disparaging or defamatory comments, the clause prohibits statements that Eichelkraut and Nicholson were involuntarily terminated from employment. As aptly argued by Camp, the fact that Eichelkraut was involuntarily terminated does not appear to be disputed.

We note Eichelkraut’s affidavit reciting that the parties intended the settlement agreement to encompass only untrue statements. But this evidence of a parol agreement regarding the meaning of the contract is unavailing, given the unambiguous terms of the contract. “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it. Parol evidence is not admissible to contradict or construe an unambiguous contract.” (Citations and punctuation omitted.) Frank v. Fleet Finance, 227 Ga. App. 543, 546 (1) (b) (489 SE2d 523) (1997).

Appellants also argue that the statements made in the letters were privileged under OCGA § 51-5-7 (2) and (3). But as argued by Camp, the issue of privilege is irrelevant to this appeal, because privilege is a defense to the tort of defamation, not to a breach of contract action.

Finally, appellants argue that summary judgment was erroneously granted because Camp did not produce evidence of special damage as required by OCGA § 51-5-4 (b). This does not necessitate reversal. As argued by Camp, while evidence of special damages may be relevant to the torts of slander or defamation, see, e.g., Webster v. Wilkins, 217 Ga. App. 194, 196-197 (2) (456 SE2d 699) (1995), such evidence is not relevant to the issue in this appeal. The trial court entered a ruling only on the narrow issue of whether breach of the non-disparagement clause occurred. The court further “reserve [d] ruling as to any issues relating to damages for the alleged breach since proof must be made that any alleged loss [sustained by Camp] was the proximate result of the breach, and that issue is not before the court at this time.” We find no error in the trial court’s partial grant of summary judgment to Camp.

Case No. A98A1844

2. Appellants enumerate as error the trial court’s refusal to disburse funds paid into the court’s registry by Camp. Under the terms of the settlement agreement executed during the previous litigation, Camp agreed to pay appellants a substantial sum of money and executed promissory notes for a portion of the amounts owed. When Camp and the other plaintiffs instituted this action, he and the other plaintiffs filed an “application for deposit of funds with court” under OCGA § 9-11-67. This application recited that all payments to date had been made and that Camp was not in default under the promissory notes or security deeds securing payments under the notes but noted that two more payments remained under the terms of the notes. Camp sought to pay the sums due under the note into the court’s registry, arguing that if the complaint was meritorious, he was “entitled to retain and set off the amounts otherwise payable to defendants Nicholson and Eichelkraut pursuant to the settlement agreement and the note and security deeds.”

The trial court entered an order permitting Camp to deposit the payments with the clerk of court for deposit into the court’s registry. Appellants appeal from the trial court’s subsequent refusal to permit disbursement of the funds.

Although appellants contend that OCGA § 9-11-67 did not authorize payment of sums into the registry of the court, we need not reach the issue of the applicability of this statute. The broad powers given to trial courts by OCGA § 15-1-3 (4) to manage the cases over which they preside authorized the trial court to order the funds deposited into the registry. Under OCGA § 15-1-3 (4), every court has the power “[t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.” See Courtesy Leasing v. Christian, 266 Ga. 187 (465 SE2d 443) (1996) (court order directing funds paid into court pending resolution of plaintiff’s claims upheld under authority of OCGA § 15-1-3 (4)).

Here, Camp’s lawsuit made entitlement to the funds an issue. While appellants claimed entitlement to the funds as payments under the promissory notes and settlement agreement, under the allegations of his complaint, Camp may have been excused from further performance under the agreement by appellants’ breach. “[W]here a contract provides that there must be a tender of money or a performance of some obligation, the party bound to make the tender or perform the obligation may be relieved, and the tender and obligation held to have been waived, where the other party to the contract repudiates it, by act or word.” (Citations and punctuation omitted.) TMS Ins. Agency v. Mitchell, 208 Ga. App. 614, 615 (431 SE2d 391) (1993). Camp’s payment of the funds into court may be considered a good faith tender of disputed funds into court, pending resolution of his claims against appellants and their claims against him. Under the broad powers conferred on trial courts by OCGA § 15-1-3 (4), we find no abuse of the trial court’s discretion in permitting the funds to be deposited into court and in refusing to disburse the funds pending a final decision on the merits of the parties’ claims. See Courtesy Leasing, supra. Regardless of whether the trial court actually denied disbursement for this reason, a judgment right for any reason will be affirmed. See, e.g., Precise v. City of Rossville, 261 Ga. 210, 211 (403 SE2d 47) (1991).

Decided March 2, 1999.

Hartley, Rowe & Fowler, Joseph H. Fowler, Milbree F. Lankford, for appellants.

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jill A. Pryor, for appellees.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       The remainder of the non-disparagement clause states the following: “Without limiting the generality of the foregoing, the Camp Affiliates covenant: i) that they shall not state that Eichelkraut and Nicholson were involuntarily terminated from employment with Camp & Associates and CNE; ii) that they shall not state that Eichelkraut or Nicholson engaged in any alleged criminal conduct, particularly any claim of breaking, entering and/or theft upon or about the business premises of Camp & Associates and CNE (except upon questioning by any law enforcement agency or prosecutors in which event the Camp Affiliates shall additionally state that they are disinterested in pursuing any such criminal matters).”

       The application, filed October 23, 1995, recited that the note and security deed required plaintiffs to pay to Nicholson and Eichelkraut “the sum of $20,721.88 on November 1, 1995 and December 1, 1995, subject to applicable notice of default. Upon making such payments, plaintiffs’ financial obligations to Nicholson and Eichelkraut will be fully satisfied.”