author: Phipps, Judge.

text:
    A01A2205.
    ADDISON v. THE STATE.
    (564 SE2d 204)
   Phipps, Judge.

William Addison appeals his conviction of possession of a firearm by a convicted felon, contending that he was improperly tried on that charge before other more serious offenses and that the evidence was insufficient to support the verdict. He also contends that the trial court erred by admitting his in-custody statements, by admitting certain items into evidence, by charging the jury on voluntary intoxication, and by refusing to charge the jury on bare suspicion. Addison has shown no reversible error, and we affirm.

The evidence at trial showed that at about 10:00 p.m. on November 24, 1999, in response to a call about a domestic dispute between Addison and his girlfriend, law enforcement officers arrived at the apartment building where Addison lived with his sister. Addison’s girlfriend had left the apartment, leaving Addison alone there. After a standoff with law enforcement, Addison was forced out of the apartment unit when officers projected tear gas inside at about 10:00 a.m. on November 25. He was arrested. Officers then entered the apartment and recovered a semi-automatic rifle, a magazine that fit the rifle, and a bullet shell casing.

Louis Shepard, an investigator for the police department, interviewed Addison at about 11:45 a.m. on November 25. Shepard testified that during the interview, Addison admitted to having had a rifle the previous night. Addison also told Shepard that he had consumed “about a six-pack.”

Addison testified that he had consumed “about a 12-pack” from about 10:30 on the evening of November 24 until 10:00 a.m. the next day and that he was still “groggy” when he gave the statement. He went on to explain that the gun in the apartment was one he had borrowed for hunting.

1. Addison contends that the trial court erred in admitting his inculpatory in-custody statements to Shepard.

The trial court held a Jackson-Denno hearing to determine the admissibility of Addison’s statements. At the hearing, Shepard testified as follows. Before asking Addison any questions about the incident, he read Addison his Miranda rights. Addison did not appear to be under the influence of alcohol or drugs and seemed to understand the rights. He did not threaten Addison in any way, nor did he promise him anything in return for making a statement. Addison had signed a form stating that he waived his Miranda rights, although Shepard did not know what happened to the form. He then told Addison that he was going to ask him questions about the incident of the previous evening. The interview lasted “an hour, hour or two,” during which time Addison admitted that he had been in possession of a rifle that evening.

Addison, however, testified that no one advised him of his Miranda rights, that he did not sign any waiver of rights form, that he had become intoxicated the night before after consuming at least a six-pack of beer, and that he was “still dazed” , from the alcohol and from the tear gas on the morning of the interview.

The trial court determined that Addison’s statements were freely and voluntarily given and admitted the statements, A trial court’s factual findings and credibility determinations relating to the admissibility of a defendant’s statements at a Jackson-Denno hearing will be upheld on appeal unless clearly erroneous. The court was authorized to accept Shepard’s testimony and reject Addison’s. Considering the totality of the circumstances, the record supports the court’s determination that Addison’s statements were freely and voluntarily given, and thus, it is not clearly erroneous.

2. Addison contends that the trial court erred in admitting the rifle, the bullet shell casing, and the magazine with a shell casing, asserting there was no evidence that the items were recovered from inside the residence. But contrary to his assertion, Addison testified that he carried the rifle and the ammunition to a closet in the rear of the apartment, and a law enforcement officer testified that all three items were recovered from the back of Addison’s residence. This contention has no merit.

3. Addison contends that the evidence was insufficient to support the verdict. On appeal, this court views the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but determine only whether, under the standard of Jackson v. Virginia, the evidence is sufficient to support a verdict of guilt.

A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If two or more persons shared actual or constructive possession of the thing, possession is joint[,] and the jury would be authorized to convict if they should find, beyond a reasonable doubt, that the defendant had actual or constructive possession, either alone or jointly with others.

The prosecutor and defense counsel stipulated that Addison was a convicted felon. And Addison admitted that the gun found in the apartment where he was living was one he had borrowed for hunting. The jury was authorized to find Addison guilty beyond a reasonable doubt of possession of a firearm by a convicted felon.

4. Addison claims error under Head v. State. Head stands for the proposition that where a count charging possession of a firearm by a convicted felon is unrelated to any other count in the indictment, a bifurcation motion should be granted and the jury should first hear and determine the more serious charge, unaware of the pendency of the possession charge. A trial court has no obligation to bifurcate a trial, however, where the defendant does not so request. Because the record shows no motion to bifurcate, this claim of error is waived.

Furthermore, this case is distinguishable from Head, wherein an unbifurcated trial resulted in convictions for armed robbery and possession of a firearm by a convicted felon. Our Supreme Court reversed because the defendant’s prior convictions had “nothing to do with any element of the robbery charge, except the forbidden (albeit perhaps the most illuminating) realm of character and propensity for violent crimes.” Here, however, the State proceeded to trial only on the charge of possession of a firearm by a convicted felon (Count 4), although the grand jury had also charged him with battery against his girlfriend (Count 1), making terroristic threats to his girlfriend (Count 2), making terroristic treats to law enforcement officers (Count 3), and possession of a gun during the commission of a crime (Count 5). Apparently, Count 4 was severed from the remaining counts and tried first, although the remaining counts could have been tried before another jury. The record reveals that the trial court granted the prosecution’s motion to enter nolle prosequi as to Counts 3 and 5 and that after the close of evidence on the second day of Addison’s trial, he pled guilty to Counts 1 and 2. To the extent Addison was not afforded Head’s procedural safeguards against the prejudice inherent in the admission of evidence of a defendant’s prior criminal record, he has shown no harm. In fact, rather than objecting to the admission of evidence of his prior criminal record, Addison stipulated that he was a convicted felon. An asserted error induced by the defendant furnishes no ground for reversal.

Under the circumstances presented by this case, Addison has shown no reversible error in the trial of the possession count prior to disposition of the more serious charges.

5. Addison contends that the trial court erred in charging the jury on voluntary intoxication, arguing that he did not attempt to use it as a defense and there was no basis for so charging the jury. The evidence showed that during the night of November 24, Addison consumed from “about a six pack” to “about a twelve pack” of beer, and he testified that he was “still a little groggy” from the alcohol the next morning. This evidence authorized the trial court’s charge on voluntary intoxication.

6. Addison contends that the trial court erred in refusing to charge the jury on bare suspicion. The trial evidence raised more than a bare suspicion of Addison’s guilt. It showed that Addison had borrowed the rifle that was found in his residence and that he handled the rifle during the night of November 24. The record also shows that the trial court charged the jury on the presumption of innocence and reasonable doubt. The trial court did not err.

Decided March 20, 2002.

William L. Jones, for appellant.

Peter J. Skandalakis, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Mosely v. State, 250 Ga. App. 892 (553 SE2d 197) (2001); Scott v. State, 240 Ga. App. 50, 51 (2) (522 SE2d 535.) (1999).

       See Mosely, supra; Scott, supra.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Cowan v. State, 243 Ga. App. 388 (1) (531 SE2d 785) (2000).

       (Citations and punctuation omitted.) Gravitt v. State, 172 Ga. App. 861, 863 (1) (324 SE2d 803) (1984).

        Jackson v. Virginia, supra; OCGA § 16-11-131; Gravitt, supra.

       253 Ga. 429 (322 SE2d 228) (1984).

       Id. at 431-432 (3) (a).

        Temple v. State, 253 Ga. App. 606, 609 (2) (a) (561 SE2d 132) (2002); Belt v. State, 225 Ga. App. 813, 814 (2) (a) (485 SE2d 39) (1997).

       See Belt, supra.

        Head, supra at 431 (2).

        Brison v. State, 248 Ga. App. 168, 169 (3) (545 SE2d 345) (2001).

        See Hamilton v. State, 179 Ga. App. 434, 436-437 (6) (346 SE2d 881) (1986).

       See Hodo v. State, 272 Ga. 272, 275-276 (6) (528 SE2d 250) (2000).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0455.
    BURKE v. KING.
    (562 SE2d 271)
   Johnson, Presiding Judge.

In this custody dispute, Bennett Burke, the father of 18-year-old M. B. and 14-year-old B. B., challenges the trial court’s award of cus - tody to Yvonne King, the children’s maternal aunt. We granted the father’s discretionary application to determine whether the trial court applied the correct standards of law in rendering its decision. Because the trial court’s orders fail to find that parental custody in Burke would harm B. B., we reverse the grant of custody to King and remand the case for the trial court to consider the issues consistent with our opinion.

When Bennett Burke and Deborah Burke divorced in December 1996, Deborah Burke obtained custody of the couple’s two minor children, then ages fourteen and ten. After the divorce, Bennett Burke regularly paid $200 per week in child support and telephoned the children every two or three days, but visited them only sporadically. He was then living in Tennessee and visited the children about ten to twenty times over the next three and a half years. On June 14, 2000, Deborah Burke died, six weeks after discovering that she had cancer. King, Deborah Burke’s sister, helped care for her and the two children when her death became imminent. It was Deborah Burke’s “last dying wish” that the children go to her sister. After her death, the children took up residency at King’s house. When Bennett Burke sought to be reunited with his children, King said that she did not make them go.

On June 29, 2000, Burke, then a resident of Tennessee, filed a petition for a writ of habeas corpus in the Superior Court of Catoosa County alleging that King was illegally detaining his children. King filed an answer to the writ. A hearing was scheduled, and on the day of the hearing King filed a petition seeking custody. After this hearing, the trial court entered an order granting temporary custody to King. Nearly six months later, the trial court held a second hearing on Kang’s petition for custody. By that time, M. B. was no longer a minor, and she and her younger brother had been living continuously and exclusively with King. Subsequently, the trial court issued a final order that awarded King the sole legal and physical custody of B. B. The order noted: “[t]he Court makes no finding that the Defendant is unfit, but finds that it is in the best interest of [B. B.] that custody be awarded to the Plaintiff, pursuant to the O.C.G.A. § 19-9-2.”

After Burke unsuccessfully moved for reconsideration, the trial court, without hearing any further evidence, entered a second order containing additional findings. In this order, the trial court found that “the father has failed to maintain reasonable contact with the child” and that B. B. “has developed a close, strong familial bond with [King]. . . .” The trial court also found that Burke physically abused Deborah Burke and M. B. in the presence of B. B. and verbally abused B. B. over the telephone. The order continues:

The Court further finds that the Plaintiff has overcome the statutory presumption of parental custody in that by clear and convincing evidence, Plaintiff has shown that the child will suffer psychological and emotional harm if custody is granted to the Defendant — Father. The Court also finds by clear and convincing evidence that a grant of custody to petitioner will best promote the child’s welfare and happiness and therefore it is in the best interest of this child that custody be vested in Petitioner.

In 1996, the Georgia General Assembly enacted the parent-third party custody statute. This statute governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including, as here, a maternal aunt. The statute “establishes a rebuttable presumption that parental custody is always in the child’s best interest, thus favoring the biological parent over the third party.” Implicit in this statute are three presumptions: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent. To overcome the statutory presumption in favor of parental custody, the third-party relative “must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent. Once this showing is made, the third party must then show that an award of custody to him or her will best promote the child’s welfare and happiness.”

The Supreme Court of Georgia has defined harm to mean “either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantage.” In addition, the Supreme Court noted that while the death of a parent, divorce, or a change in home and school will often be difficult for a child, some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.

In the present case, the record is devoid of any evidence showing that B. B. would sustain any physical harm. Nor was a finding made that the minor would suffer significant, long-term emotional harm. During the period between his mother’s death in June and the December hearing, B. B. acknowledged that his father had tried to visit with him, but that he chose not to be with his father. B. B. had spoken with his father four or five times “but every time I end up like hanging up crying or something.” But no explanation was forthcoming as to precisely what had upset the minor during each of those calls. Notwithstanding the trial court’s finding of emotional abuse “over the telephone,” such conduct apparently consisted of Burke’s injudicious or intemperate comparisons between Deborah Burke and his present wife. According to B. B., his father “puts down my mom.”

We note that this case presents a difficult situation for the trial court and all the parties involved. According to the record, Burke has made efforts to be a good father. His multiple telephone calls went unreturned, and the terms for visitation as set forth in the divorce decree were completely disregarded by King after the death of Deborah Burke. Moreover, it is undisputed that Burke and his wife uprooted themselves from Tennessee and purchased a home in Catoosa County to enable B. B. to continue to attend the same high school and to be near his friends. On the other hand, the minor at issue is 14 years old, and both he and his maternal aunt are attempting to comply with the “last dying wish” of B. B.’s mother that he remain with his maternal aunt. Although a last dying wish is not controlling, it has muddled the issues in this case.

Examining the trial court’s orders in light of OCGA § 19-7-1 (b.l) and Clark v. Wade, it is clear that the trial court’s findings do not satisfy the requisites necessary to award custody of a minor to a third party rather than a biological parent. The first order makes no finding whatsoever that Burke is an unfit parent and explicitly declines to do so. The only mention of harm to B. B. is verbal abuse over the telephone, but there is no mention of the type or severity of the verbal abuse. And, the second and final order makes a conclusory statement that the minor will suffer psychological and emotional harm if custody is granted to Burke. The order then states that a grant of custody to Kang will best promote the minor’s welfare and happiness, and therefore it is in the best interest of this minor that custody be vested in King. In essence, the trial court commingled different theories of law without substantiating either with explicit findings of fact.

While the trial court’s order does find that B. B. “will suffer psychological and emotional harm,” the order does not find that B. B. will undergo “significant, long-term emotional harm.” And, as the Supreme Court noted, after the death of a parent, “some level of stress and discomfort may be warranted when the goal is reunification of the child with the [surviving] parent.” The trial court’s order is silent as to whether the anticipated psychological harm would be attributable to the inherent stress of reunification or would be attributable to some type of emotional abuse inflicted by Burke.

In light of the inconsistency between the two orders, the absence of any finding of Burke’s parental unfitness, and the absence of a finding supported by specific facts that establish by clear and convincing evidence that B. B. will suffer physical harm or significant, long-term emotional harm, we must find that the trial court abused its discretion in awarding custody to King. We remand the case with direction that the trial court determine upon a clear and convincing evidence standard whether parental custody in Burke would harm B. B., as that word has been defined in Clark v. Wade, and, if so, whether an award of custody to King would be in B. B.’s best interest. If the trial court determines that custody should be awarded to King, the trial court should then delineate Burke’s visitation rights.

Judgment reversed and case remanded.

Blackburn, C. J, and Miller, J., concur.

Decided March 20, 2002.

Larry B. Hill, for appellant.

John M. Giglio, for appellee.

       Since M. B. is 18 years old, she is no longer at issue in this case.

       The sole evidence of any physical abuse occurred during an isolated incident in late November 1996, when Deborah and Bennett Burke engaged in a physical struggle over some savings bonds that were inside the family safe. The divorce decree, entered a few days later, would award these bonds to Bennett Burke, who apparently had opened the safe to retrieve them when he was suddenly confronted by his angry wife.

       OCGA § 19-7-1 (b.l).

        Clark v. Wade, 273 Ga. 587, 590 (II) (544 SE2d 99) (2001).

       Id. at 593.

       Id. at 599 (V).

       Id. at 598 (IV).

       Id.

       Id.

       See Grantham v. Grantham, 269 Ga. 413, 414 (499 SE2d 67) (1998).

        Clark, 273 Ga. at 598 (IV).

       See Stalvey v. Bates, 251 Ga. App. 895 (555 SE2d 477) (2001).


author: Ellington, Judge.

text:
    A02A0236.
    SMITH et al. v. MORRIS, MANNING & MARTIN, LLP et al.
    (562 SE2d 725)
   Ellington, Judge.

Plaintiffs David Smith, Premier/Georgia Management Company, Inc., Chase Development Corporation, and American Investment Management Corporation appeal from the trial court’s dismissal of their suit against the law firm of Morris, Manning & Martin, LLP and three of the firm’s employees. For the reasons that follow, we affirm the dismissal of the plaintiffs’ legal malpractice claims, but reverse the dismissal of the remaining claims and remand the case to the trial court for further proceedings.

The record shows the following undisputed facts. Attorney James N. Cline represented the plaintiffs when they filed a legal malpractice claim against the defendants in December 1998. The defendants filed a motion to dismiss, and the plaintiffs voluntarily dismissed the complaint without prejudice. See OCGA § 9-11-41 (a).

On July 13, 1999, Cline, on behalf of the plaintiffs, again filed a legal malpractice complaint against the defendants under the renewal statute. See OCGA § 9-11-41 (e). The complaint did not contain an expert affidavit. See OCGA § 9-11-9.1 (a). The defendants again moved to dismiss for failure to state a claim based upon the plaintiffs’ failure to attach an expert affidavit. The plaintiffs voluntarily dismissed this second complaint on February 3, 2000, four days before the hearing on the defendants’ motion.

On July 14, 2000, the plaintiffs, still represented by Cline, filed the instant complaint under the renewal statute and again failed to include an expert affidavit. After the defendants filed another motion to dismiss for failure to state a claim, plaintiffs substituted attorney Graydon W. Florence for Cline. Florence then filed an expert affidavit on August 28, 2000, 45 days after the complaint was filed. The affidavit was signed by James N. Cline, the same attorney who had been representing the plaintiffs for five years and who had twice failed to file an expert affidavit with the complaint. Defendants moved to exclude Cline’s affidavit as untimely, because the plaintiffs failed to allege in the complaint that, because the statute of limitation was about to run, the expert affidavit could not be prepared. See OCGA § 9-11-9.1 (b). This language is required to provide for a 45-day grace period for filing an expert affidavit.

On September 14, 2000, Florence amended the complaint to add Paragraph 157, which reads as follows:

The period of limitation either will expire or there is a good faith basis to believe it will expire within ten days of the filing of this verified complaint and, because of such time constraints, the plaintiffs allege that the affidavit of an expert as to the legal malpractice counts contained herein could not be prepared in time to be contemporaneously filed with the verified complaint.

The amendment also added several counts to the complaint, including slander, libel, tortious interference, breach of fiduciary duty, and breach of contract. Not surprisingly, the defendants moved to strike Paragraph 157 of the amended complaint on the basis that there was “no set of facts which Plaintiffs could plead which could support their allegation,” i.e., that there had been insufficient time to prepare an affidavit due to the expiration of the statute of limitation.

After conducting a hearing on the defendants’ motion to strike Paragraph 157 and the related motion to dismiss for failure to state a claim, the trial court found that plaintiffs’ counsel, Cline, had known for several years about the plaintiffs’ allegations of legal malpractice and was so knowledgeable about the facts underlying the allegations that he drafted an extensively detailed, 50-page complaint. Further, even though Cline was aware that the defendants had previously moved to dismiss the complaint on the basis that no OCGA § 9-11-9.1 expert affidavit had been filed with the complaint, he twice failed to file the requisite affidavit or invoke the subsection (b) provision. The trial court found that there was “overwhelming evidence of bad faith on the part of the Plaintiffs and/or Plaintiffs’ counsel.” Under the “egregious” circumstances of this case, the trial court ruled that “[t]o allow Plaintiffs to proceed with their third attempt at this case would make a mockery of this Court and the purpose of Code section 9-11-9.1.” After finding Paragraph 157 to be a “patently false and sham pleading,” the trial court granted the motion to strike the paragraph, as well as the motion to dismiss the complaint. The plaintiffs appeal from this ruling.

1. The plaintiffs contend the trial court erred in striking Paragraph 157 from the complaint, arguing that the 45-day extension provided by OCGA § 9-11-9.1 (b) is “automatic” once the requisite allegations are made and that the trial court is precluded from considering the veracity of the allegations. The plaintiffs rely on two prior opinions from this Court, neither of which is binding precedent in this case. See Court of Appeals Rule 33 (a); State v. Smith, 242 Ga. App. 295, 296 (529 SE2d 423) (2000) (holding that a previous Court of Appeals opinion in which less than a majority of the Court concurred fully merely decided the issues in that case and was not binding precedent).

In Works v. Aupont, 219 Ga. App. 577, 578 (465 SE2d 717) (1995), only three of the nine judges then on this Court joined fully in that portion of the opinion stating that a trial court cannot question the truthfulness of a plaintiff’s excuse for failure to comply with OCGA § 9-11-9.1 (a). In Works, the trial court had dismissed a malpractice complaint because it did not believe the plaintiffs were unable to acquire an expert affidavit before the statute of limitation expired. Id. at 577. According to Works,

OCGA § 9-11-9.1 (b) unambiguously provides for an automatic 45-day extension for filing the requisite affidavit to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. If these two conditions are met, it does not matter whether the trial court believes or disbelieves a plaintiff’s allegation that time constraints prevented compliance with the contemporaneous filing requirement of OCGA § 9-11-9.1 (a).

(Citations, punctuation and emphasis omitted.) Id. at 578 (1). This analysis was rejected, however, by the remaining six judges. Consequently, we are not bound by it. Court of Appeals Rule 33 (a).

Rather, we agree with Judge Beasley, who wrote in her special concurrence in Works as follows:

If the legislature meant that the required allegation could not be challenged, it would have used a word other than “alleged,” as that means a statement subject to challenge [instead of] “stated; recited; claimed; asserted; [or] charged.” Also, if it meant the allegation insulated the 45-day extension, then it has no meaning and that factor might just as well have been left out of the statute. There would be a forty-five-day extension whenever the statute of limitation expires within ten days of the filing of the complaint. We are compelled to attribute meaning to all parts of a statute. Secondly, judicially according unassailable conclusiveness to the allegation shields possible untruth from both consequence and sanction, . . . and I cannot attribute such intention to the legislature, more so because it relates to an allegation of an officer of the court rather than to that of a complaining party. Such an officer has a higher duty than does a non-verifying complainant, although “honesty and good faith” [are] requirement [s] of pleading which applfy] to the latter as well.

(Citations omitted.) Id. at 580 (Beasley, C. J., concurring specially). We adopt Judge Beasley’s conclusion that a trial court has both the authority and the duty to look behind an OCGA § 9-11-9.1 (b) allegation when it is challenged to ensure that it is supported by some evidence.

In this case, the trial court’s determination that Paragraph 157 was patently false and a sham pleading is amply supported by the record, which “clearly shows that time constraints did not prevent the affidavit from being filed with the complaint. [Counsel’s] statement to the contrary violates [his] duty as [an attorney] practicing in this State to employ ‘such means only as are consistent with truth.’ OCGA § 15-19-4 (2).” Works, 219 Ga. App. at 583 (Andrews, J., dissenting). We reject the premise that the requisites of OCGA § 9-11-9.1 may be satisfied through deceit. See id.

Under OCGA § 9-11-12 (f), the trial court has considerable discretion to strike from any pleading “any redundant, immaterial, impertinent, or scandalous matter.” See All-Ga. Dev. v. Kadis, 178 Ga. App. 37, 38-39 (2) (341 SE2d 885) (1986); see also Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 131 FSupp.2d 446, 450 (S.D.N.Y. 2001) (motion to strike is appropriate when there is no evidence to support the allegation). Under the circumstances of this case, we hold that the trial court did not abuse its discretion in striking the OCGA § 9-11-9.1 (b) allegations in Paragraph 157 from the amended complaint.

Decided March 6, 2002

Reconsideration denied March 21, 2002

Gray don W. Florence, Jr., for appellants.

2. Absent the requisite allegations of OCGA § 9-11-9.1 (b), the plaintiffs were not entitled to a 45-day grace period for filing the expert affidavit. These allegations are not a simple technicality, but represent facts that are a “necessary ingredient for the applicability of the grace period.” (Citation and punctuation omitted.) Sullivan v. Fredericks, 251 Ga. App. 790, 791 (554 SE2d 809) (2001).

3. As the expert affidavit was not timely filed with the complaint pursuant to OCGA § 9-11-9.1 (a), the trial court did not err in dismissing the plaintiffs’ legal malpractice complaint for failure to state a claim. OCGA § 9-11-12 (b) (6).

4. The plaintiffs contend, however, that even if the malpractice claims were properly dismissed, the trial court erred in dismissing the additional counts from the amended complaint, which included slander, libel, tortious interference, breach of fiduciary duty, and breach of contract. Assuming without deciding that the complaint was properly amended to include these additional counts and that these counts allege something other than professional negligence, which would require an expert affidavit under OCGA § 9-11-9.1, we hold that the trial court erred in dismissing the counts due to plaintiffs’ failure to file an expert affidavit on the malpractice claim. Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 755 (2) (533 SE2d 749) (2000); Hopkinson v. Labovitz, 231 Ga. App. 557, 559 (499 SE2d 338) (1998) (physical precedent only). In so holding, we do not consider whether the counts could have been dismissed on another basis, such as the expiration of the statute of limitation. We reverse the dismissal of these counts and remand the case to the trial court for further proceedings.

Judgment affirmed in part, reversed in part and case remanded.

Smith, P. J., and Eldridge, J., concur.

Seyfarth Shaw, Victor A. Ellis, Brian E. Daughdrill, John A. Sherrill, for appellees.

       It does not appear that Florence used a notary seal when he attempted to notarize Cline’s affidavit. See OCGA § 45-17-6 (a). Pursuant to our decision in Division 3, infra, however, it is not necessary for this Court to decide if Cline’s affidavit, as it appears in the record, is valid.

       Under OCGA § 9-11-9.1 (b),
      [t]he contemporaneous filing requirement of [OCGA § 9-11-9.1 (a)] shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.

       In the second case upon which plaintiffs rely, Keefe v. Northside Hosp., 219 Ga. App. 875-876 (467 SE2d 9) (1996), this Court affirmed the trial court’s dismissal of a medical malpractice complaint for the plaintiff’s failure to timely file an expert affidavit and failure to include an OCGA § 9-11-9.1 (b) allegation. While holding that the subsection (b) allegation is not “mere verbiage but rather [a] representation of a fact. . . which is a necessary ingredient for the applicability of the grace period,” this Court went on to note that, under Works, the allegation was not subject to challenge if the affidavit is actually filed within the 45-day period. Id. at 876. Since no OCGA § 9-11-9.1 (b) allegation had been filed in Keefe, however, this statement was dicta of which we now expressly disapprove.

       Under OCGA § 15-19-4 (2), “[fit is the duty of attorneys at law . . . [t]o employ, for the purpose of maintaining the causes confided to them, such means only as are consistent with truth and never to seek to mislead the judges or juries by any artifice or false statement of the law.”


text:
    A02A0290.
    HIPES & NORTON, P.C. v. PYE AUTOMOBILE SALES OF CHATTANOOGA, INC. et al.
    (562 SE2d 729)
   Ellington, Judge.

We granted Hipes & Norton, P.C. an interlocutory appeal to review whether the trial court erred in denying its motion for summary judgment on its suit on account against Pye Automobile Sales of Chattanooga, Inc., Pye Buick-Oldsmobile, Inc., Pyco Reinsurance, Ltd., Pye Nissan, Inc., Pye Motor Company, and Pye Automobile Sales, Inc. (collectively “the companies”). For the reasons which follow, Hipes & Norton is entitled to summary judgment. Consequently, we reverse the trial court’s order and remand.

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); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To prevail on a motion for summary judgment, a plaintiff-movant must produce evidence the defenses pleaded by the defendant are insufficient as a matter of law. Hurston v. Dealers Svc. Plan, 141 Ga. App. 148 (2) (232 SE2d 641) (1977). “Where a plaintiff files a motion for summary judgment, and evidence is offered on the issue, if the plaintiff establishes a prima facie right to summary judgment, a defendant may not rest upon conclusory allegations or defenses in his pleadings, but must come forward with facts showing a genuine issue remains for trial.” (Citations and punctuation omitted.) Electrical Distrib. v. Turner Constr. Co., 196 Ga. App. 359, 361 (1) (395 SE2d 879) (1990). In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Birnbrey, Minsk & Minsk v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000).

Viewed in a light favorable to the companies, the evidence shows the following. L. F. Pye, Jr. retained local counsel, Gregory H. Kin-namon, to handle a complex commercial litigation case for his six automobile sales companies. After the case was removed to federal court and became too time-consuming for Kxnnamon to handle alone, Kinnamon recommended that the companies retain Albert L. Norton, Jr. of the law firm of Hipes & Norton as co-counsel in the case. Norton had successfully handled an earlier matter for Pye on a contingency fee basis, and Pye again wanted a contingency fee arrangement.

Pye met with Norton, who told Pye that his firm would take the case, but would do so only on an hourly fee basis. On February 29, 2000, Norton mailed a copy of the firm’s standard hourly fee agreement to Pye for his signature. The letter agreement stated the firm’s hourly billing rates, provided that other attorneys and paralegals in the firm might work on the matter, and provided that there was no cap on the firm’s fees. Pye agreed to sign the letter, and Hipes & Norton entered an appearance on behalf of the companies. Before signing the agreement, Pye added the following language: “* THIS AGREEMENT IS GOOD FOR THE FIRST 30 DAYS ONLY. [ALBERT NORTON] AND I AGREED TO RENEGOTIATE AFTER THE FIRST MONTH’S BILLING.” On March 3, 2000, Pye faxed the altered contract to Norton.

On March 7, 2000, Norton wrote Pye back to explain that the additional language was unacceptable and that Pye would be required to sign the letter agreement without any changes if the firm was going to continue to represent him and his companies. Within a few days, Pye signed and returned the agreement in its original form.

Hipes & Norton continued work on the matter and sent Pye bills approximately once a month. After four or five bills, covering about five months work, Pye complained about the amount of the bills and about lawyers other than Norton working on the case. Norton agreed to write off $5,000 of the amount owed. Pye continued to be dissatisfied with Hipes & Norton’s bills and representation and, after several more weeks, terminated the agreement and retained new counsel. The companies refused to arbitrate the amount of the fees before the State Bar, as the law firm offered to do.

On January 29, 2001, Hipes & Norton filed a suit on account for payment of the outstanding legal fees and costs. After the companies answered, Hipes & Norton moved for summary judgment, attaching the fee bills, the letter agreement, an affidavit of Albert Norton, and various e-mails and memoranda. The companies supported their response to the motion for summary judgment with Pye’s affidavit in which Pye deposed that Norton initially told him the fees would probably not exceed $6,250 per month and that the total projected legal fees would probably not exceed $75,000. The companies argued that, after they paid almost $80,000 in fees, Hipes & Norton “left the case in no better shape than when it was received. ... A jury should be allowed to consider whether or not [Hipes & Norton’s] claims are meritorious and that [its] billing is genuine.” The trial court denied Hipes & Norton’s motion for summary judgment on the basis that it appeared “there may be issues of fact for determination with regard to reasonableness and the amount of attorney’s fees sought to be recovered.”

Hipes & Norton correctly contends that this case is controlled by this Court’s decision in Lipton v. Warner, Mayoue & Bates, P.C., 228 Ga. App. 516 (492 SE2d 281) (1997). In that case, as here, the client accepted the services of the law firm and the law firm submitted regular fee bills to the client, detailing the date services were provided, the task performed and by whom, and the time spent. Id. at 517. As in Lipton, the client initially paid the bills in full, then asserted that the law firm had been paid enough for the services provided, and refused to pay any more for services already accepted. Id.

As in any suit on account for services rendered, after a lawyer presents evidence of the terms of the contract, the services provided and accepted, and the amount left unpaid, the burden in opposing summary judgment shifts to the client to point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e); William J. Cooney, P.C. v. Rowland, 240 Ga. App. 703 (524 SE2d 730) (1999) (contract law applies to suits on account for legal services); Lipton v. Warner, Mayoue &c., 228 Ga. App. at 518 (1). Here, the letter agreement executed by the companies expressly stated that the amount of fees could not be predicted with any accuracy and that there was no cap on the fees that could be charged. See Lipton v. Warner, Mayoue &c., 228 Ga. App. at 517 (summary judgment appropriate even in absence of written agreement). Not only did the companies fail to point to any evidence of inaccurate charges, the companies failed even to identify a single specific charge which they suspected to be inaccurate or inflated; thus, contrary to the trial court’s order, the companies failed to raise a factual issue “as to the amount of attorney’s fees sought to be recovered.” See id. at 517. Finally, the companies pointed to no evidence that the fees charged in accordance with the contract were unreasonable. The companies relied entirely on Pye’s self-serving and conclusory affidavit. A “self-serving conclusory affidavit not supported by fact or circumstances is insufficient to raise a genuine issue of material fact.” (Citation and punctuation omitted.) Id.

Decided March 6, 2002

Reconsideration denied March 21,2002.

Moore, Ingram, Johnson & Steele, Jere C. Smith, Bart W. Reed, for appellant.

McDonald, Kinnamon & Thames, Gregory H. Kinnamon, for appellees.

Because the companies failed to carry their burden in opposing summary judgment, the superior court erred in denying Hipes & Norton’s motion for summary judgment. Lipton v. Warner, Mayoue &c., 228 Ga. App. at 518 (1); Electrical Distrib. v. Turner Constr. Co., 196 Ga. App. at 361 (1). Accordingly, the judgment is reversed and the case is remanded for entry of judgment in favor of Hipes & Norton.

Judgment reversed and case remanded with direction.

Smith, P. J., and Eldridge, J., concur.

       See Antinoro v. Browner, 223 Ga. App. 664, 665-666 (1) (478 SE2d 392) (1996) (describing the Arbitration of Fee Disputes program of the State Bar of Georgia).

       We note that the signatories to the hourly fee legal services contract with Hipes & Norton were “Johnny F. Pye, Jr., individually and for Pyco Reinsurance, Ltd., Pye Nissan, Inc., Pye Motor Company, and Pye Automobile Sales, Inc.” Hipes & Norton filed suit against the four companies listed as signatories, plus Pye Automobile Sales of Chattanooga, Inc. and Pye Buick-Oldsmobile, Inc. The six corporate defendants answered collectively, admitting “that they retained ALBERT L. NORTON, JR. for legal representation” and agreed “to pay legal fees and certain reimbursement of expenses on account,” without distinguishing between those who signed the contract and those who did not. Accordingly, by judicial admission, all six companies are jointly liable on the account. Davis & Shulman, Ga. Practice & Procedure, § 10-9 (1999 ed.).


author: Barnes, Judge.

text:
    A01A1874.
    SIMMONS v. MABLETON FINANCE COMPANY et al.
    (562 SE2d 794)
   Barnes, Judge.

Shana Simmons sued Mableton Finance Company and Bernadette Hicks for false arrest and malicious prosecution after she was arrested for armed robbery and kidnapping, but the police decided not to pursue the charges. The defendants answered, denying Simmons’ allegations, and alleged in counterclaims that Simmons was the person who robbed them and that they were entitled to damages. The defendants then moved for summary judgment on Simmons’ claims against them, which the trial court granted, finding that probable cause existed for Simmons’ arrest. The finance company dismissed its counterclaim, while Hicks’ counterclaim against Simmons apparently remains pending. Simmons appeals. We affirm the trial court’s grant of summary judgment on Simmons’ malicious prosecution claim, but for the reasons that follow, we reverse the grant of summary judgment on her false arrest claim.

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

Viewed in that light, the evidence shows that on December 12, 1997, Simmons called Mableton Finance regarding a loan, and an employee filled out the top half of a loan form with information Simmons gave over the phone. On December 24, 1997, a masked male and an unmasked female robbed Mableton Finance employees Wilhelmina Hampton, Hicks, and Alan Bacon at gunpoint, stealing approximately $1,800 cash according to Hicks’ counterclaim.

On January 21, 1998, Simmons came to Mableton Finance and completed her loan application, which Hampton signed. While Hampton testified that her signature was on Simmons’ loan application, she did not remember waiting on her. However, Simmons testified that Hampton did wait on her, and the two spoke about having attended the same high school at the same time. More than three months later, on May 7, 1998, Simmons returned to Mableton Finance to secure another loan. Hicks waited on her and then reported to Bacon that she recognized Simmons as the robber. Bacon called the finance company owner, who called Hicks and advised her to call the police. Hicks told the police that Simmons was the female robber from December 1997. Bacon gave the police a copy of Simmons’ driver’s license.

The investigating detective testified that she was concerned about why someone who robbed an office would return less than a month later to fill out a loan application and questioned Hicks specifically regarding that point. According to the officer, in response to a direct question, Hicks said that no one who waited on Simmons in January 1998 was present during the robbery on December 24, 1997. Because of this statement, the detective did not further investigate the circumstances surrounding Simmons’ January 1998 visit to Mableton Finance. She testified, however, that if she had known an employee was present at both the robbery and the January loan interview, her "investigation would have in fact gone straight toward that person.” Hicks disputed the officer’s account of this conversation, testifying that she told the detective that no one who was present during the May 1998 loan interview was present during the robbery, although she also testified that she knew Hampton was in the office when Simmons came in on January 21, 1998.

Simmons was arrested for armed robbery and kidnapping and held for three days before being released. The detective released Simmons and dismissed the charges after Hampton failed to identify Simmons as the robber during a photographic lineup, and Simmons produced an alibi for December 24,1997. In her deposition, Hampton testified that she and Simmons went to the same high school, that she remembered Simmons’ face, and that Simmons was not the woman who robbed the finance company. While Hampton testified in deposition that she did not remember waiting on Simmons January 21, 1998, her signature was on the form Simmons completed on that date, and Simmons remembered Hampton waiting on her. Further, Bacon testified that Hampton’s signature on the form meant that Hampton had taken the information from Simmons.

Simmons sued Hicks for false arrest and malicious prosecution, and Mableton Finance under the theory of respondeat superior, but did not sue Bacon.

1. The trial court granted total summary judgment to the defendants, analyzing Simmons’ false arrest claim but not her malicious prosecution claim. Simmons does not argue on appeal that the trial court erred in granting summary jjidgment to the defendants on her malicious prosecution claim, and therefore we affirm that portion of the trial court’s ruling.

2. “An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.” OCGA § 51-7-1. An aggrieved plaintiff must prove three elements in a false arrest claim: an arrest under the process of law, without probable cause and made maliciously. Simmons v. Kroger Co., 218 Ga. App. 721, 722 (1) (463 SE2d 159) (1995). “To make out a claim of false arrest under OCGA § 51-7-1 or malicious prosecution under OCGA § 51-7-40, the plaintiff must show both the presence of malice and the absence of probable cause.” Fleming v. U-Haul Co. &c., 246 Ga. App. 681, 682-683 (2) (541 SE2d 75) (2000).

The trial court concluded in this case that the defendants were entitled to summary judgment because the identification of Simmons as the robber by Hicks and Bacon constituted probable cause. Regardless of the identification issue, Simmons argues that Hicks provided false and incomplete information to the investigating detective regarding employees present at both the robbery and Simmons’ visit to Mableton Finance the following month. “Ordinarily, the question of want of probable cause is one for jury resolution, unless from the undisputed facts it is obvious to the court that it does or does not exist.” (Citations omitted.) Medoc Corp. v. Keel, 166 Ga. App. 615, 616 (1) (305 SE2d 134) (1983). Probable cause “cannot exist if defendant knew that the facts stated to the law enforcement official were false or if [she] failed to make a fair, full, and complete statement of the facts as they existed, or if [she] concealed facts.” Willis v. Brassell, 220 Ga. App. 348, 353 (469 SE2d 733) (1996). Additionally, “[w]hile not conclusive, the dismissal of the charge is evidence that probable cause was lacking.” Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981). Viewed in the light most favorable to Simmons as the nonmovant, the investigating detective’s testimony presents a question of fact for the jury whether Hicks made false statements or failed to disclose all the facts and thus lacked probable cause to instigate the criminal prosecution. Brooks v. H & H Creek, Inc., 223 Ga. App. 635, 638 (1) (d) (478 SE2d 451) (1996). Thus the trial court erred in granting summary judgment to the defendants on the issue of probable cause.

Decided March 21, 2002.

Ezor & Olens, Andrew H. Agatston, for appellant.

David G. Crockett, for appellees.

3. The defendants also argued to the trial court that Simmons failed to present evidence that they acted with malice. “Malice may ... be inferred if defendants’ acts were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff.” (Citation and punctuation omitted.) K-Mart Corp. v. Lovett, 241 Ga. App. 26, 28 (2) (525 SE2d 751) (1999). In our view, a question of fact exists for the jury to determine whether Hicks wantonly disregarded Simmons’ rights by denying that any employee was present at both the robbery and Simmons’ visit to the office the following month, precluding the grant of summary judgment to the defendants on this issue.

4. Finally, the defendants argued in their motion for summary judgment that Simmons failed to show they instigated the prosecution, a required element of false arrest. The law draws a “fine line of demarcation” between cases in which a party who urges the institution of criminal proceedings is potentially liable, and a person who merely relays information to another who independently decides to prosecute is not liable. Brooks v.H & H Creek, supra, 223 Ga. App. at 636 (1) (a). “A person may be held liable for unduly influencing the decision to prosecute by providing information that is known to be . . . materially incomplete.” Id. at 637. The investigating detective testified that the defendants had made several phone calls and complaints regarding the lack of progress in the case, that she needed to “keep going on this thing to work with Mableton Finance to stop the phone calls,” and that the defendants insisted that the detective proceed to take a warrant out on Simmons. This evidence is sufficient to raise a question of fact as to whether the defendants instigated Simmons’ prosecution.

Judgment affirmed in part and reversed in part.

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


author: Pope, Presiding Judge.

text:
    A01A2067.
    In re LONGINO.
    (562 SE2d 761)
   Pope, Presiding Judge.

Attorney John T. Longino appeals his criminal contempt conviction arising out of his representation of Ideal Leasing Services, Inc. in a condemnation action. Ideal owned property in Whitfield County which it leased as a trailer truck repair facility. Whitfield County wanted to build a road through part of Ideal’s property and brought a condemnation action to take the land it needed. A jury awarded Ideal $200,000 for the taking, but the trial court ruled the award was unsupported by the evidence and granted Whitfield County’s motion for a new trial. The case was retried, and on April’18, 2001, the jury returned a verdict of $160,000 for Ideal.

Before the second trial, Whitfield County filed a motion in limine. The motion included a request to exclude evidence related to future expenditures by the property lessee. In particular, Whitfield County objected to evidence of an approximately $80,000 improvement that the lessee had intended to construct on the leased property before the announcement of the pending condemnation.

In response to Whitfield County’s motion in limine, the trial court ruled that Ideal would

not be allowed to offer any evidence with regard to special damages allegedly incurred by loss of bargain or loss of increased rental with regard to the proposed improvements planned by the lessee to the subject property and “chilled” by the announced forthcoming condemnation. A diminution in value which occurs as a result of an anticipated condemnation is not compensable.

During the second trial, Longino called Jimmy Leonard as an expert valuation witness. Leonard testified about the consequential damages to the remainder of Ideal’s property by reason of the condemnation. On cross-examination, it became clear that, in determining consequential damages, Leonard had included the value of the improvement that the lessee had planned for the property before the condemnation was announced. Counsel for Whitfield County objected. The trial court ordered the jury to leave the courtroom, and the trial court then questioned the witness about his testimony:

The Court: As I recall from the last trial, you had testified that in your opinion the just and adequate compensation for condemnee as a result of this taking was $120,000?
Mr. Leonard: That’s correct.
The Court: And today you have stated that you have increased that by $84,000, which was the value that would have been added to this property as a result of the improvements, which the condemnee had anticipated that the lessee, Great Dane, was going to make in accordance with an agreement that they had with them. Is that right?
Mr. Leonard: Yes, sir.
The Court: And what caused you, since the last trial, to do that? How did that come about?
Mr. Leonard: My counsel had said heretofore that addition
The Court: Who?
Mr. Leonard: Mr. Longino.
The Court: Mr. Longino suggested that to you?
Mr. Leonard: He said before that not being able to build that addition was going to be handled as special damages. . . . That I need not address that, so I didn’t.
The Court: What about this time?
Mr. Leonard: This time the wording that I was given by my counsel, Mr. Longino, was that my definition of consequential damages could include that addition.

The trial court indicated that Longino had deliberately violated its evidentiary order and that the court would consider the question later. The trial court took up the matter at the end of the trial and, after finding that Longino had deliberately used witness Leonard to violate the court’s motion in limine, asked Longino if he would care to be heard, heard his response on the record, found Longino in contempt, and sentenced him to 24 hours in the county jail and to pay a fine of $500. The trial court later issued a written “Summary Contempt Order” which memorialized the contempt finding and the sentence.

“The appropriate standard of appellate review for a criminal contempt conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) In re Healy, 241 Ga. App. 266, 268 (526 SE2d 616) (1999). For reasons which follow, we find that the trial court did not err in finding Longino in criminal contempt of court and affirm.

1. Longino claims his conduct was not contemptuous. We disagree. To intentionally introduce evidence in contravention of a ruling by a trial court is contemptuous. See Pleas v. State, 268 Ga. 889, 891 (3) (495 SE2d 4) (1998), in which our Supreme Court affirmed the trial court’s declaration of an attorney “in criminal contempt of court for purposefully violating a court ruling not to inject negative character evidence of the victim before obtaining permission from the court.”

2. Longino also argues that the motion in limine did not exclude Leonard’s testimony. In particular, Longino maintains that the loss of future improvements could be considered “consequential damages.” The motion in limine, he further argues, only excluded the use of the planned lessee improvements as “special damages.” We do not need to discuss whether the planned lessee improvements could be considered consequential damages to the remainder property in the condemnation action, because a common sense reading of the trial court’s motion in limine shows that it was the intention of the trial court to disallow these improvements in all valuation testimony. The order’s reference to a diminution in value by reason of an anticipated condemnation as “not compensable” should have been sufficient to show the intent of the court to exclude the use of the improvements in any measure of damages, including consequential damages. The trial court did not err in finding that witness Leonard’s damage calculations were not consistent with the motion in limine.

3. Longino claims that the trial court erred in ruling that Longino had advised Leonard to include the lost improvements in his valuation testimony. We again disagree. The record supports a finding that Longino took an active role in the inclusion of the excluded evidence in Leonard’s damage calculations.

4. Longino further claims the trial court erred in its finding that Longino handed it a prepared brief on the issue of the inclusion of lost improvements as consequential damages after the case went to the jury. Longino points out that the brief had been prepared and filed earlier as a response to Whitfield County’s anticipated objection to the inclusion of the lost improvements in consequential damages. If the trial court was mistaken about the timing of the brief’s submission, we do not find it materially relevant to Longino’s culpability. Longino may have anticipated a dispute over the classification of lost improvements, but he said nothing to the judge or the other counsel until after the questionable valuation testimony had been put before the jury.

5. Longino contends the trial court denied him due process, particularly in determining criminal liability, without first advising Longino that criminal charges were being considered, in deciding the issue before hearing any evidence from Longino, and in denying Longino counsel. The controlling guidelines are set forth in Dowdy v. Palmour, 251 Ga. 135, 141-142 (2) (304 SE2d 52) (1983):

(a) A trial judge may find an attorney in contempt of court without trial by jury where the penalty actually imposed does not exceed six months, (b) During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing. The carrying out of the punishment announced during trial may be postponed until after trial, (c) Where the announcement of punishment is delayed, and where the contumacious conduct was not directed toward the judge and where the judge did not react to the contumacious conduct in such manner as to become involved in the controversy, the judge has the power to hold a contempt hearing at the conclusion of the trial and, after giving the attorney reasonable notice of the specific charges and opportunity to be heard, to impose punishment, (d) Where the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such manner as to become involved in the controversy, the judge may give the attorney notice of specific charges, but the hearing, including the attorney’s opportunity to be heard, must be conducted by another judge.

(Footnotes omitted.)

The trial court acted within the parameters established by Dowdy. Sentence was passed after the trial by the judge before which the contumacious conduct occurred, but there is no indication in the record that the conduct was directed toward the judge or that the judge reacted so as to exhibit a personal interest in the matter. Longino was given an opportunity to be heard. Although Longino asked for counsel, the scope of due process for summary contempt proceedings set forth under Dowdy is quite specific, and it does not include the right to counsel. There has traditionally been no right to counsel at a summary contempt hearing. See Johnson and Reaves, Contempt of Court in Georgia, 23 Ga. State Bar Journal 66, 70-71 (1986). See generally Garland v. State of Ga., 99 Ga. App. 826, 831 (2) (110 SE2d 143) (1959).

6. Longino claims the trial court erred in the form of the order of contempt because the order failed to cite “both the bad conduct and its adverse impact” with specificity. Longino also complains that there was no contemporaneous warning from the trial court that he refrain from engaging in the contemptuous behavior.

The requirements for the form of the contempt order are listed in In re Healy.

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

(Emphasis omitted.) Id. at 268-269. The trial court specifically identifies the conduct it finds contemptuous. The alleged conduct consists of purposefully circumventing a court order, which is a direct challenge to the court’s authority. We find no merit to Longino’s objections to the form of the trial court’s contempt order.

Although there was no contemporaneous warning with respect to Longino’s questioning of Leonard, it would not have been initially apparent to the trial court that Longino was engaging in contemptuous behavior because Leonard’s testimony on direct examination did not show that he had used the planned lessee improvements in arriving at the measure of consequential damages. The trial court had no opportunity or reason to warn Longino until after Leonard had undergone cross-examination. But the motion in limine stood as the court’s previously announced decision with regard to the evidentiary matter in question, and so there is no punishment here for conduct that Longino did not know would be in contravention of the order of the court.

7. Finally, Longino maintains that Saldana v. Kmart Corp., 260 F3d 228 (3rd Cir. 2001), demands a reversal. In Saldana, the United States Court of Appeals for the Third Circuit reversed a contempt citation against an attorney because the attorney was not notified in advance of the legal rule on which her sanctions would be based. 260 F3d at 236. But Saldana is completely inapplicable. The lawyer was sanctioned by the district court for her use of out-of-court profanity with other attorneys. The sanctions were not based on the inherent power of the court to punish contemptuous behavior, but on a district court rule which was referenced in the contempt order, and the court rule was not mentioned in any argument or proceeding before the contempt order was issued. 260 F3d at 236-237. This appeal involves summary contempt for an in-court violation of an existing order, and Saldana is not persuasive.

Decided March 21, 2002

John T. Longino, pro se.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, Charles L. Daniel III, for appellee.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       This action was the subject of a separate appeal, Ideal Leasing Svcs. v. Whitfield County, 254 Ga. App. 397 (562 SE2d 790) (2002).


author: POPE, Presiding Judge.

text:
    A01A2093.
    COSBY v. THE STATE.
    (562 SE2d 765)
   POPE, Presiding Judge.

Defendant Brian Cosby was convicted following a jury trial of armed robbery. He appeals, contending in his sole enumeration of error that the trial court erred by admitting, over objection, the nonredacted statements of two nontestifying co-defendants. We agree that the admission of this evidence was error and reverse.

Cosby, Antwan Estelle, Jermaine Baker, Carlos Wood and Dwy-att Ware were charged with the armed robbery of a convenience store. The evidence showed that the five men, along with Baker’s girlfriend who was not charged, traveled from Heflin, Alabama, near the Georgia-Alabama border to Georgia in two cars. They talked, or according to their trial testimony or statements to police introduced at trial, “joked” about committing a robbery. They eventually arrived at a Starvin Marvin convenience store in Carrollton, Georgia. Cosby, Estelle and Wood parked in front of the store, and Baker and Ware, who were traveling in the other car, parked near the store in another lot. Cosby entered the store and attempted to purchase some cigars, but the clerk would not allow the purchase because he did not have proof of age. Cosby told the clerk he would just purchase a soft drink and the clerk pointed the way to the soft drink cooler. Cosby removed a drink from the cooler and was returning to the counter when Ware entered the store with a gun and ordered the clerk to give him money. The clerk complied, and Ware “ran across the field and jumped into the car with [Baker],” and they drove back to Alabama. Cosby walked out of the store and got in the car with Estelle and Wood. Estelle told police he did not believe Cosby when he told him Ware had robbed the store and that Cosby stated, “I thought the fool was joking, man. This fool for real this time.”

Baker and Ware pled guilty and testified at trial. Cosby, Estelle and Wood were tried together, and their statements to investigating officers given shortly after the crime was committed were admitted into evidence at trial. In his statement, as well as his trial testimony, Cosby denied participating in the armed robbery and told officers he thought the others were joking when they talked about committing a robbery. Estelle and Wood did not testify at trial, but their statements identifying Cosby as the person who entered the store to be the lookout and as the person who divided the proceeds of the crime were admitted over objection. Cosby argues that the admission of the statements violated his right of confrontation and was prohibited by Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). We agree that the admission of these unredacted statements was error.

[Unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998). In this case the statements referred to Cosby by name and were clearly inculpatory. Nevertheless, the state argues that even if it was error to admit the statements, Cosby’s conviction should not be reversed because Baker and Ware testified for the state at trial and also implicated Cosby as the lookout and as the participant who divided up the proceeds. “To be harmless, a Bruton error must be harmless beyond a reasonable doubt. Schneble v. Florida, 405 U. S. 427 [(92 SC 1056, 31 LE2d 340)] (1972). [Cit.] Where overwhelming evidence of a defendant’s guilt exists apart from the statement of the co-defendant, then any violation of Bruton is harmless beyond a reasonable doubt. [Cit.]” (Punctuation omitted.) Cunningham v. State, 240 Ga. App. 92, 98 (3) (522 SE2d 684) (1999).

In this case, the other evidence of Cosby’s guilt was not overwhelming. Baker’s and Ware’s testimony was impeached by showing that they had previously given statements and previously testified under oath to a different version of events, and their previous statements and testimony did not implicate Cosby as the lookout or as having divided up the robbery proceeds. Baker’s girlfriend, who was traveling with the perpetrators but against whom no charges were filed, did not implicate Cosby in the crime, and her testimony failed to corroborate the inculpatory trial testimony given by Baker and Ware. And the convenience store clerk could testify only that she had a “gut instinct” that Cosby was involved in the crime but she never saw him with the actual robber or act in a manner which was indisputably inculpatory. Under these circumstances we cannot say that the evidence was overwhelming, and Cosby’s conviction must be reversed because of the harm caused by the admission of the inculpa-tory statements of the nontestifying co-defendants. Collins v. State, 242 Ga. App. 450, 451 (1) (529 SE2d 412) (2000); Cunningham v. State, 240 Ga. App. at 98 (3).

Decided March 21, 2002.

T. Michael Flinn, Dennis T. Blackmon, for appellant.

Peter J. Skandalakis, District Attorney, Tara M. Wilson, Assistant District Attorney, for appellee.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A2094.
    BOWLING v. FOSTER et al.
    (562 SE2d 776)
   Pope, Presiding Judge.

Wanda Bowling appeals from a directed verdict entered in her medical malpractice action against John Irving Foster III, M.D., and his employer, Atlanta Center for Athletes, Inc. She also appeals the trial court’s dismissal of her claims against William G. Sutlive III, M.D., and Rick K. St. Pierre, M.D. We affirm the directed verdict in part and reverse in part, and we affirm the dismissal of the claims against Sutlive and St. Pierre.

Bowling sought treatment from Atlanta Center for pain in both her feet, which she indicated she had been experiencing for approximately one year. On February 7,1995, Sutlive, a general practitioner, examined Bowling and diagnosed her with Morton’s neuroma, a painful condition involving an inflamed nerve in between the toes of the foot. Sutlive told Bowling to avoid wearing high-heeled shoes and prescribed an anti-inflammatory. Bowling did not fill the prescription, but instead took aspirin.

She returned on March 14, 1995, and reported little change in her condition. Sutlive referred Bowling to Foster, an Atlanta Center orthopedic surgeon, for evaluation. That day, Bowling signed a consent form for surgery to remove the neuromas. On March 20, 1995, Foster met with Bowling to confirm the diagnosis and to discuss the surgical option. Bowling stated that neither Sutlive nor Foster ever discussed the possible use of steroid injections as an alternative to surgery.

Foster operated on both of Bowling’s feet on March 30. Foster testified that although he intended to remove the neuromas during the operation, he determined several weeks later after seeing a pathologist’s report that he had actually removed adjacent tissue and not the neuromas. Foster testified, however, that during the operation he cut the ligaments overlying the affected nerves in order to get to the neuromas. He stated that cutting the ligament to relieve pressure is one method of treating this condition that has a success rate of 40 to 80 percent. The success rate when a neuroma is removed is in the range of 90 percent. Although Foster realized that he had not removed the neuromas, he stated that he hoped Bowling’s condition would improve from the release of pressure.

Bowling testified that during her first post-operative visit, Foster told her that he would know “within in a week or so” whether he had helped her. When Bowling continued to experience pain, she said Foster told her that the pain was probably the result of scar tissue and never disclosed that he had failed to remove the neuromas. Foster administered steroid injections at her third post-operative visit. He said he recommended that option in lieu of additional surgery because he was waiting to see if she would improve without it.

When the injections did not bring Bowling relief, she consulted another doctor for a second opinion. Bowling requested that Foster’s office forward her records to the doctor, but the evidence showed that the forwarded records did not include Sutlive’s notes or the pathology report showing that the neuromas had not been removed. The records sent also erroneously reflected that Bowling had received steroid injections prior to surgery. The second doctor recommended that she return to Foster for additional treatment. Bowling opted to consult a third doctor, Perry Julien, a podiatrist. Julien eventually performed additional surgery in October 1995 and removed the neuromas from Bowling’s feet.

1. In Bowling’s initial complaint, she alleged that Foster and Atlanta Center committed malpractice by failing to exhaust more conservative treatments prior to surgery and for failing to inform her after surgery that he had not removed the neuromas. She also asserted that Foster’s failure to inform her of the results of the operation constituted a breach of fiduciary duty, a breach of a private duty and constructive fraud. Bowling later amended her complaint to assert a claim of battery against Foster and Atlanta Center on the sole ground that the surgery was performed without exhausting more conservative treatment options first.

In her pre-trial order, Bowling modified her claims again. In addition to the claims previously asserted against Foster and Atlanta Center, she contended that the failure to exhaust more conservative treatment options also constituted a breach of a private duty. She further alleged that Foster had intentionally misrepresented that her post-operative pain was attributable to scar tissue. Bowling also asserted in the pre-trial order that the failure by Foster and Atlanta Center to send complete and accurate records to Bowling’s second doctor demonstrated bad faith, entitling her to an award of attorney fees.

At the close of Bowling’s evidence, the trial court granted a motion for directed verdict on these claims; Bowling takes issue with this ruling.

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

(Citation and punctuation omitted.) City of Columbus v. Barngrover, 250 Ga. App. 589, 593-594 (552 SE2d 536) (2001).

Bowling’s claims against Foster and Atlanta Center arise out of both their pre-operative and post-operative conduct, and we will address each separately.

(a) Pre-operative. Bowling asserts that it was error for the trial court to direct a verdict as to her claims arising from the failure to pursue the more conservative option of steroid treatments prior to surgery.

In order to succeed on her claim for medical malpractice, Bowling was required to show three elements: “(1) the duty inherent in the doctor-patient relationship; (2) breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” (Citation and punctuation omitted.) Cannon v. Jeffries, 250 Ga. App. 371, 372-373 (1) (551 SE2d 777) (2001). There is a presumption in medical malpractice cases that the physician performed in an ordinarily, skillful manner, so the burden is upon the plaintiff to show a want of due care or skill. Killingsworth v. Poon, 167 Ga. App. 653, 654 (307 SE2d 123) (1983). It is not sufficient to show that the testifying doctor would have done something differently. McNabb v. Landis, 223 Ga. App. 894, 896 (5) (479 SE2d 194) (1996). Therefore, a plaintiff is usually required to “offer expert medical testimony to the effect that the defendant-doctor failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances.” (Citation omitted; emphasis supplied.) Killingsworth v. Poon, 167 Ga. App. at 655.

Bowling did not present the testimony of her medical expert at trial, but rather relied upon the testimony of Julien, the podiatrist who performed the second round of operations on her feet. Other than testifying that he would have treated Bowling with steroid injections first, the only testimony Julien gave on the subject was an affirmative response to a general question regarding the standard of care in treating Morton’s neuroma: “Q: Do you believe the standard of care requires you to try steroid injections on a patient before surgery? A: Yes.”

We do not find this generalized testimony sufficient to establish the standard of care in this case. Julien was never asked and he never testified that Foster deviated from the standard of care under the circumstances of this case. For example, Bowling had been experiencing foot pain for approximately one year before seeking treatment. Foster testified that under those circumstances he believed that it was not inappropriate to pursue a surgical option before attempting steroid injections. But Julien never addressed whether prolonged pain could affect the standard of care, and, in fact, he did not recall that Bowling told him she had been experiencing pain for that length of time. Thus, Julien never directly addressed the particular circumstances of Bowling’s case as presented to Foster. In fact, he never specifically testified regarding the propriety of Foster’s treatment of Bowling at all; rather, he testified as to his own treatment.

Because there was no testimony from any doctor or expert that Foster deviated from the standard of care under the circumstances of this case, the evidence did not support a claim for medical malpractice. Compare, e.g., Jackson v. Gershon, 251 Ga. 577, 578-579 (308 SE2d 164) (1983) (testimony of doctor who subsequently treated patient specifically addressing what defendant-doctor should have done held sufficient to create a jury issue in medical malpractice case). Nor do we find that the propriety of administering steroid injections prior to surgery in a case of Morton’s neuroma falls within the exceptions to the general rule requiring expert testimony. See Killingsworth, 167 Ga. App. at 655.

But even if Julien’s testimony was sufficient to present a jury question on medical malpractice, Bowling’s claim would not succeed because she failed to present any evidence of causation. In order to prove causation, Bowling was required to show more than the mere possibility that giving her the option of steroid injections would have prevented surgery:

Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from [a] want of care or skill. A bare possibility of such result is not sufficient. Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.

(Citation and punctuation omitted.) Cannon v. Jeffries, 250 Ga. App. at 373.

Bowling presented no evidence that the surgery could have been avoided had steroid injections been administered first. Indeed, Bowling’s counsel conceded as much at trial. Bowling also failed to present any testimony that the failure to administer steroid injections caused any other injury. There was no testimony, for example, that it could have affected the surgery or her post-operative recovery. The trial court, therefore, properly granted a directed verdict on Bowling’s medical malpractice claim.

In addition, we find that Bowling could not assert a separate claim for breach of a private duty under OCGA § 51-1-8 arising out of the same conduct. Under Georgia’s informed consent statute, a physician is required to inform the patient of the practical alternatives to surgery “which are generally recognized and accepted by reasonably prudent physicians.” OCGA § 31-9-6.1 (a) (5). But that statute also provides that the failure to comply with its requirements does not give rise to a separate cause of action, although it may give rise to a claim for medical malpractice. OCGA § 31-9-6.1 (d). Our Supreme Court has interpreted that provision to mean that “a medical provider’s failure to make the requisite disclosures does not constitute an independent cause of action, but rather may only give rise to and support a claim of professional negligence.” (Emphasis supplied.) See Albany Urology Clinic v. Cleveland, 272 Ga. 296, 300 (2) (528 SE2d 777) (2000) (discussing fraud claim). Moreover, the private duty Foster owed Bowling is defined by the applicable standard of care, which the evidence failed to establish. Accordingly, we find that Bowling may not pursue a separate action for breach of a private duty arising out of Foster’s alleged failure to inform her of the alternative of using steroid injections.

We further find that the trial court properly directed a verdict on Bowling’s battery claim arising out of the failure to offer steroid injections. While Bowling does have a right to pursue a battery claim independent of her medical malpractice claim, that claim is negated by the consent form she signed in this case. A claim for battery arises from “any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery.” (Citation and punctuation omitted.) Harris v. Leader, 231 Ga. App. 709, 710 (1) (a) (499 SE2d 374) (1998). But there can be no such tort where the patient consents to the contact. Id.

Here, Bowling signed a form consenting to the surgery performed by Foster. And although he did not successfully perform that surgery, the evidence showed that he only had contact with the area of Bowling’s body covered by the consent form. The question then becomes whether the consent was valid. “The law expressly recognizes that it was not valid if it was obtained by fraudulent misrepresentations of material facts. See OCGA § 31-9-6. Mere negligence is not enough.” (Citation and punctuation omitted.) Smith v. Wilfong, 218 Ga. App. 503, 507 (2) (462 SE2d 163) (1995).

While Bowling asserts that Foster never informed her that steroid injections were an alternative to surgery, there is no evidence that such an omission was in any way fraudulent. Accordingly, Bowling is bound by the consent form, and the trial court correctly directed a verdict on her battery claim.

(b) Post-operative. Bowling also claims error in the trial court’s directed verdict on her claims arising out of Foster’s post-operative treatment. She asserted claims for medical malpractice, breach of fiduciary duty, breach of a private duty and fraud arising out of Foster’s failure to inform her that he had not removed the neuroma from either foot and his representation that her post-operative pain could be attributed to scar tissue.

Although Bowling asserted a medical malpractice claim arising out of this conduct, the expert affidavit attached to her complaint did not address any of Foster’s post-operative conduct. Moreover, she presented no expert testimony that Foster’s failure to disclose the results of the operation deviated from the standard of care. And while Bowling contends that Sutlive testified that the standard of care required the disclosure of the results of the operation, that testimony came from Sutlive’s deposition. At trial, Sutlive acknowledged his earlier testimony but stated that as a general practitioner, he did not feel qualified to pass judgment on Foster’s actions as a surgeon.

We find that the evidence falls short of establishing the standard of care under the circumstances of this case. Nor do we believe that the conduct at issue falls within those cases where the courts have found an exception to the general rule that expert testimony is required to establish the standard of care. Foster testified, without contradiction, that although he did not remove the neuromas, there was a 40-80 percent chance that the surgery could have alleviated Bowling’s pain and he waited to determine if that had occurred before discussing additional surgery. Accordingly, expert testimony was required to demonstrate whether the standard of care required Foster to reveal the results of the surgery by the time of the last postoperative appointment, and Bowling failed to present such testimony. Thus, a directed verdict was proper as to her medical malpractice claim under these facts.

Further, a directed verdict was appropriate as to Bowling’s claims for breach of fiduciary duty, breach of a private duty and fraud to the extent that they were based merely upon Foster’s failure to reveal the results of the surgery prior to administering the postoperative steroid injections, as Bowling is limited to recovery under the law of medical malpractice for such claims. See Albany Urology Clinic v. Cleveland, 272 Ga. at 300 (2); OCGA § 31-9-6.1 (d).

Nevertheless, we find that the trial court erred in dismissing all of Bowling’s claims because she alleges something more than a mere failure to inform. She also asserts that Foster actively misled her by attributing her post-operative pain to scar tissue, rather than the failure to remove the neuromas. Bowling testified that based upon Foster’s representations she blamed herself for her failure to get better, thinking she was just “not working hard enough to recover,” and did not know what course to take. In addition, the evidence showed that after Bowling requested that her records be forwarded to her second doctor, Foster and Atlanta Center failed to send the pathology report that would have revealed that Foster had not removed the neuromas. They also failed to send Sutlive’s records, which contain no reference to pre-operative steroid injections, but did send Foster’s records, which inaccurately indicated that she had received such injections. While Foster and Atlanta Center presented testimony to explain their actions, we find there was sufficient evidence to present a jury question on Bowling’s claims for fraud, breach of fiduciary duty and breach of a private duty arising out of this conduct.

No expert testimony was necessary to get these claims before a jury because the claims do not require proof of a professional standard of care:

Not every claim which calls into question the conduct of one who happens to be a professional is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises.

(Citation and punctuation omitted.) Boggs v. Bosley Med. Institute, 228 Ga. App. 598, 600 (1) (a) (492 SE2d 264) (1997). In other words, “no expert testimony is required to establish that it is improper for (physicians) to defraud their clients.” Id. See also Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d 632) (1998). Accordingly, we reverse the directed verdict as to these claims.

2. Bowling also asserts that the trial court erred in dismissing her claims against Sutlive and St. Pierre. Bowling initially alleged claims for breach of fiduciary duty, breach of a private duty and constructive and actual fraud against Sutlive, St. Pierre and Atlanta Center on the ground that she was billed at a surgeon’s rate under St. Pierre’s name for her visits with Sutlive, a general practitioner. Bowling later filed a “Second Amended Complaint in Tort for Medical Malpractice and Fraud” on July 12, 1999, withdrawing her factual allegations relating to the excessive bill. The second complaint then alleged for the first time that Sutlive had improperly scheduled Bowling for surgery in the name of surgeon St. Pierre. The amendment purported to substitute these factual allegations for the allegations of overbilling in the original complaint. Sutlive and St. Pierre moved to dismiss these claims on statute of limitation grounds and for the failure of Bowling to attach an expert medical affidavit. The trial court granted the motion.

Based upon our review of the record and after considering the parties’ arguments, we find that the dismissal of these claims was proper.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Mikell, J., concur.

Decided March 21, 2002.

Neal H. Howard & Associates, Neal H. Howard, Joann Brown-Williams, William D. James, Debra S. Robinson, for appellant.

Carlock, Copeland, Semler & Stair, Mary K. Greene, Michael A. Strickland, for appellees.

       Bowling asserted no claims in her complaints or in the pre-trial order directly arising from the failure of Foster to remove the neuromas during her first surgery. Nor did she ask to amend her pre-trial order to include such claims. To the extent that she is asserting such claims on this appeal, we will not consider them. See Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (1) (486 SE2d 851) (1997); Hightower v. Kendall Co., 225 Ga. App. 71, 72 (3) (483 SE2d 294) (1997).

        Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990).

       While Bowling is now arguing a battery claim arising out of this conduct, she never asserted such a claim in her complaints or the pre-trial order, nor did she seek leave to amend the pre-trial order. Therefore, we will not consider such an argument. See Dept. of Human Resources v. Phillips, 268 Ga. at 318 (1); Hightower v. Kendall Co., 225 Ga. App. at 72 (3).