author: Ruffin, Judge.

text:
    A95A2053.
    ZIMMERMAN v. HAMMER.
    (470 SE2d 688)
   Ruffin, Judge.

Eleanor Hammer filed suit against Blaine Zimmerman in Jasper County. A Rockdale County deputy sheriff personally served Zimmerman at his residence in Newton County. Zimmerman answered, asserting Hammer’s complaint should be dismissed for improper service of process. The trial court subsequently denied Zimmerman’s motion to dismiss for lack of service, and we granted his application for interlocutory appeal. Because we find service was improper, we reverse.

Decided February 19, 1996

Reconsideration denied March 28, 1996

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Michael C. Daniel, Richard L. Ford, Jr., P. Matthew Ledbetter, Jr., Dargan S. Cole, for appellant.

OCGA § 9-11-4 (c) plainly states who may serve process in a civil action. Process must be served by either (1) the sheriff or deputy of the county where the action is filed; (2) the sheriff or deputy of the county where the defendant is found; (3) the marshal or sheriff of the court or their deputies; or (4) any specially appointed process server. OCGA § 9-11-4 (c). We have consistently required that “personal service must be made by an authorized person. [Cits.]” Dept. of Transp. v. Marks, 219 Ga. App. 738 (466 SE2d 273) (1995). See, e.g., Townsend v. Williams, 170 Ga. App. 766 (318 SE2d 510) (1984) (chief of police not authorized to serve process); Denny v. Croft, 195 Ga. App. 871 (2) (395 SE2d 72) (1990) (Georgia Bureau of Investigation agent not authorized to serve process).

In this case, the trial court found that Zimmerman lived near the Rockdale-Newton county line and that the sheriff mistakenly believed his residence was located in Rockdale County. The trial court concluded that because Zimmerman was personally served, “[declaring that service to be insufficient would be elevating form over substance, rewarding [Zimmerman] for an unknown, unintentional, technical error that can be blamed on no one.” However, we are aware of no authority that would permit an unauthorized person to perfect service. Moreover, “the language of the statute is so plain and unambiguous that judicial construction is both unnecessary and unauthorized. . . . [T]here is no authority to dispense with the clear requirements of [OCGA § 9-11-4 (c)] merely because the defendant may otherwise obtain knowledge of the filing of the action.” (Citations omitted.) Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). See also Townsend, supra.

“ ‘In the absence of service in conformity with (the statutory) rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court. . . .’ [Cit.] Since no issue of waiver was raised by [Hammer] in the trial court or on appeal, that issue was not preserved for appellate review. [Cit.]” Marks, supra.

We thus conclude that because Zimmerman was not served by a sheriff of Jasper County, where the action was filed, or a sheriff of Newton County, where Zimmerman was found, service was improper, and the trial court erred in denying his motion. See id.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.

Wheeler & Watson, D. Kevin Wheeler, James A. Watson, John W. Henderson, Jr., for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A2057.
    SMITH et al. v. COMMERCIAL TRANSPORTATION, INC. et al. AMERICAN CASUALTY OF READING, PENNSYLVANIA v. SMITH et al.
    A95A2058.
    (470 SE2d 446)
   Pope, Presiding Judge.

At 4:30 one morning, defendant Michal Szaflarski was driving a tractor-trailer full of produce on 1-75. As a result of his negligence, the tractor-trailer overturned, blocking all three lanes of northbound traffic. Defendant Commercial Transportation, Inc. (“CTI”) was Szaflarski’s employer, and defendant American Casualty was CTI’s insurer. Almost six hours after the Szaflarski accident, the tractor-trailer still had not been cleared from the road, and northbound traffic was backed up for two miles. Brian Marcus, a 16-year-old driving his family back from a trip to Florida, approached the congested area with his cruise control set at 65 mph. He failed to notice that the vehicles in front of him were slowing down, and struck the rear of another tractor-trailer. One of Brian’s sisters (Shelby Marcus) was killed in the resulting accident, and another (Marissa Marcus) was injured.

Plaintiffs — Shelby’s estate and Marissa — sued Szaflarski, his employer, and the employer’s insurer. Additionally, plaintiffs sued the Department of Transportation, alleging that the DOT breached its duty to clear the highway and/or put up warning signs. The insurer moved for summary judgment on the ground that it could not be joined as a party under OCGA § 46-7-12 (e) or § 46-7-58 (e) because CTI was not a motor carrier at the time of the accident. This motion was denied. Subsequently, however, the trial court granted summary judgment for all defendants based on its conclusion that Brian’s negligence was the sole proximate cause of the accident involving his family vehicle. In Case No. A95A2057, plaintiffs contend this grant of summary judgment for all defendants was error. And in Case No. A95A2058, the employer’s insurer cross-appeals, asserting that its original motion for summary judgment should have been granted anyway.

Case No. A95A2057

1. Because a jury could find that Szaflarski’s negligence proximately caused the Marcus accident, summary judgment should not have been granted for Szaflarski, CTI, and CTI’s insurer (“the trucking defendants”). Determinations of proximate cause are for the jury, and may be taken away from the jury only if the situation is so clear that reasonable minds could not differ. See Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990).

The trial court concluded that the intervening negligence of Brian Marcus cut off the liability of the trucking defendants as a matter of law. Clearly there can be more than one proximate cause of an accident, however, and “if the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act.” Perry v. Lyons, 124 Ga. App. 211, 216 (1) (b) (183 SE2d 467) (1971). Moreover, “both the Supreme Court and this court have held in a plethora of cases that one who is negligent in blocking or obstructing a roadway, whether by turning, stopping, braking, backing, overturning, colliding, etc., is not relieved of the injurious consequences inflicted by the negligence of another motorist encountering the obstruction.” Id. See also Gen. Motors Corp. v. Davis, 141 Ga. App. 495, 497 (2), (3) (233 SE2d 825) (1977); Stern v. Wyatt, 140 Ga. App. 704 (231 SE2d 519) (1976).

Defendants focus on the nature and degree of Brian’s negligence (even though that is a disputed fact issue and this is their motion for summary judgment), arguing that because his behavior was so unreasonable, it could not be foreseen. Cf. Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 806 (1) (415 SE2d 705) (1992) (physical precedent only) (suggesting intervening negligent act will cut off liability unless it is a “normal” reaction). This is illogical, of course, since by definition any intervening negligent act will not be reasonable or normal, and we know that not all intervening negligent acts cut off liability. In any case, the foreseeability analysis is not that specific: the relevant inquiry is not whether the exact intervening negligent act was foreseeable, but whether, as a general matter, the original negligent actor should have anticipated that this general type of harm might result. See Davis, 141 Ga. App. at 497; Stern, 140 Ga. App. at 706. And as a general matter, it would be difficult to state that the possibility of subsequent collisions following an initial accident blocking the road is absolutely not foreseeable.

Defendants also argue that the Szaflarski accident could not have proximately caused the Marcus accident because it was too “remote” in terms of time and space. While the five to six hours and two miles separating the accidents in this case are certainly factors to be considered in the foreseeability analysis, we cannot agree that they are decisive as a matter of law. A jury could conclude that when one negligently turns over a tractor-trailer full of produce, it is reasonably foreseeable that the time required to clear it and the resulting traffic back-up will be immense.

2. The trial court’s grant of summary judgment for defendant DOT was proper, however. Plaintiffs assert that the DOT should have cleared the initial accident more quickly and should have posted warning signs. But under OCGA § 32-6-29 (b) (4), DOT officers have the authority to direct and control traffic at the scene of an accident only until law enforcement authorities arrive. In this case, law enforcement authorities arrived almost immediately and remained in charge throughout; DOT officials simply assisted in the arduous task of unloading the truck by hand. Nor did the DOT have the duty to post warning signs in an accident situation (as opposed to a lane closure for construction or maintenance), and there is no evidence that it assumed that duty. Furthermore, we have held that where a driver missed several indications of a hazard, jurors cannot speculate that putting up a sign about the hazard would have made any difference. See Watson v. Marshall, 212 Ga. App. 206, 207 (1) (441 SE2d 427) (1994). Thus, the failure to put up a warning sign could not have proximately caused the accident. Id. For these reasons, the grant of summary judgment for the DOT is affirmed.

Case No. A95A2058

3. In its cross-appeal, CTI’s insurer contends it could not be joined as a party under the motor carrier direct action statutes (OCGA §§ 46-7-12 (e); 46-7-58 (e)) because CTI was not a motor carrier at the time of the Szaflarski accident. Specifically, the insurer contends that because Szaflarski was carrying unprocessed produce at the time of the accident, CTI was not a motor carrier under OCGA § 46-1-1 (7) (C) (xi), which provides that the definition of motor carrier “shall not include . . . motor vehicles engaged in the transportation of unmanufactured agricultural products . . .; except that any operator of such a vehicle is required to register the exempt operation with the [Public Service Commission].” See also OCGA §§ 46-7-15; 46-7-60. In Nat. Indem. Co. v. Tatum, 193 Ga. App. 698 (388 SE2d 896) (1989), this Court held that the motor carrier direct action statutes do not apply to allow a direct action against the insurer of a carrier engaged exclusively in an exempt operation such as the transportation of unmanufactured agricultural products. Unlike the carrier in Tatum who transported only potting soil, however, CTI was not engaged exclusively in an exempt operation under OCGA § 46-1-1 (7) (C). See also Bailey v. Occidental Fire &c. Co., 193 Ga. App. 710 (388 SE2d 899) (1989) (applying Tatum rule where carrier engaged exclusively in the transportation of gravel, another exempt operation). While CTI was hauling produce on the occasion of this accident, it frequently hauled other types of loads which would not be exempt — which is presumably why it registered with the Public Service Commission as a motor carrier rather than a carrier engaged in an exempt operation. It would soon become unworkable to change statutory categorization with each change of load. Thus, under these circumstances, we conclude that CTI could not be considered a carrier engaged in an exempt operation despite its cargo of produce at the time of the accident, and the trial court did not err in denying the insurer’s motion for summary judgment on this ground. See Progressive Cas. Ins. Co. v. Scott, 188 Ga. App. 75, 76 (371 SE2d 881) (1988) (physical precedent only).

Decided March 6, 1996

Reconsiderations denied March 28, 1996

Gambrell & Stolz, Irwin W. Stolz, Jr., Charles N. Bowen, Seaton D. Purdom, O’Neal, Brown & Sizemore, Manley F. Brown, John C. Clark, for Smith.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Blasingame, Burch, Garrard, Bryant & Ashley, J. Ralph Beaird, Andrew J. Hill III, Milton F. Eisenberg II, Hicks, Casey, Young & Barber, William T. Casey, Jr., Carl B. Nagle, for Commercial Transportation, Inc.

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, David D. Cookson, for American Casualty of Reading, Pennsylvania.

Judgment affirmed in part and reversed in part in Case No. A95A2057. Judgment affirmed in Case No. A95A2058.

Beasley, C. J., and Ruffin, J., concur.

       As this appeal is from a grant of summary judgment for defendants, we view the evidence in a light most favorable to the plaintiffs.

        Herring v. Condit, 218 Ga. App. 855 (463 SE2d 532) (1995) is distinguishable, as the initial accident was not blocking the road and other drivers stopped (thereby causing the subsequent accident) even though they did not need to.


text:
    A95A2180.
    CAPERS v. THE STATE.
    (470 SE2d 887)
   Ruffin, Judge.

Reginald Leonard Capers was convicted of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1) (A). He appeals the judgment of conviction and sentence following the denial of his motion for new trial. For the reasons which follow, we affirm.

The evidence at trial revealed the following. This case arose after police officers stopped a car driven by Capers’ co-defendant, Jerry Whitley, for failure to maintain his lane. Capers was a passenger in the car. When one of the officers leaned down to ask for the vehicle registration papers, he noticed rolling papers and what appeared to be marijuana seeds on the console between the seats. Whitley consented orally and in writing to the officer’s request to search the car. Inside a closed gym bag behind the driver’s seat, the officers discovered a clear plastic sandwich bag filled with 2.4 ounces of 86 percent pure cocaine. They also found a pair of size IIV2 Nike shoes and various toiletries in the gym bag, including a pair of hair clippers. The officers then arrested Capers and Whitley and advised them of their rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Shortly thereafter, an officer asked Capers whether the cocaine was for his personal use or to sell, and Capers responded that it was for his personal use and he had a habit. At trial, three officers testified to this statement, but Capers denied making it.

Initially, one attorney represented both defendants. However, when the attorney learned that the co-defendants’ defenses conflicted because each claimed the gym bag belonged to the other, he withdrew his representation of Whitley. Trial counsel then filed an unopposed motion to sever based on the fact that he had interviewed Whitley as a potential client. At trial, the State called Whitley as a witness. The State subsequently filed a motion for nolle prosequi on Whitley’s behalf based on the evidence at Capers’ trial and the insufficiency of the evidence against Whitley.

After Capers’ conviction, he obtained new counsel who raised the issue of ineffectiveness in a motion for new trial. After a hearing on the matter, the trial court determined that Capers’ trial counsel was not ineffective.

1. Capers argues that his counsel was ineffective for failing to (a) move to suppress the cocaine evidence upon the mistaken belief that Capers lacked standing; (b) reserve exceptions to the jury charges on parties to a crime and expert witnesses; (c) request a charge relating to Capers’ custodial statements; (d) obtain certified copies of Whitley’s prior drug convictions; (e) invoke the rule of sequestration at the hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964); (f) object to testimony about Capers’ prior marijuana conviction; (g) object to testimony about the consent to search under the best evidence rule; (h) investigate the case and interview the arresting officers; and (i) adequately prepare Capers for trial.

A defendant bears the burden of establishing that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). The trial court’s finding of effectiveness must be upheld unless clearly erroneous. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993). A reviewing court need not address both components of an ineffective assistance of counsel claim if the appellant makes an insufficient showing of one. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989). The following demonstrates that Capers failed to establish a claim of ineffective assistance of counsel.

(a) Passengers who assert no interest in a car or the property in it lack standing to object to a search of the vehicle. Ballard v. State, 216 Ga. App. 315 (454 SE2d 200) (1995). The record shows that Capers denied having an interest in the car. Despite his inculpatory statement shortly after his arrest (which he subsequently recanted), Capers’ defense turned on his denial of any interest in the gym bag or its contents. Compare State v. Corley, 201 Ga. App. 320, 321-322 (411 SE2d 324) (1991). Thus, counsel’s performance was not deficient for failing to move on Capers’ behalf to suppress the items seized in the search.

(b) Counsel was not deficient in failing to reserve his objection to a jury charge on parties to a crime because the evidence was sufficient to support the charge. Day v. State, 197 Ga. App. 875, 876 (2) (399 SE2d 741) (1990). To justify the charge some evidence that both Capers and Whitley “were concerned in the commission” of the alleged crime was required. Crumpton v. State, 213 Ga. App. 358, 361 (3) (444 SE2d 847) (1994). The evidence that both Capers and Whitley were co-defendants charged with the same offense, admitted prior involvement with controlled substances and denied any interest in the drugs satisfied this requirement.

In addition, because neither party called an expert witness, no evidence supported this charge. Thus, counsel’s failure to object to the charge on experts was error. Day, 197 Ga. App. at 876 (2). However, the charge stated that “the testimony of an expert, like that of any other witness, is to be received by you and given such weight only as you think it is properly entitled to receive. You are not bound or precluded by the opinion testimony of any witness, expert or otherwise.” We fail to find a reasonable probability that but for this charge, the trial’s outcome would have been different. See Jones v. State, 263 Ga. 835, 837 (2) (439 SE2d 645) (1994).

(c) Capers failed to point to any evidence supporting a charge on Miranda and custodial statements. Day, 197 Ga. App. at 876 (2). In the Jackson v. Denno hearing and at trial, neither Capers nor his counsel asserted that the incriminating statements were involuntary. On the contrary, they flatly denied that Capers made them. Thus, counsel’s failure to request the charge was not deficient.

(d) Capers failed to demonstrate any prejudice arising from counsel’s failure to obtain certified copies of Whitley’s prior drug convictions. During cross-examination, Whitley admitted to previous drug-related arrests and a conviction, and we fail to find a reasonable probability that but for the absence of the certified copies, the trial would have had a different result.

(e) Counsel’s failure to invoke the rule of sequestration at the Jackson v. Denno hearing resulted in Officers Rabien and Chapel hearing each other testify that Capers admitted the cocaine was for his personal use and that he had a habit. At trial, Officers Rabien, Chapel, and Bishop each testified that Capers made these inculpatory statements. Capers provided no evidence that Bishop attended the hearing. Furthermore, Rabien testified first at the hearing; therefore, his statement was untainted by Chapel’s testimony. In light of the testimony Bishop and Whitley provided, we find no reasonable probability that the result would have been different if counsel had invoked the rule of sequestration or neither Rabien nor Chapel testified at trial.

(f) Capers argues that counsel was ineffective for failing to object and move for a mistrial when a police officer testified about Capers’ prior marijuana conviction after successfully moving in limine to exclude this evidence. Because Capers failed to provide record citations to the admission of the evidence at issue or the motion in limine, we need not consider this issue. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 732 (8) (389 SE2d 251) (1989) (it is not the function of an appellate court to cull the record on behalf of a party); see Court of Appeals Rule 27 (c) (3) (i). Assuming nevertheless that the testimony was limited to an officer’s reference to Capers’ post-arrest admission of a prior misdemeanor marijuana conviction, we believe that, in light of the other properly admitted inculpatory evidence, the admission of the prior conviction testimony did not affect the trial’s outcome, though failing to object was clearly deficient. Compare Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983) (setting out the criteria for proper admission of other crimes evidence).

(g) In light of the evidence, Capers has failed to demonstrate a reasonable probability that, but for counsel’s failure to assert a best evidence rule objection to testimony about Whitley’s consent to search the car, the trial’s result would have been different.

(h) Capers has not established that his counsel failed to investigate the case and interview the arresting officers. The record shows that counsel filed discovery motions, studied the State’s file, and received access to the State’s physical evidence, although counsel was unsure whether he had interviewed all of the arresting officers. Thus, the record fails to demonstrate that counsel failed to adequately prepare for trial. Compare Cochran v. State, 262 Ga. 106, 107 (2), n. 2 (414 SE2d 211) (1992).

(i) The record likewise fails to establish that trial counsel was ineffective in preparing Capers for trial by keeping Capers ignorant of the basic legal issues in his case and the purpose of the hearings or his testimony. Although Capers claims counsel spent no more than one hour preparing him for trial, counsel testified that he met and corresponded with Capers multiple times. In any event, the amount of time counsel spent with Capers is not determinative of whether counsel rendered ineffective assistance. Easter v. Estelle, 609 F2d 756, 759 (5th Cir. 1980). The record shows that counsel informed Capers about standing to file a motion to suppress and conflict of interest, reviewed the State’s file with Capers, and discussed with Capers the factual basis for the charge. We fail to see a reasonable probability that but for counsel’s failure to discuss the case further with Capers, the trial’s outcome would have been different.

Although counsel’s representation may have been less than desirable, Capers failed to satisfy his burden of affirmatively showing by the record the Strickland criteria for ineffectiveness. Jacobson v. State, 201 Ga. App. 749, 753 (5) (d) (412 SE2d 859) (1991).

2. Capers argues that the conflict of interest arising from trial counsel’s dual representation of him and Whitley rendered his counsel ineffective. Specifically, Capers contends that (1) counsel’s cross-examination of Whitley was inadequate due to the conflict and (2) the severance of his trial from Whitley’s impaired his defense.

To establish ineffective assistance of counsel based upon conflict of interest, defendants must prove that their counsel “ ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Strickland, 466 U. S. at 692; Barnes v. State, 160 Ga. App. 232, 233 (286 SE2d 519) (1981). “Single representation of multiple defendants raises no per se presumption of conflict of interest or prejudice. [Cit.]” Hamilton v. State, 255 Ga. 468, 470 (2) (339 SE2d 707) (1986). “ ‘ “A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence.’” [Cits.]” Dill v. State, 193 Ga. App. 213, 214 (387 SE2d 424) (1989).

The record does not support the contention that counsel actively represented conflicting interests in this case after he withdrew his representation of Whitley. It reveals that counsel met twice with Whitley, who never retained him. At the time of trial, the relationship between counsel and Whitley had been completely severed. “ ‘ “(A)ctive representation of conflicting interests” connotes more than merely cross-examining a former client. . . .’ [Cit.]” Weeks v. State, 190 Ga. App. 373 (1), 374 (378 SE2d 895) (1989).

Capers likewise failed to demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. The record fails to support Capers’ argument that counsel’s prior representation of Whitley prevented a thorough cross-examination of Whitley about his ownership of the gym bag. During cross-examination, Whitley referred to exculpatory statements he allegedly made while in counsel’s office, which counsel denied hearing. Immediately thereafter, outside the jury’s presence, the court expressed concern about counsel’s former relationship with Whitley, observing that Whitley’s statements put counsel in “sort of a defensive position.” Whitley was then instructed not to refer to anything he and counsel had previously discussed.

The record is unclear as to whether counsel received privileged information from Whitley. Even if he did, however, that fact is not dispositive because Capers failed to demonstrate that his counsel’s prior relationship with Whitley limited the cross-examination or his counsel’s loyalty was divided. In fact, counsel vigorously cross-examined Whitley about his ownership of the shoes, the hair clippers in the gym bag, and his prior drug convictions. Although counsel admitted that the prior relationship prevented him from asking whether Whitley had told counsel the bag was his, counsel subsequently testified that he lacked sufficient information to impeach Whitley about their previous conversations and could not say that Whitley admitted the gym bag was his. This evidence is not sufficient to establish that the defense was actually impaired by counsel’s prior representation of Whitley.

Capers also failed to demonstrate that his defense was actually impaired by the severance of his trial. Nothing prevented Whitley from offering the identical testimony incriminating Capers at a joint trial.

Furthermore, with regard to Capers’ contention that counsel was ineffective for failure to move for mistrial after the jury learned of counsel’s prior representation of Whitley during Whitley’s cross-examination, Capers failed to provide argument or legal authority. Consequently, we deem that issue abandoned. Court of Appeals Rule 27 (c) (2).

3. Capers argues that the trial court erred in granting Whitley’s unopposed motion to sever which was based solely on conflict of interest.

OCGA § 17-8-4 grants courts the discretion to try two or more jointly indicted defendants in noncapital cases jointly or separately. Because Whitley’s statements clearly incriminated Capers, severance was not an abuse of discretion. Baugher v. State, 212 Ga. App. 7, 10 (1) (a) (440 SE2d 768) (1994) (relying on Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968)).

4. Capers argues that he was denied due process because the jury was not informed of the State’s intention to move for nolle prosequi on Whitley’s behalf after Whitley testified.

The record clearly shows that no agreement to seek nolle prosequi existed between Whitley and the State at trial. Therefore, no disclosure was possible, much less required. See Giglio v. United States, 405 U. S. 150, 153 (92 SC 763, 31 LE2d 104) (1972).

5. Capers argues that the evidence is insufficient to support his conviction.

The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). On appeal, defendants no longer enjoy a presumption of innocence. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). The pertinent elements of trafficking in cocaine are knowing possession of twenty-eight grams or more of cocaine or of any mixture with a purity of ten percent or more of cocaine. OCGA § 16-13-31 (a) (1) (A).

Whitley testified that the gym bag belonged to Capers. Officers Bishop, Rabien, and Chapel each testified that Capers admitted to possessing the cocaine. Officer Bishop testified that the cocaine seized was 86 percent pure and weighed 68.4 grams. This evidence was sufficient to support the conviction beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Capers provides citations to the record which clarify the errors involved in the admission of evidence of his prior marijuana conviction after the court granted his motion in limine to exclude it. We did not substantively address the admission of this character evidence in the opinion because Capers’ argument on the issue failed to provide citations to the record. See Division 1 (f). Although Capers cited to the trial record on two pages in the fact section of his 50-page brief, these references to the record were inadequate. Court of Appeals Rule 27 (c) (3) (i) requires that each enumerated error be supported in the brief by specific reference to the record. See Court of Appeals Rule 27 (c) (2).

Decided February 16, 1996

Reconsideration denied March 28, 1996

Phyllis Miller, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

Having nevertheless reviewed the record, we find it clearly demonstrates trial counsel’s deficiency. For example, the record shows that the State, after agreeing to the exclusion of the prior conviction, deliberately asked its first witness about Capers’ prior conviction. Capers’ trial counsel not only failed to object or move for mistrial, but actually questioned a police witness on the issue himself. The admission of this prejudicial evidence of bad character would have been a valid ground for a mistrial had trial counsel made such a motion, because the State directly and intentionally elicited the excluded evidence from the State’s first witness and the only conceivable purpose for admitting the evidence was to suggest to the jury that Capers was guilty of the offense charged because of his bad character. Perry v. State, 154 Ga. App. 559, 560-561 (2) (269 SE2d 63) (1980); see Bryant v. State, 204 Ga. App. 856, 857 (3), 860 (420 SE2d 801) (1992).

However, the three police officers’ trial testimony that Capers admitted to them at the time of his arrest that the cocaine was for his own personal use and he had a habit forecloses a finding of ineffectiveness despite the fact that no physical evidence linked Capers to the cocaine. We cannot conclude that there was a reasonable probability that the result of the trial would have been different but for the admission of the evidence of Capers’ prior marijuana conviction. Strickland v. Washington, 466 U. S. 668, 692 (104 SC 2052, 80 LE2d 674) (1984).

Motion for reconsideration denied.

       We observe with disappointment that the State’s woefully inadequate brief fails to respond to most of these problematic issues. The people have not been well served by the State’s languid efforts.

       This rule applies in Georgia when the defendant raised no objection at trial. Blasengame v. State, 187 Ga. App. 501 (1), 502 (370 SE2d 797) (1988); compare Mitchell v. State, 261 Ga. 347 (2) (405 SE2d 38) (1991).


text:
    A95A2270.
    LAGRONE v. TELECASH INVESTMENTS, INC.
    (470 SE2d 445)
   Ruffin, Judge.

Telecash Investments, Inc. (“Telecash”) sued Glenn Lagrone for amounts due on a promissory note. Lagrone personally guaranteed the note, which was executed by Seabrook Publications, Inc. (“Sea-brook”). The trial court granted Telecash’s motion for summary judgment, and Lagrone appeals from that order. For reasons which follow, we reverse.

The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). There it was held that “[t]o 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). . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id.

In his answer to Telecash’s complaint, and in his response to Telecash’s motion for summary judgment, Lagrone asserted that OCGA § 48-6-32 barred the action because Telecash wilfully failed to pay the intangibles tax on the note. In granting Telecash summary judgment, the court implicitly rejected Lagrone’s contention that the instrument at issue was subject to the intangibles tax.

On appeal, Lagrone reiterates his argument that Telecash’s wilful failure to pay $28 in intangibles taxes on what he characterized as a corporate debenture, rather than a promissory note, bars its recovery under OCGA § 48-6-32.

OCGA § 48-6-32 provides that “[w]illful failure to return any property to the commissioner for taxation as required by this article shall be a bar to any action upon the property in any court and may be pleaded as a complete defense to the action, but the holder of the property may at any time pay all taxes. . . . Payment in full shall relieve the holder from the penalty provided in this Code section.” Intangible property that is subject to taxation, includes “notes not representing credits secured by real estate” and “debentures of all corporations.” OCGA § 48-6-21 (4) and (5), respectively.

Here, there is no evidence that the note was secured by real property. Consequently, the instrument, as it relates to Telecash, is a note not representing credits secured by real estate, which under OCGA § 48-6-21 (4) is subject to the intangibles tax. Reeder v. Merrill Lynch &c. of Ga., 180 Ga. App. 317, 318 (1) (349 SE2d 31) (1986). Thus, if Telecash wilfully failed to pay the intangibles tax on the note, its suit against Lagrone would be barred under OCGA § 48-6-32. Springer v. Gaffaglio, 190 Ga. App. 272 (1) (378 SE2d 691) (1989); Peters v. Thomason, 157 Ga. App. 513 (2) (277 SE2d 798) (1981).

Decided March 6, 1996

Reconsideration denied March 28, 1996.

Maurice J. Bernard III, for appellant.

Freedman & Sinowski, Thomas C. Sinowski, Marc H. Bardack, Aaron Stein, for appellee.

Telecash presented evidence showing Seabrook was in default of its obligations under the note and that Lagrone had not paid the outstanding balance, thus setting forth a prima facie case for summary judgment. In his response, Lagrone rebutted the prima facie case by presenting evidence showing that Telecash was obligated to pay the intangibles tax on the note and that it had failed to do so. The burden then shifted to Telecash to prove it was exempt from the tax. Allera Corp. v. Derby Cycle Corp., 210 Ga. App. 564 (2) (436 SE2d 753) (1993). The trial court record shows that in its motion for summary judgment Telecash never addressed Lagrone’s contention that the failure to pay intangibles tax barred the claim, despite the fact that Lagrone properly raised the issue in his answer. Therefore, genuine issues of material fact remain to be tried on Telecash’s failure to pay intangibles tax on the note, and the trial court erred in granting Telecash’s motion for summary judgment.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.


author: Smith, Judge.

text:
    A95A2394.
    INLAND CONTAINER CORPORATION et al. v. PAULDING COUNTY BOARD OF TAX ASSESSORS.
    (470 SE2d 702)
   Smith, Judge.

Appellants Inland Container Corporation and the Jones Com- I pany together own approximately 30,000 acres of timberland in Paul-ding County. This case is an appeal arising out of valuation of appellants’ land for ad valorem tax purposes.

In compliance with an order from the revenue commissioner to correct deficiencies in the valuation of large tract properties within Paulding County’s tax digest, appellee Paulding County Board of Tax Assessors (Paulding County) contracted with Tri-State Mapping and Appraisal Service to conduct a mass reappraisal of approximately 1,500 large acreage rural parcels for the 1992 tax year. Tri-State developed a pricing schedule used to value large acreage tracts, including appellants’ properties, in Paulding County for tax years 1992-1995. The schedule applied to tracts that were for residential, agricultural, and timber uses. Tri-State developed the schedule by investigating a list of 50 sales of large tract rural property to determine whether any could be used as comparable sales for reappraisal purposes. From this list, Tri-State chose 20 sales for use in determining fair market value of large tract rural parcels in Paulding County. The per-acre values of the transactions were used as a guide in the division of the county into four regions. Factors such as location and access were considered in categorizing the land and assigning values. Of the twenty sales, five tracts were later developed into subdivisions, but at the time of the appraisal, the tracts had not been developed. One other tract was purchased by a development company for eventual subdivision. Of the remaining 14 tracts, the chief appraiser for Paulding County testified that the use of the properties at the time of sale continued after the sale. Although seven of the remaining tracts were used for home construction, the chief appraiser opined that construction of a home on a large acre tract does not prevent the continued use of the property for timberland or other agricultural production. When the mass reappraisal was completed in 1992, it was approved by the Department of Revenue for uniformity and equalization.

The reappraisal caused a sharp increase in appellants’ tax assessments. They appealed the assessment of 13,000 acres in 69 separate parcels to the Superior Court of Paulding County. The trial court, sitting as finder of fact, found that “the average assessed value of appellants’ property at issue increased from $767 per acre (including timber) in 1991 to $1,112 per acre (excluding timber) in 1992” but affirmed the tax assessment. On appeal, appellants primarily contend the trial court and the tax assessor erroneously failed to consider “existing use” in connection with the assessment of their land.

1. We agree with the trial court that determining the fair market value of property “is difficult enough; otherwise, there would be no need for real estate agents or brokers, and everyone would know the value of their real property as easily as looking up a stock exchange quote. Now, as far as taxation is concerned, real estate value has been further complicated by ‘considering’ the four criteria in OCGA § 48-5-2 (3) (B).” Under that statute, the tax assessor must consider, inter alia, the existing use of property and “[a]ny other factors deemed pertinent in arriving at fair market value.” OCGA § 48-5-2 (3) (B) (ii) and (iv).

Appellants contend the trial court failed to consider the present value or existing use of their timberland. We disagree. As noted by the trial court and in Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557, 559 (271 SE2d 691) (1980), “existing use” must be employed as a “yardstick” with which to measure fair market value. Here, unlike Dotson, some evidence exists that existing use was considered in arriving at fair market value. The trial court found that “[e]xisting use was considered [by the tax assessor] although apparently not given as much weight as appellants think it deserves” and also that “existing use appears to be built into appellees’ land value tables.”

The record supports these findings. The vice president of TriState testified that the valuation performed in Paulding County was based on both existing use and highest and best use. Although he stated that his determination of fair market value was based on highest and best use, he agreed that existing use was taken into account in “classing the use of the property being appraised.” Further, the large tract pricing schedule developed by Tri-State and used in assessing ad valorem taxes reflects a consideration of existing use. The land on each tract was categorized into seven separate use divisions: crop land; pasture land; woodland; pond; mined; orchard; and easement. The “land valuation analysis” prepared by Tri-State also recited that existing use was a factor used in classifying the property for valuation. The schedules developed by Tri-State addressed location, access, and property type, including seven kinds of access and twenty-two types of property use. This constituted some evidence that existing use was considered in valuation of appellants’ property.

We do not agree with appellants that reversal is required under Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 (318 SE2d 643) (1984). This case is indeed similar to Sibley, as both cases involve valuation of rural land where agricultural (or timber) sales were rare. In Sibley, the tax assessors erroneously considered, as comparable sales, prices for sales of rural land “which did not exclude sales for ‘special’ or ‘speculative’ purposes.” Id. at 69. The only evidence of purported “comparable sales” was evidence of sales “for industrial, commercial, or housing developments . . . [which] reflect the speculative value of the land — or its highest and best use.” Id. at 68. See Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (350 SE2d 790) (1986).

Here, some evidence was presented that the use of 14 out of the 20 tracts continued after the sale and that the sales therefore were not all for speculative purposes. The vice president of Tri-State testified that he believed all 20 sales to be comparable. Appellants complain about the construction of residences on seven of those tracts and assert that the remaining sales contain “serious defects.” They contend at least five did not meet the accepted definition of a comparable sale: an arm’s length transaction between unrelated parties, free of duress, for fair market value. They point out that two sales were between family members and claim that one was a transfer under duress. Another was acquired for nearly twice its market value by a landowner desperate to purchase the land from obnoxious neighbors, and another was a sale for approximately 25 percent of fair market value to the State of Georgia for a wildlife management area. That these sales were not timberland sales is not fatal to Paulding County’s assessment; no requirement in Georgia law demands that comparable sales be identical. See Hawkins v. Grady County Bd. of Tax Assessors, supra at 835.

Further, appellants complain of the trial court’s conclusion that the subdivisions and houses “were actually developed within a relative [sic] short period of time after sale and do not appear to be the highly speculative or long term investment properties so criticized by the appellate courts in the 1970’s.” Although appellants take issue with the trial court’s definition of “speculative,” we cannot say as a matter of law that all these sales fell into the categories of sales condemned in Sibley — commercial, industrial, or housing developments. The trial court sits as a finder of fact, and we judge only the sufficiency of the evidence, not its weight. See Hawkins v. Grady County Bd. of Tax Assessors, 192 Ga. App. 416, 417 (2) (385 SE2d 305) (1989). Nor may we accept or reject any opposing methods of appraisal presented at trial. Id. Here, some evidence was presented that at least 14 sales used as comparable sales to assess appellants’ land were sales of large acreage lots, not used for commercial, industrial, or housing development purposes. Because some evidence exists that existing use was considered in classifying the properties and some evidence exists that “comparable sales” were used to assess the value of appellants’ land, the evidence did not demand a finding that the assessors “did not consider use of the property in question or the property of all others similarly situated.” Ayers v. Douglas County Bd. of Tax Assessors, 162 Ga. App. 224, 225 (2), 226 (291 SE2d 84) (1982).

Moreover, although appellants complain about the value attributed to their land, they presented no evidence of fair market value. As the trial court aptly observed, “Appellants’ expert witness ... a forestry consultant and timberland appraiser, did not attempt to determine fair market value. As he puts it, Paulding County is a tough market to value because it is a thin market. There have basically been no sales of timberland to anyone other than developers. He only attempted to determine its existing use value as timberland which in his opinion is $400.00 per acre. He would not compare the merits of existing use to highest and best use merely stating that it should be heavily weighted toward existing use.” The trial court found, and we agree, that appellants had the burden to establish fair market value. See Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499, 500 (295 SE2d 170) (1982). Because appellants failed to meet this burden and because some evidence exists that existing use was considered in assessing appellants’ land, we affirm the rulings of the trial court.

Decided March 12, 1996

Reconsideration denied March 28, 1996

Shaw, Maddox, Graham, Monk & Boling, Daniel M. Roper, for appellants.

Vinson, Talley, Richardson & Cable, J. Glenn Richardson, Michael R. Wing, for appellee.

2. Appellants also complain about the trial court’s findings that the taxpayer’s burden is to prove the value of his property and that “[i]t is not sufficient to simply show that the methodology used by the tax assessors may be flawed.” While they agree that the taxpayer must prove fair market value, they argue that value and methodology are separate issues and a taxpayer need not prove value in order to prove that a tax assessor’s methodology is improper. To the extent that the ruling implies that a taxpayer cannot raise methodology on appeal from the assessment, we agree. OCGA § 48-5-311 (e) (1) provides that a taxpayer may appeal from an assessment “as to matters of taxability, uniformity of assessment, and value.” We do not agree, however, that this finding, even if arguably erroneous, is ground for reversal. The “methodology” about which appellants complain is the alleged failure to consider existing use in the valuation of their properties. As held in Division 1, however, the record supports the trial court’s ruling that existing use was factored into the valuation of appellants’ properties. We find no merit in this contention.

3. Appellants contend the trial court erroneously found that the passage of the Paulding County Tax Digest each year since the reassessment “would indicate that the reassessments were at fair market value.” Paulding County acknowledges, and we agree, that acceptance by the Department of Revenue of the tax digest might not “be a ringing endorsement of the values derived therefrom.” However, this statement by the trial court appears to have been merely a passing comment, not a finding on which it based its opinion. The court’s affirmance of the assessments was based on its finding that existing use was considered in valuation. This finding, as held in Division 1, was supported by the record. Therefore, error in this statement, if any, was harmless. A judgment right for any reason will be affirmed. See, e.g., Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). Sufficient other evidence supports the trial court’s holding, and we find no merit in this contention.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A2425.
    TURNBULL v. NORTHSIDE HOSPITAL, INC.
    (470 SE2d 464)
   Pope, Presiding Judge.

Plaintiff Emily Turnbull brought suit against defendant North-side Hospital, Inc. for fraud and intentional infliction of emotional distress. Defendant moved for summary judgment on both claims. The trial court granted defendant’s motion, and plaintiff appeals. Concluding that the trial court did not err, we affirm.

Construed most favorably to plaintiff, the record shows that plaintiff worked as a legal secretary for attorneys Regina Jenkins and Catherine Butler in defendant’s legal department. When Jenkins went on maternity leave, Butler started an internal investigation regarding alleged misconduct on Jenkins’ part. On August 11, 1993, defendant’s vice president of human resources, Heather Fritzler, contacted plaintiff and requested that she cooperate in the investigation. In return for this cooperation, plaintiff contends that defendant promised that plaintiff’s identity would be kept permanently confidential. On August 18, 1993, before the investigation was completed, however, Fritzler advised plaintiff that her name would be disclosed when Jenkins was confronted. Nevertheless, plaintiff continued to cooperate in the investigation. The record shows that when defendant confronted Jenkins, plaintiff’s identity was in fact disclosed to Jenkins. Plaintiff argues that defendant perpetrated a fraud against her in making and then failing to keep its promise of confidentiality.

Following the investigation, Jenkins returned to the legal department, and for a short period, plaintiff continued to work as Jenkins’ secretary. During this time, plaintiff claims that she was subjected to extreme and outrageous conduct by Jenkins, and that she suffered severe emotional distress as a result. Defendant later transferred plaintiff to another job with equal benefits and pay.

1. Plaintiff contends that the trial court erred in granting summary judgment to defendant on her fraud claim. We disagree. “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. (Cit.) For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989).” (Punctuation omitted.) Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 700-701 (2) (a) (452 SE2d 140) (1994).

In this case, before the investigation was completed, Fritzler specifically told plaintiff that her identity would not be kept confidential permanently. Yet after being made aware that no permanent offer of confidentiality existed, the record demonstrates that plaintiff continued to actively participate in the investigation. Specifically, she gathered and provided additional documents for the investigation; prepared statements; and even drafted an affidavit for her own signature, in which she expressed a bitter resentment toward Jenkins. Moreover, we note that plaintiff was required from the beginning to participate in the investigation as set forth in her employee handbook. Under such circumstances, we hold that plaintiff cannot demonstrate that she justifiably relied on defendant’s alleged promise of permanent confidentiality in cooperating in the investigation. Inasmuch as the element of justifiable reliance is missing in this case, defendant was entitled to judgment in its favor on the fraud claim as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. We also reject plaintiff’s contention that the trial court erred in granting summary judgment to defendant on her claim of intentional infliction of emotional distress. Although the law in this area is still developing and its ultimate limits have not yet been determined, the cases thus far decided have found liability for intentional infliction of emotional harm only when a defendant’s conduct has been extreme and outrageous. Moses v. Prudential Ins. Co., 187 Ga. App. 222, 224 (369 SE2d 541) (1988); see Kornegay v. Mundy, 190 Ga. App. 433 (1), 434 (379 SE2d 14) (1989). Such conduct must be “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Citations and punctuation omitted.) Yarbrough v. SAS Systems, 204 Ga. App. 428, 429 (3) (419 SE2d 507) (1992).

Whether conduct rises to the level set forth above is a question of law for the trial court. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). Some claims simply do not rise to the requisite level of outrageousness and egregiousness as a matter of law, while others, in which it is shown that reasonable persons could differ as to whether the conduct was sufficiently outrageous and egregious, must be left for a jury to resolve. Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). We conclude that this case falls into the first category.

Although it is true that Jenkins was in a position of control and exercised authority over plaintiff, the conduct attributed to Jenkins, taken as true, simply does not rise to the requisite level of outrageousness and egregiousness as a matter of law. Plaintiff has admitted that during the four occasions complained of, Jenkins never cursed or made any derogatory comments about her. Plaintiff also testified that Jenkins never made any physical or verbal threats. At most, Jenkins’ alleged conduct in glaring at plaintiff with purported anger and contempt, crying, slamming doors, and snatching phone messages from plaintiff’s hand was childish and rude. But it is not the type of behavior for which the law grants a remedy. “The liability for intentional infliction of emotional distress clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to . . . occasional acts that are definitely inconsiderate and unkind.” (Citation and punctuation omitted.) Kornegay, 190 Ga. App. at 434-435. Additionally, there is no evidence in this case that defendant or Jenkins knew that plaintiff was particularly sensitive and susceptible to injury from the conduct in question. See Williams v. Voljavec, 202 Ga. App. 580, 582 (415 SE2d 31) (1992) (holding that a defendant’s awareness of a plaintiff’s particular susceptibility is a factor to be considered).

Decided March 13, 1996

Reconsideration denied March 28, 1996

Weinstock & Scavo, Michael Weinstock, Louis R. Cohan, for appellant.

Bondurant, Mixon & Elmore, Jane E. Fahey, Michael B. Terry, for appellee.

Because we find no actionable conduct in this case, we conclude that the trial court did not err in granting summary judgment to defendant on plaintiff’s claim of intentional infliction of emotional distress.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A2488.
    LEE v. SATILLA HEALTH SERVICES, INC.
    (470 SE2d 461)
   Ruffin, Judge.

In this medical malpractice action, Mrs. Azalee Lee sued Dr. Clyde Tanner and Satilla Health Services, Inc. (“the hospital”) for Dr. Tanner’s failure to diagnose she was suffering from a stroke when she arrived at the hospital’s emergency room. Mrs. Lee alleged that Dr. Tanner’s negligence could be imputed to the hospital. She also alleged that the hospital negligently selected and retained Dr. Tanner to provide services in the emergency room given the number of lawsuits that have been filed against him. The hospital moved for summary judgment on four grounds, and the trial court granted the motion without specifying the grounds upon which its order was based. On appeal, Mrs. Lee contends only that the trial court erred in granting summary judgment on the issues of agency and proximate cause. Because we find that material issues of fact remain with respect to those issues, we reverse.

1. Mrs. Lee contends the trial court erred in granting the hospital summary judgment because material issues of fact remain as to whether Dr. Tanner was the hospital’s employee. The hospital asserts that its contract with Dr. Tanner affirmatively established that he was an independent contractor and that nothing in the contract seeks to control the time, manner or method by which he treated patients. See Hodges v. Doctors Hosp., 141 Ga. App. 649 (2) (234 SE2d 116) (1977). The contract, however, is nowhere to be found in the record. Moreover, the labels ascribed by a contract are not determinative of the parties’ legal relationship. Gray v. Vaughn, P.C., 217 Ga. App. 872, 874 (2) (460 SE2d 86) (1995). “The concern is with essence, not nomenclature.” Stewart v. Midani, 525 FSupp. 843, 847 (N.D. Ga. 1981).

In Midani, a medical malpractice case involving this very issue, the court referenced an earlier decision, Harris v. City of Chattanooga, 507 FSupp. 365 (N.D. Ga. 1980), in which it “canvassed nearly fifty decisions of the Georgia appellate courts in an effort to distill the essence of the employee-independent contractor controversy.” Midani, supra at 849. The court articulated several factors which were frequently considered by the Georgia courts in making that determination. We will consider those factors applicable to this case: (1) The employer’s right to make additional plans and specifications; to impose its will in lieu of the contract’s provisions; and to direct the employee’s work step by step. In this case, Dr. Tanner testified that the hospital did not tell him how to perform a physical exam or diagnose a patient’s condition, which would “indicate [ ] that [he] was an independent contractor.” Id. But Dr. Tanner also testified that he could not refuse an order to do “such and such” from the hospital administrator. Whether such an order could affect the manner in which Dr. Tanner practiced medicine is unknown. Given the potentially conflicting nature of these statements on the issue of control, we find that a jury issue is raised with respect to this factor of the analysis. (2) Contracts to perform a service rather than to accomplish a task. “The latter are indicative of an independent contractor relationship, the former of an employee-employer relationship.” Id. Because Dr. Tanner was obligated to provide 24-hour a day coverage in the emergency room, “i.e., to provide that service,” this factor indicates he was the hospital’s employee. Id. (3) The right of the employer to inspect the employee’s work. Since there is no evidence of record that the hospital had such authority, we find that Dr. Tanner would be classified as an independent contractor under this factor. (4) Does the employer or the employee supply the equipment? Dr. Tanner testified that the hospital furnished the medical supplies and equipment such as CAT scans and x-ray machines that he used, as well as the drugs which were administered to patients in the emergency room. This would suggest that Dr. Tanner was an employee. See Daughtrey v. Honeywell, Inc., 3 F3d 1488 (11th Cir. 1993). (5) The nature or skill of the employee’s work. “The more skilled the employee, the more likely he is an independent contractor.” Midani, supra. Thus, Dr. Tanner would likely be an independent contractor under this test. (6) The employer’s right to control the employee’s time. Here, the hospital demanded that Dr. Tanner provide coverage 24 hours a day, but did not dictate his personal schedule. This factor indicates that Dr. Tanner was an independent contractor. Id.; Newton County Hosp. v. Nickolson, 132 Ga. App. 164, 167 (2) (207 SE2d 659) (1974). (7) The method of payment. If an employee is paid “for the entire task performed, this evidences an independent contractor relationship. If, however, . . . the employee is paid by the hour, that exemplifies an employee-employer relationship.” Midani, supra. See also Nickolson, supra; Whitaker v. Zirkle, 188 Ga. App. 706, 708 (2) (374 SE2d 106) (1988). Because Dr. Tanner was paid a salary rather than an hourly wage, this bodes in favor of an independent contractor relationship in this setting. However, as the Midani court pointed out in its own analysis of the most significant Georgia appellate case on the subject, the basis of the pay, i.e., whether the hospital paid the physician, is more important than “the employer’s right to choose the scalpel to be used or the location of the incision.” Midani, supra at 849; Hodges, supra. Here, the hospital, rather than an emergency services group, paid Dr. Tanner. This indicates that he was an employee.

Given that the foregoing evidence does not conclusively establish whether Dr. Tanner was an employee or an independent contractor, summary judgment on this basis was not appropriate.

2. Mrs. Lee also contends the trial court erred in granting summary judgment because a material issue of fact remains as to whether Dr. Tanner’s treatment of her in the emergency room was the proximate cause of her injury. We agree.

In her complaint, Mrs. Lee alleged that Dr. Tanner negligently sent her home from the emergency room and “prevented the administration of therapies that could have prevented the progression of the stroke.” Her expert witness, Dr. Nichols, testified that Dr. Tanner’s evaluation of Mrs. Lee and lack of treatment fell below the acceptable standard of care. Citing Goggin v. Goldman, 209 Ga. App. 251 (433 SE2d 85) (1993), the hospital contends that summary judgment was nonetheless appropriate because “[n]egligence alone is insufficient to sustain recovery. It must be proven that the injury . . . proximately resulted from [the failure to exercise the requisite] 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.” (Citations and punctuation omitted.) Id. at 252-253. Accordingly, the hospital argues that despite Dr. Nichols’ testimony that Dr. Tanner’s care was substandard, it has no liability because there has been no proof to a reasonable degree of medical certainty that Mrs. Lee’s outcome would have been different had Dr. Tanner diagnosed her stroke in the emergency room.

We believe the hospital misses the point. It focuses entirely upon isolated excerpts in Dr. Nichols’ deposition where, in response to questioning by the hospital, he agreed that there are no “scientific data” to prove that early diagnosis and intervention would have changed Mrs. Lee’s prognosis. What the hospital loses sight of is Dr. Nichols’ overwhelming testimony that in his experience and that of his colleagues, proper diagnosis and treatment can change the patient’s course and outcome and that clinical research trials are currently being conducted in the scientific community in order to confirm what he and his colleagues already believe to be a fact: “There is evidence that we actually can make a difference [in a stroke patient’s outcome] but that’s based on the experimental trials that we’re going through now. And while many of us have very strong feelings that you should intervene . . . there has been no scientific proof [of] this. . . . In the last few years people have begun to recognize that ... if we can intervene in the first few hours . . . that we can either reverse the process or more typically prevent progression of the process. . . . Most of us that take care of strokes think that if we catch them at that point [where Mrs. Lee was when she arrived] we can prevent them from getting worse. ... It is possible that emergency treatment early in the morning would have prevented her stroke from getting worse. There is no proof . . . that would have happened. But I think it certainly would have given her a better chance of not progressing. . . . Most of us with stroke [patients] think that we can potentially turn them around if we catch them early . . . , and that’s why we’re involved in these [research] trials. . . . We’ve got a lot of hope [that] we can prevent progression by administration of drugs, but those therapies have not been rigorously proven to be effective.”

In fact, Dr. Nichols testified that it is precisely because his opinion on the subject has not yet been adequately tested that it is an opinion, not a medical certainty. Because of that explanation, we do not believe the rule in Goldman can be applied so rigidly so as to take proximate cause away from the jury. In other words, Dr. Nichols’ testimony that he has no scientific proof that appropriate treatment by Dr. Tanner would have changed Mrs. Lee’s outcome cannot be considered in isolation when evaluating whether Mrs. Lee has met her burden in opposition to summary judgment. Rather, it must be considered in tandem with Dr. Nichols’ explanation of that statement: that is, because his strong personal belief that with proper intervention “we can prevent [patients] from getting worse” has not been adequately tested, it is not a medical certainty. Because we find that the two must be considered together and in the context of Dr. Nichols’ other testimony about his experience and that of his colleagues, we cannot say that Mrs. Lee failed to “prove that [her] injury . . . proximately resulted from [Dr. Tanner’s lack] of care or skill.” (Citations and punctuation omitted.) Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269) (1978). Accordingly, summary judgment on that basis was inappropriate.

Decided March 13, 1996

Reconsideration denied March 28, 1996

Benjamin Smith, Jr., Leon A. Wilson II, for appellant.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., Robert W. Lamb, for appellee.

3. Mrs. Lee does not enumerate as error the grant of summary judgment on her claim that the hospital negligently selected and retained Dr. Tanner. Nor has she offered any evidence to support that claim. Thus, the trial court did not err in granting the hospital summary judgment on this issue.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A2526.
    COOPER et al. v. CORPORATE PROPERTY INVESTORS et al. W. B. JOHNSON PROPERTIES et al. v. CORPORATE PROPERTY INVESTORS et al.
    A95A2527.
    (470 SE2d 689)
   Ruffin, Judge.

Margaret and Herbert Cooper sued Corporate Property Investors, Pembroke Management, Inc. and Events Elements, Inc. for injuries sustained when Mrs. Cooper tripped over a board at Independence Day festivities being held in the Lenox Square Mall parking lot. The trial court granted summary judgment to all three defendants, and the Coopers appealed. For reasons which follow, we affirm.

“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 non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of an appeal from summary judgment is de novo. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

In their complaint, the Coopers alleged Mrs. Cooper tripped on a board placed over a temporary cable laid on the pavement in preparation for the festivities. The Coopers alleged that Corporate Investors, the owner of Lenox Square Mall, Pembroke Management, the mail’s property manager, and Events Elements, the event coordinator, were negligent in permitting the cable and board to be placed in a location where they knew or should have known that pedestrians might trip over it.

Corporate Investors and Pembroke Management moved for summary judgment asserting that they had not breached their duty of care to Mrs. Cooper and that she failed to exercise ordinary care for her own safety. Events Elements moved for summary judgment asserting that (1) it did not own or control the property where Mrs. Cooper fell, (2) it did not have any knowledge of the claimed hazard, and (3) Mrs. Cooper failed to exercise ordinary care for her own safety.

Viewed in a light most favorable to the Coopers as the nonmoving parties, the record shows that at the time of her injury, Mrs. Cooper was the public relations director for W.B. Johnson Properties, d/b/a Ritz Carlton Buckhead (“Ritz Carlton”). In her deposition, Mrs. Cooper testified that she and other Ritz Carlton managers received an invitation from “Lenox Square” to attend the festivities, including an invitation to the VIP tent. Mrs. Cooper stated that her primary purpose for attending the event was to direct the photographing of the Ritz Carlton orchestra, which was performing as part of the festivities. Accordingly, Mrs. Cooper met with a photographer at approximately 6:30 p.m. and directed him to take pictures of the orchestra and the crowd. When the photography session ended, Mrs. Cooper decided to visit the VIP tent. As Mrs. Cooper walked through a large crowd on her way to the tent, her “foot caught on a wooden board which had been placed on the ground” and she fell, sustaining the injuries which are the subject of her complaint. In her affidavit, Mrs. Cooper stated that the board she tripped over was covering wires, “was not painted with any bright color, and [she] observed no other warnings or indications that the board was present.” She stated that in the area where she fell, people were standing, sitting on chairs and lying on blankets which they had placed in the parking lot. Mrs. Cooper further stated that because it was so crowded, she had to walk with her attention on the crowd “in order to pick [her] way through the crowd and get to the VIP tent.”

In Case No. A95A2526, the Coopers appeal the grant of summary judgment to all three defendants. In Case No. A95A2527, Ritz Carlton, which intervened pursuant to its subrogation rights upon providing Mrs. Cooper workers’ compensation benefits, likewise appeals the grant of summary judgment to the three defendants. Because identical issues are raised in both appeals, we consider them together.

The Coopers contend that because Mrs. Cooper was an invitee at the time of her injury, the defendants owed her a duty to exercise ordinary care in keeping the premises and approaches safe. See OCGA § 51-3-1. Corporate Investors, Pembroke Management and Events Elements argue that Mrs. Cooper was a licensee and that they therefore were only liable for a wilful and wanton injury. See OCGA § 51-3-2. While the plaintiffs and defendants correctly characterize the duty of care owed by an owner or occupier of land to invitees and licensees, it is a distinction without a difference in this case. This is so because “it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a . . . hidden peril on one’s premises. Thus[,] as to a licensee[,] ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. After the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited.” (Citations, punctuation and emphasis omitted.) Wade v. Mitchell, 206 Ga. App. 265, 267 (2c) (424 SE2d 810) (1992). In such cases, “ ‘[a] possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved. . . .’ [Cit.]” London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (2) (267 SE2d 214) (1980). The test for liability here is the proprietor’s superior knowledge of the hazard. Sailors v. Esmail Intl., 217 Ga. App. 811 (1) (459 SE2d 465) (1995).

In light of Mrs. Cooper’s testimony that there was a huge crowd present at the time of her fall, it is clear that all three defendants must have been aware that people attending the event were present in the area. Accordingly, we find that even if Mrs. Cooper was a licensee when she fell, the defendants owed her the same duty as they would have owed if she were an invitee.

We must next determine whether any of the defendants had superior knowledge of the board over which Mrs. Cooper tripped.

An employee of Pembroke Management acknowledged that the company managed the mall for Corporate Investors and testified that after the various contractors finished setting up for the event, she inspected the entire area to ensure that it was clean and free of debris. While the employee stated that she saw cable coverings in the area, they were all painted fluorescent orange and did not otherwise meet the description of the board over which Mrs. Cooper tripped.

Events Elements acknowledged that it was the event coordinator. In this capacity, Events Elements assisted in obtaining bids for such things as lighting, sound, stages and tents needed for the event. While Events Elements also coordinated activity on the stage, its owner testified that the company had no responsibility for anything that occurred off the stage. Other contractors hired for the event installed the lighting and sound equipment, including the cables and cable covers over which Mrs. Cooper tripped. In light of this evidence, we find that all three defendants met their burden of showing an absence of superior knowledge.

In responding to this testimony, the Coopers were required to present evidence giving rise to a triable issue of fact concerning the defendants’ superior knowledge. Lau’s Corp., supra. Although they assert in their brief that Corporate Investors and Pembroke Management knew or should have known about the board, the Coopers cite no evidence supporting this assertion. Likewise, despite the Coopers’ allegations that Events Elements had greater responsibilities than the foregoing evidence showed, they again fail to cite any evidence supporting this assertion. In sum, while it is obvious that someone placed the board on the ground, “[a] landowner is not an insurer of the safety of those who venture upon his land whether they are in trespasser, licensee or even invitee status.” Wade, supra at 267. Because the Coopers have not directed us to any evidence of record showing that any of the defendants placed the board on the ground or had superior knowledge of the defect, there is no genuine issue as to this essential element of the Coopers’ negligence claim. Thus, that claim “tumbles like a house of cards.” Lau’s Corp., supra. It follows that the trial court did not err in granting summary judgment to all three defendants.

Decided March 7, 1996

Reconsideration denied March 28, 1996.

Doffermyre, Shields, Canfield & Knowles, Kenneth S. Canfield, R. Hutton Brown III, for appellants (case no. A95A2526).

Jerome J. Stenger, for appellants (case no. A95A2527).

Drew, Eckl & Farnham, Peter A. Law, John P. Reale, Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, William W. Horlock, Jr., for appellees.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A2676.
    BAXTER et al. v. COHEN.
    (470 SE2d 450)
   Pope, Presiding Judge.

In this medical malpractice case, plaintiffs Susan and Timothy Baxter alleged that defendant David Cohen, Susan Baxter’s doctor, failed to properly diagnose and treat her bacterial infection and pneumonia, which developed into bacterial spinal meningitis and left Susan Baxter deaf. Defendant responded that Susan Baxter’s symptoms would not have led a doctor acting within the standard of care to diagnose bacterial pneumonia and meningitis; that if there were any such symptoms, Susan Baxter failed to report them to him; and that Susan Baxter failed to follow his directions to go to a hospital. A jury trial resulted in a verdict for defendant, and plaintiffs appeal that verdict here. Concluding that the trial court erred in refusing to excuse one of the defendant doctor’s current patients from the jury, we reverse.

1. In voir dire, potential juror Abercrombie revealed that she was a current patient of defendant and had been for ten years, and that her husband was also a current patient of defendant. Although defense counsel was able to elicit a positive response to a question about whether she would listen to the evidence and apply the law as the judge instructed, Abercrombie had previously acknowledged that she was not sure she could be fair, and that it would probably be tougher to prove to her that defendant had done something wrong than it would be to convince someone else.

“ ‘Jurors should come to the consideration of a case . . . free from even a suspicion of prejudgment or fixed opinion.’ ” Ellison v. Nat. By-Products, 153 Ga. App. 475, 476 (265 SE2d 829) (1980). It is generally within the trial court’s discretion to deny a challenge for cause where the potential juror states that he or she can be objective, and we have recently held that the court did not abuse its discretion in failing to excuse for cause jurors who were former patients of a defendant doctor in a medical malpractice case but who indicated they could be objective. Luke v. Suber, 217 Ga. App. 84, 87 (2) (456 SE2d 598) (1995), aff’d, Suber v. Luke, 266 Ga. 408 (467 SE2d 891) (1996). See also Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (1) (b) (224 SE2d 739) (1976) (potential jurors whose family members were patients of the defendant doctor need not be excused for cause as long as they stated they could decide the case without bias).

“However, the relationship of a prospective juror to a party can be so close that, considering the nature of the case, fairness requires that the juror be discharged.” Marcin v. Kipfer, 454 NE2d 370, 372 (Ill. App. 4th Dist. 1983). And like the courts of Illinois and Vermont, we conclude that an ongoing relationship between an individual doctor and patient is just such a relationship. See id.; Jones v. Shea, 532 A2d 571, 573 (Vt. 1987). “ ‘[T]here is often a close personal relationship between physician and patient, derived, perhaps in part, from the necessity for trust and confidence upon the part of the patient in his physician’s judgment.’ [Cit.]” Jones, 532 A2d at 573. To expect a patient in this type of a relationship to objectively determine whether or not his personal physician was negligent simply ignores reality and human nature. Indeed, given the generally recognized closeness of the doctor-patient relationship, a court’s refusal to excuse a current patient for cause not only is unfair to the plaintiff in that case, but makes a mockery of our judicial system in the eyes of the public. Accordingly, we hold that where a potential juror has an ongoing relationship with an individual personal physician, and that physician is the defendant in a medical malpractice action, it is error to deny a challenge for cause. Jones, 532 A2d at 573; Marcin, 454 NE2d at 372.

Decided March 8, 1996

Reconsideration denied March 28, 1996

Alan Z. Eisenstein, Robert M. Goldberg, for appellants.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., David V. Johnson, for appellee.

2. Plaintiffs also contend the trial court erred in its charge on comparative negligence. The court instructed the jury as follows: “If you find that the negligence of the defendant, if any, was less than the negligence of the plaintiffs, if any, then the plaintiffs could not recover. If you find that the negligence of the defendant, if any, was equal to the negligence of the plaintiffs, if any, then the plaintiffs could not recover. If you find that the negligence of the defendant, if any, was greater than the negligence of the plaintiffs, if any, then the plaintiffs could recover but the amount of the recovery would be reduced by the degree of negligence chargeable to the plaintiffs.” Defendant argued and presented evidence that Susan Baxter negligently failed to disclose symptoms which would have enabled defendant to diagnose her condition, and that to the extent Susan Baxter was unable to disclose her symptoms due to the condition she was in, Timothy Baxter was also negligent in failing to disclose Susan Baxter’s symptoms on her behalf.

Plaintiffs assert that in using the plural “plaintiffs,” the court’s instruction on comparative negligence improperly advised the jury to impute any negligence on the part of Timothy Baxter to Susan Baxter for the purpose of comparing negligence. An instruction which groups the plaintiffs together in this way is unadvisable and would be improper in many multiple plaintiff situations, but it was not error in this case. The only evidence of negligence on the part of Timothy Baxter was testimony regarding his failure to disclose Susan Baxter’s symptoms for her when she was unable to do so for herself, and while Timothy Baxter’s negligence could not be imputed to Susan Baxter simply because he was her husband, see OCGA § 51-2-2, it could be imputed to her because he was her representative, see OCGA § 51-2-1.

3. Plaintiffs’ remaining enumerations of error are without merit.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.

       We note that in Luke v. Suber, we found the refusal to excuse even former patients for cause “troubling” and stated that “the better practice would be to eliminate defendant’s former patients (and their spouses) from the panel of potential jurors if possible.” 217 Ga. App. at 87.

       Alabama has taken a similar but slightly different approach: the existence of a current doctor-patient relationship creates a strong presumption of bias. That presumption may be rebutted through voir dire, but the simple extraction of an affirmative response at the end of a period of vacillation is not enough to rebut it. See, e.g., Dixon v. Hardy, 591 S2d 3 (Ala. 1991). This approach has some logical appeal, but we suspect it would be inefficient at best and extremely difficult to administer at worst. And the relatively large number of cases coming out of Alabama on the subject would seem to confirm that suspicion. The clear rule adopted by Illinois and Vermont courts — and adopted by us here — is easier to apply in addition to promoting fairness. And while it may eliminate some potential jurors unnecessarily, the Supreme Court has held that in the interest of fairness, “if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.” Cambron v. State, 164 Ga. 111, 114 (137 SE 780) (1927).
      Of course, given the vacillation of the potential juror in this case, we would have to reverse and remand for a new trial under the Alabama approach as well.