author: Dillard, Judge.

text:
    A16A1003.
    ENDSLEY v. GEOTECHNICAL & ENVIRONMENTAL CONSULTANTS, INC. et al.
    (794 SE2d 174)
   Dillard, Judge.

Mildred Endsley appeals from the trial court’s denial of her motion for new trial following its entry of judgment on a jury’s verdict in favor of Geotechnical & Environmental Consultants, Inc. (“GEC”) and Patricia Mason in Endsley’s personal-injury suit, in which United Health Group (“UHG”) intervened to seek reimbursement for workers’ compensation benefits that UHG paid to Endsley On appeal, Endsley contends that the trial court erred in (1) denying her request to bifurcate the trial; and (2) after a stipulation was reached between Endsley and UHG as to a monetary amount, instructing the jury that UHG had paid benefits to Endsley and had done so as a result of a wreck, as well as instructing the jury that UHG’s workers’ compensation lien was “evidence about the presence or absence of insurance or benefits.” Endsley contends that, because of the foregoing errors, the trial court should not have entered judgment on the jury’s verdict or should have granted her motion for new trial. For the reasons set forth infra, we affirm.

The undisputed underlying facts show that in 2008, Endsley was involved in a motor-vehicle accident with Mason while both were acting within the scope of their respective jobs. Mason collided with the rear of Endsley’s vehicle, and both Mason and her employer, Geotechnical & Environmental Consultants, Inc., admitted to their negligence and/or vicarious liability. However, what was disputed at trial was the proximate cause of Endsley’s alleged injuries, which Mason and GEC argued were the result of a pre-existing condition at the time of the collision.

Following the accident, Endsley received workers’compensation benefits through UHG. Then, after Endsley filed suit against Mason and GEC in 2010, UHG filed a motion in 2014 to intervene in the action under OCGA § 34-9-11.1. And noting that there was “no objection by any of the parties,” the trial court granted UHG’s motion.

Prior to trial in 2015, all three parties engaged in an exchange of e-mails with the trial court, and those communications were later made part of the record on motion by Endsley. These e-mails reflect that UHG wished to participate in the trial and that, upon learning this, counsel for Endsley contacted all parties and the court to express disagreement with the suggestion that UHG should be permitted to participate in the trial, which would inject knowledge of the workers’ compensation lien into the main proceedings. Instead, suggested Endsley, the court should wait until after the main trial to decide what to do with UHG’s lien. However, in an e-mailed response to all parties, the trial court concluded that UHG would be allowed to participate at trial because, in its view, this was the “proper role for an intervenor at trial.” Endsley’s counsel again expressed his disagreement with this decision in an e-mail sent to all parties and the trial court. But thereafter, the trial court issued an order as to the role of UHG as an intervenor, concluding that UHG would “participate during the jury trial as a party” and be permitted to “make an opening statement, examine witnesses, offer evidence, and make closing arguments related to its interest of protecting and enforcing its subrogation lien.”

Prior to beginning jury selection, the trial court told the venire that UHG would be participating as an intervenor and had paid workers’ compensation benefits to Endsley Thus, the trial court explained, UHG had a lien against any recovery and could present evidence to protect and enforce its lien. The court further instructed, however, that the jury’s focus would not be on UHG’s claim and that it would not be concerned with making a decision as to the lien.

Following these comments by the trial court, Endsley objected to UHG’s participation on the record, arguing that the jury should not have been informed of UHG’s payment of benefits and that the court should decide the issue of the lien after the jury’s return of a verdict. But the trial court again ruled that, as an intervenor, UHG had the right to “participate and influence” the jury to protect and enforce its lien, but that the jury would consider the evidence only to determine liability and the amount of damages.

Thereafter, Endsley further objected to any reference as to the amount of workers’ compensation payments received or the amount of the claimed lien because any such reference at trial would “further inject” knowledge of a collateral source. But Endsley then indicated to the court that she did not contest the amount of the lien and was willing to stipulate to same. And during a break that ensued in the proceedings, UHG and Endsley reached an agreement that they would stipulate to the amount of the lien. When the proceedings resumed, Endsley acknowledged that she and UHG had “agreed that it’s stipulated and there’s no reason to present any of that to the jury.”

The stipulation having been accepted, the trial court inquired, “[w]ith that stipulation, I don’t think there’s any need for [UHG] to present anything to the jury; is there?” UHG’s counsel responded that she was “just going to explain why I was here, and not any amounts, and ask that [the jury] fully compensate Ms. Endsley’s injuries.” Endsley offered that UHG “certainly has a right to say that.” Counsel for Mason and GEC then asked what he would have a right to say to the jury and asked if he could “explain to the jury what’s going on or not?” The following colloquy then took place between the trial court and counsel for the parties:

THE COURT: I mean, where I am in my thought process is, I don’t know that there is any need for the Intervenor to do anything at trial if there is a stipulation that’s been made between the Intervenor and the Plaintiff.
[UHG]: Your Honor, my thoughts were that the jury should know that someone has asserted a lien on her — on the damages that she may be entitled to.
THE COURT: I can tell [the jury] that, you know, the Defendant — a stipulation has been made that’s going to take care of that aspect of the case, so you’re not going to hear from the Intervenor. And it’s consistent with what I’ve already told them, which is their focus is to be on the Plaintiff — between the Plaintiff and the Defendant.
[ENDSLEY]: That, I think, is correct, Your Honor.
[UHG]: I would like for the jury to know that Ms. Endsley should be fully compensated for her damages and that any damages they award should fully compensate her.

But counsel for Mason and GEC still wanted to know exactly what the defendants could argue at trial about the intervention. The trial court explained that it was “having pause about any kind of statement made from the Intervenor . . . Endsley’s counsel then explained that he thought “we are right where we would have been if [UHG] had not intervened at all. We try this case on the issues. Was this woman hurt? Was it the Defendant’s fault? What are the damages?” Nevertheless, Mason and GEC’s counsel persisted in asking the trial court whether the jury was entitled to know that Endsley “brought a workers’ compensation claim seeking medical expenses and lost wages and that they reached a settlement with [UHG], and that now they have reached an agreement between themselves and [UHG] as to the enforceability of that lien.” In response, the trial court concluded that,

[i]f we’re at the position that the Intervenor is not going to introduce any evidence, then I’m not going to allow the Intervenor to argue the case, because I do think the issue that is out there, that it has been resolved as far as what the jury needs to know about it.
And that’s what I’m going to do, is tell them that that’s been resolved and it will be dealt with separately and that their issue is to decide between the Plaintiff and the Defendant whether there is liability and how much it is.
And so they will not — I’m not going to tell them how much the lien is.

Still unclear as to how the case would proceed, Mason and GEC’s counsel asked the trial court if the jury would be told that “there was a settlement, there was a worker’s compensation] claim” because the jury “implicitly know[s] that . . . In response, the court further explained that it would instruct the jury

that the issue that existed between — with the Intervenor has been resolved separately from what they’re doing, and so what they’re going to be focused on is the claim that exists between the Plaintiff and the Defendant, which actually I’ve already told them once that. And I was going to tell them that in the charge, too, is that that’s what they’re to be focused on.

And when counsel for Mason and GEC asked the trial court what he would be allowed to say in his opening statement as to UHG’s role, the court responded that Mason and GEC should “view it as though the Intervenor didn’t intervene” and that they were “back to a case that’s between the Plaintiff and the Defendant.”

Thereafter, during preliminary instructions, the trial court charged the jury as follows:

As you know from my earlier comments, the case that we’re dealing with today is a motor vehicle collision case. And Ms. Endsley is contending that she was injured in this motor vehicle collision. The Defendants, Geotechnical and Environmental Consultants, Incorporated, and Ms. Mason, admit that Ms. Mason was at fault in causing the impact, and they admit that Ms. Mason was working in the scope of her employment at the time of this collision, but they deny there were injuries resulting from the collision.
Earlier you heard me talk a little bit about United Health Group as an Intervenor in the case. I want to tell you that the issues relating to the Intervenor have been stipulated to between the Plaintiff and the Defendant at this point, and so you’re not going to hear from the Intervenor. Your focus in this case is just going to be between the Plaintiff and the Defendant making the decision as to whether there is liability and whether there is causation in the case for injuries that are alleged and, if so, then what damages should be awarded.

Opening statements followed, in which counsel for Mason and GEC told the jury that Endsley

was on the job at the time, going to a job. And Patty Mason was on the job at the time, which is why Geotechnical is here as a defendant as well, because you’re responsible for your employees while they’re on the job for you. And that’s why the workers’ compensation carrier is involved in this case, because [Endsley] was on the job at the time and had a workers’ comp claim from it.

Endsley did not object.

Thereafter, the parties presented their respective evidence and testimony and, at the conclusion of the trial, the trial court again instructed the jury as follows:

Under Georgia’s workers’ compensation laws, United Health Group paid disability benefits and medical expenses as a result of the November 10th, 2008[ ] collision. The workers’ compensation laws give United Health Group a subrogation lien against the Plaintiff’s recovery in this case and a right to intervene and to protect and enforce such lien.
As an Intervenor, United Health Group is a party to this case. As to the Intervenor, your task however is simply to render a verdict as to the Plaintiff’s claims against the Defendants in accordance with these instructions.
Your verdict will include an itemization of damages that you award, based on your determination of the facts and your application of the law to those facts. Beyond your determination of the damages awarded, if any, to the Plaintiff, you do not need to address the Intervenor’s claims.

And a short while later, the trial court further instructed as follows:

Other than notice of the workers’ compensation lien, you have received no evidence about the presence or absence of insurance or benefits of any type, whether liability, health insurance, government benefits, or other employment-related benefits, for either the Plaintiff or the Defendants. You should not speculate as to whether the Plaintiff will or will not have to reimburse anyone else from her recovery, or whether any damages awarded against Defendant will be paid from any independent source.
If any adjustments are necessary, due to the existence of other resources relating to any party, those adjustments will be made after you return a verdict. It is your responsibility to return a verdict based on the evidence produced to you and the law given to you in this charge, to the best of your skill and knowledge. You are only responsible that your verdict speak the truth of the case itself.

The trial court then noted that it would pause its instructions in order to allow the parties to make closing arguments.

During closing arguments, counsel for Mason and GEC commented:

[Wje’re not allowed to tell you much at all about this worker’s [sic] compensation claim but what the judge has told you. And that’s why [UHG’s counsel] is sitting her[e] ... today, is she represents . . . the workers’ compensation carrier.
And all you know and are allowed to know is that under Georgia’s workers’ compensation laws [,] United Health Group has paid disability benefits and medical expenses as a result of the November 10th, 2008[ ] collision.
Beyond your determination of damages, you do not need to address the Intervenor’s claims. We are not free to discuss what they paid or not.
But if they paid something, they were not very bright, because there’s an awful lot of medical evidence in this case that shows that this surgery did not come from this automobile collision. And even the Plaintiff, at the time she gave her history, didn’t relate it.

Endsley did not object to this statement, and at the conclusion of the closing arguments, the trial court continued its charge to the jury Then, after the jurors had been dismissed to deliberate, but just before they returned to the courtroom to read the verdict, Endsley’s counsel put the following on the record:

Your Honor, at some point I wanted to put on the record what I had said before we did the charge about the charging on the workers’ compensation lien. And I wanted to put an objection to that being included in the charge. . . . We did object and ask you to exclude any reference to the workers’ compensation lien on the grounds that it did inject the collateral source, and we still except that the Court included that in its charge. . . . And, Judge, that was overruled, I believe.

The trial court confirmed that Endsley’s objection had indeed been overruled and, thereafter, the jury returned a verdict in favor of Mason and GEC, upon which the court entered judgment. This appeal follows the denial of Endsley’s motion for new trial.

1. First, Endsley argues that the trial court erred in its initial decision to allow UHG to actively participate at trial as a party after intervening in the case rather than bifurcating the trial. We agree that, under the particular facts of this case, the trial court abused its discretion in not initially choosing to bifurcate the trial. However, for the reasons discussed in Division 2 infra, the error was ultimately harmless.

At the outset, we note that OCGA § 34-9-11.1 provides, in relevant part, that when a third party causes an employee’s injury or death, and the liability of the employer has been fully or partially paid, the employer or the employer’s insurer “shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery.” And to protect this interest, the employer or the employer’s insurer “may intervene in any action to protect and enforce such lien.” But the recovery of the employer or employer’s insurer is

limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

If the injured employee fails to bring suit against the third party within one year, OCGA § 34-9-11.1 (c) permits the employer or such employer’s insurer to “assert the employee’s cause of action in tort, either in its own name or in the name of the employee.” The employee must be given notice if the employer or employer’s insurer files suit, and the employee has the right to intervene. Additionally, if the employee files suit against the third party more than one year after the date of the injury, the employee must give notice to the employer or its insurer, and “the employer or its insurer . . . have a right to intervene.” Regardless, “if the employer or insurer recovers more than the extent of its lien, then the amount in excess thereof shall be paid over to the employee.”

As we have previously explained, the workers’ compensation statute is in derogation of the common law and, as a result, it must be strictly construed. Thus, any claim by an employer or its insurer “asserting subrogation rights against a third-party tortfeasor to the extent of workers’ compensation payments made to the employee arises solely by operation of statute.” An employer or employer’s insurer’s right to seek subrogation, then, is not absolute.

Nevertheless, we have also held in the context of workers’ compensation subrogation that “[^Intervention under OCGA § 34-9-11.1 gives the intervenors rights against the defendants and the plaintiffs which are analogous to cross-claims.” Furthermore, we have suggested that “should an intervenor seek to litigate issues different, from those already pending between the parties, to claim additional damages, or to raise additional defenses, . . . the intervenor’s ability to raise these matters would be controlled by OCGA §§ 9-11-21 and 9-11-15 (c).” And finally, although an intervenor’s “choice of pleadings or argument may on occasion conflict with a plaintiff’s choice,” we have noted that the trial court’s “ability to referee such disagreements and conflicts will have to be decided on a case-by-case basis.”

Here, Endsley sought to recover “for her past and future actual damages and her pain and suffering.” Importantly, because a workers’ compensation subrogation lien is “available only against recovery for economic losses, the insurer must show that the employee has been fully and completely compensated as to each category of non-economic loss for which the insurer seeks subrogation and that no portion of the lien is taken against recovery for noneconomic losses.” And in the case sub judice, there is no indication that there was any disagreement between Endsley and UHG as to how the case should proceed on the issue of recoverable damages to achieve full and complete compensation. In such a case, the most appropriate procedure is for the trial court to bifurcate the trial into two phases in order to exclude prejudicial references to collateral sources of recovery, i.e., workers’ compensation benefits. Thus, in failing to bifurcate the trial in this particular case, the trial court abused its discretion.

In a trial that is bifurcated due to intervention of a workers’ compensation carrier under OCGA § 34-9-11.1, the first phase consists of trying before the jury the plaintiff’s claim against the defendant while omitting any reference to reimbursement for lost wages and medical expenses by the workers’ compensation carrier, and utilizing a special-verdict form to itemize the recovery amounts awarded for the plaintiff’s damages should the jury find the defendant liable. Then, in the second phase of the trial, the issue to be decided is whether the workers’ compensation carrier is entitled to a subrogation lien against the plaintiff’s recovery made in phase one. To accomplish this, in the second phase, the workers’ compensation carrier must show

without regard to the tort principles applied in [the plaintiff’s] claim against [the third-party defendant], that [the plaintiff was] “fully and completely compensated[ ]” within the meaning of OCGA § 34-9-11.1 (b), for all of her economic and noneconomic losses incurred as a result of the injury.

As we have previously noted, “either by the agreement of the parties or by waiver in failing to timely object, the trial court can submit the issue of full and complete compensation to the jury to render an advisory finding of fact.” However, under OCGA § 34-9-11.1, “the legal duty to make the determination that the employee has been made whole still remains with the trial court, even if it uses a jury to advise it in reaching such determination.”

In denying Endsley’s request to bifurcate the trial in this case, the trial court relied upon this Court’s decision in Andrews v. Ford Motor Company, in which we vacated a trial court’s order granting an insurance company’s motion to intervene under OCGA § 9-11-24 (a) (2) in a product-liability action when the court conditioned the intervention such that the insurance company “would not be allowed to participate as a party during the main action”; “would not be allowed to have its name added to the caption of the case”; and “none of its claims would be addressed by the court until after the court had resolved the claims presented in the main action.” Specifically, we concluded in Andrews that although the trial court’s order purported to grant the insurance company the right to intervene, it

denie[d] [the company] the status necessary to protect any interest it may have—that of a party—and the litigation tools necessary to participate in the case as an intervenor so that it may carry out the purpose of intervention, that is, to protect whatever rights it may have or whatever claims it may seek to interpose during the pending litigation.

However, setting aside the fact that the intervention in An drews was made under an entirely different statute, the relevant division in this opinion is not binding precedent because one of the three judges participating in that case (Judge Doyle) concurred in the judgment only as to that division. Moreover, even if Andrews were binding precedent, nothing in that opinion explicitly purports to prohibit a trial court from bifurcating a trial in circumstances similar to those presented in the case sub judice. And while there may be some degree of tension between Andrews and cases involving bifurcation in the workers’ compensation context, we need not resolve that tension today.

Accordingly, the trial court abused its discretion in failing to bifurcate this case, which, notwithstanding the stipulation ultimately reached between Endsley and UHG, resulted in comments and instructions throughout the trial that referred to the collateral source of workers’ compensation benefits. However, for the reasons set forth infra in Division 2, the trial court’s error in refusing to bifurcate does not require reversal.

2. Next, in two separate enumerations of error, Endsley argues that after accepting the stipulation with UHG and deciding that there was no longer a need for UHG to participate at trial, the trial court further erred in giving certain instructions to the jury. Specifically, Endsley maintains that the court erred in instructing the jury that UHG had paid benefits to Endsley, giving it a lien against any recovery, and had done so as a result of the wreck. She further contends that the court erred in instructing the jury that UHG’s workers’ compensation lien was “evidence about the presence or absence of insurance or benefits.” But pretermitting whether Endsley acquiesced to the first instruction by failing to move for a mistrial after the trial court accepted the stipulation and, instead, agreed that the court could instruct the jury as to same, we find any error by the trial court’s instructions harmless.

We have previously rejected outright the argument that erroneous admission or reference to collateral sources is always harmful. Indeed, it is well established that, generally, when the error in the admission or exclusion of evidence or in the giving or not giving of jury instructions relates only to the issue of damages, and the jury finds that the defendant is not liable, the error is harmless because it does not affect the verdict. To that end, we have repeatedly held that when collateral sources such as insurance and disability benefits are referenced, the error in doing so is harmless when the jury renders a verdict finding that the defendant is not liable to the plaintiff. Indeed, our own Supreme Court has acknowledged in Denton v. Con-Way Southern Express, Inc. that, at least insofar as liability insurance of a defendant is concerned, the “rationale” for not disclosing same to a jury is due chiefly to “the assumption that a knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages to be paid . . . .” And, as we have previously recognized, when our Supreme Court decided Denton, it “undoubtedly was aware of our treatment of this issue [(i.e., our application of the harmless error rule to the erroneous admission of collateral-source evidence)] before its decision,” and “without a specific holding to the contrary we will not interpret [the Supreme Court’s] failure to address this issue as a rejection of the harmless error rule.”

In support of her argument that reference to a collateral source “infects the question of liability,” Endsley relies upon our decision in Collins v. Davis. However, in reversing for a new trial in that case, we noted that the “evidence relating to negligence” was “highly disputed and uncertain” and, as a result, it was “impossible to say that the errors in admitting [the] insurance evidence did not affect the verdict.” In Collins, the trial court permitted admission, over repeated strenuous objections and motion for mistrial, that the plaintiff had failed to file a claim with his no-fault insurer. The defendant argued that this was relevant to the plaintiff’s claim for lost wages. But we explained that the “[f]ailure to file an insurance claim is not an admission that the party has no loss” and that such evidence “does not logically prove he had no lost wages, any more than filing a claim would prove he did have lost wages.” Indeed, in Collins, the evidence was disputed

as to whether the lead car (in which the plaintiff . . . was a passenger) was at fault for stopping suddenly, whether other cars stopping in front of the lead car caused that car to stop, whether the brake lights of the lead car failed to operate or simply were not seen by defendant... in the car behind; and whether [the defendant] might have been following too closely.

Thus, all of the foregoing informed our conclusion that, “[b]y implying there was no loss, or that the party had a source of insurance and therefore should not have sued (or should have been sued), it infects the question of liability.”

But here, as previously noted, negligence was admittedby Mason and GEC (i.e., Mason and GEC admitted to breaching a duty of care owed to Endsley), leaving the jury to determine (1) the proximate cause of Endsley’s injuries and, thus, whether Mason and GEC were liable, and (2) the monetary amount of damages if the jury determined that Mason and GEC were liable for same. Indeed, the trial court instructed that the jury’s “duty [was] to determine the amount of damages, if any, that wereproximately caused by the collision. The [p]laintiff must prove the [defendant's negligence was the proximate cause or one of the contributing causes entering into the proximate cause of her injury.” The court then later instructed that “[n]o [pjlaintiff may recover from injuries or disability that are not connected with the act or omissions of the [djefendants from whom a recovery is sought. There can be no recovery for any injury or disability that was not proximately caused by the incident in question.” Further on, the court charged that

[djamages are given as pay for compensation for injury done. When the law requires one party to pay damages to another, it seeks to see that the damages awarded are fair to both parties. If you believe from a preponderance of the evidence that the [pjlaintiff is entitled to recover, you should award to the [pjlaintiff such sums as you believe are reasonable and just in this case.

Thus, it is abundantly clear that liability remained an issue, and this was not strictly a trial regarding the monetary amount of damages to be awarded. And elsewhere, the trial court’s instructions to the jury directed that beyond the determination of damages awarded, the jury would not address the intervenor’s claims as to the workers’ compensation subrogation lien.

Finally, this was not a case in which it was impossible to tell the basis for the jury’s decision in favor of the defendants by the verdict form. Indeed, utilizing a special verdict form, the jury concluded that Mason and GEC were not liable and never reached the question of monetary damages. Accordingly, the jury never reached the issue of damages, rendering any error in the court’s references to and instructions regarding the workers’ compensation lien harmless.

Decided October 28, 2016

Reconsideration denied November 28, 2016

Dozier Law Firm, L. Zack Dozier, Jr.; Charles M. Cork III, for appellant.

Cowsert & Avery, William S. Cowsert; Hamilton Westby Antono-wich & Anderson, Holly J. Portier, for appellees.

For all of the foregoing reasons, we affirm.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

       The record reflects that the parties and the trial court agreed to conduct closing arguments after the charge to the jury.

        See, e.g., Krayev v. Johnson, 327 Ga. App. 213, 221 (2) (757 SE2d 872) (2014) (“[T]he decision whether to bifurcate a trial is within the discretion of the trial court.”); Wheels & Brakes, Inc. v. Capital Ford Truck Sales, Inc., 167 Ga.App. 532, 533-34 (1) (307 SE2d 13) (1983) (“The court has ... discretion regarding whether to order a bifurcated trial for trying the issues of liability and damages.”).

       OCGA § 34-9-11.1 (b).

        Id.

        Id.

       OCGA § 34-9-11.1 (c).

        Id.

        Id.

        Schecter v. Auto-Owners Ins. Co., 335 Ga. App. 30, 34 (779 SE2d 69) (2015); see Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 867 (1) (570 SE2d 60) (2002) (“The General Assembly through OCGA § 34-9-11.1 creates a statutory subrogation lien in derogation of common law in the employer or workers’ compensation insurer against any third-party tortfeasor, causing the employee’s injury or recovery.”); Coker v. Deep S. Surplus of Ga., Inc., 258 Ga. App. 755, 756 (574 SE2d 815) (2002) (“Because the Workers’ Compensation Act is in derogation of common law, its provisions must be strictly construed.”).

        Schecter, 335 Ga. App. at 34 (punctuation omitted); accord Canal Ins. Co., 256 Ga. App. at 867 (1); Ga. Star Plumbing v. Bowen, 225 Ga.App. 379, 381-82 (484 SE2d 26) (1997); see also K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873 (1) (401 SE2d 5) (1991) (“[A]ny subrogation claim which an insurer under the Georgia Workers’ Compensation Act may have against a third-party tortfeasor who has caused the death or disability of an employee arises solely by operation of statute.” (punctuation omitted)).

        Schecter, 335 Ga. App. at 34; see also Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 782 (2) (542 SE2d 171) (2000) (“The right of an employer or insurer to seek subrogation under OCGA § 34-9-11.1 is not absolute.”); N. Bros. Co. v. Thomas, 236 Ga.App. 839, 839-40 (513 SE2d 251) (1999) (“OCGA § 34-9-11.1, which provides a limited right of subrogation to workers’ compensation providers, was enacted in 1995. No subrogation thereunder could occur unless the injured employee had been fully and completely compensated.”).

        Int’l Maint. Corp. v. Inland Paper Bd. & Packaging, Inc., 256 Ga.App. 752, 755 (1) (569 SE2d 865) (2002); accord Schecter, 335 Ga. App. at 36.

        AC Corp. v. Myree, 221 Ga.App. 513, 516 (2) (471 SE2d 922) (1996) (emphasis supplied); accord Schecter, 335 Ga.App. at 36. Cf. P.F. Moon & Co., Inc. v. Payne, 256 Ga.App. 191, 193-94 (1) (568 SE2d 113) (2002) (“The issue remains ... as to whether the [injured employee and his wife], as intervenors, can stand in [the employer’s] shoes for purposes of amending the relief sought. Intervention is intended to allow the intervenor to protect its share of the recovery from another’s litigation. But due to the unique situation presented under OCGA § 34-9-11.1, an employee . . . may be intervening not only to secure his interest in any recovery, but also to protect the proper prosecution of his own cause of action. And here, [the employee] seeks only to add an additional damage claim arising out of the same occurrence upon which [the employer’s] complaint was based. Under these circumstances, we find that the claim for pain and suffering is a claim ‘arising out of the conduct, transaction, or occurrence’ set forth in the original complaint pursuant to OCGA § 9-11-15 (c) and may be treated as an amendment by a party plaintiff relating back to the date of the original complaint for statute of limitation purposes.” (citations omitted)).

        Int’l Maint. Corp., 256 Ga.App. at 754 (1); accord Schecter, 335 Ga. App. at 36-37; see also Austell Healthcare, Inc. v. Scott, 308 Ga. App. 393, 396 (3) (707 SE2d 599) (2011) (quoting Int’l Maint, Corp. to note that “[w]e have previously held that an intervenor may file ‘whatever briefs, evidence, or other papers it chooses,’ and also ‘may choose discovery tactics different from those of a plaintiff ....’”).

        Int’l Maint. Corp., 256 Ga. App. at 755 (1); accord Schecter, 335 Ga. App. at 37.

        Anthem Cas. Ins. Co., 246 Ga. App. at 780 (1).

        Cf. Schecter, 335 Ga. App. at 31-32 (noting that after workers’ compensation carrier successfully intervened in action, plaintiff moved to set aside and modify the order permitting the intervention and objected to “ ‘the request for bifurcated trials and [plaintiff] to sue for intervenor’s special damages’ because [the plaintiff] did ‘not intend to prove or offer specials in evidence at the trial and does not have any one [sic] to testify to same or the amounts’ ” (punctuation omitted)).

        See Hammond v. Lee, 244 Ga. App. 865, 866, 868 (4) (536 SE2d 231) (2000) (approving of trial court’s decision to bifurcate trial into two phases); see also Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 408 (1) (434 SE2d 450) (1993) (“The collateral source rule is applicable in tort cases because collateral source evidence cannot be admitted to diminish the defendant’s liability for the actual harm that was caused by his tort.”).

        See OCGA § 9-11-42 (b) (“The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue, or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”); Parks v. Consolidated Freightways, 187 Ga. App. 576, 577 (1) (370 SE2d 827) (1988) (“Severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.” (punctuation omitted)). Cf. Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 177-78 (1) (a) (421 SE2d 767) (1992) (holding, in consolidated appeal brought by defendant-driver and her automobile insurance/personal injury protection benefits provider after jury verdict was returned in favor of plaintiff-pedestrian, that trial court erred in denying defendants’ joint request to bifurcate trial because the failure to bifurcate admitted evidence of insurance coverage that was prejudicial to defendant-driver).

        See Hammond, 244 Ga. App. at 866 (noting that “[i]n phase one, [plaintiff’s] claim against [third-party defendant] was tried before the jury under a ruling by the trial court to omit any reference to the fact that [plaintiff] had been reimbursed for lost wages and medical expenses by workers’ compensation coverage. Utilizing a special verdict form, the jury found that [third-party defendant] was liable to [plaintiff] for damages resulting from the accident and awarded a verdict infavor of [plaintiff] in [specific] amounts” for medical expenses, past lost wages, future lost wages, and past and future pain and suffering); see also N. Bros. Co., 236 Ga. App. at 841 (“Without such a special verdict form, appellate courts could not determine what portions of the award the jury applied toward economic and noneconomic losses, and, as a result, it would be impossible to determine whether a plaintiff had been fully compensated for his losses. The outcome in many such situations would be that a workers’ compensation subrogation lien could not be enforced. It is the responsibility of the workers’ compensation provider to protect its interest by intervention and special verdict requests.” (citation omitted)); Bartow Cty. Bd. of Educ. v. Ray, 229 Ga. App. 333, 334-35 (494 SE2d 29) (1997) (“The statute prescribes no method by which an employer can establish that a workers’ compensation recipient has been fully and completely compensated by a recovery from a third-party tortfeasor. . . . [U]tilization of a special verdict form may be the most practical solution. . . . OCGA § 34-9-11.1 does not require use of a special verdict form, but its use would have given to the employer the answer it is now impossible to ascertain.”); Dep’t of Admin. Servs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995) (suggesting that use of a special verdict form serves the interests of intervening workers’ compensation carriers).

        See Hammond, 244 Ga. App. at 866 (noting that “[i]n phase two, the issue was whether [the workers’ compensation carrier] was entitled to a subrogation lien pursuant to OCGA §34-9-11.1 (b) against the amounts recovered by [plaintiff] in phase one”).

        Id. at 868 (4); see also N. Bros. Co., 236 Ga.App.at841 (“Under the express language of OCGA § 34-9-11.1 (b), no subrogation claim can be recovered where there has not been full compensation for the employee’s injuries.”).

        Canal Ins. Co., 256 Ga. App. at 871 (1).

        Idr, see also id. at 872-73 (1) (“The trial court alone must determine if the employee has been fully and completely compensated; neither party has a right to a jury determination of whether the injured employee has been fully and completely compensated under subsection (b).”); Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 340 (2) (535 SE2d 511) (2000) (“[I]n the absence of a right to a jury trial on [the] issue [of full and complete compensation], the question is one of fact for the trial court.”); An them Cas. Ins. Co., 246 Ga. App. at 780 (1) (“The insurer bears the burden of proving that the insured has been [fully and completely] compensated, and whether the insurer has carried that burden is a question for the trial court.”).

       310 Ga. App. 449 (713 SE2d 474) (2011) (physical precedent only as to Division 3).

        Id. at 453 (3).

        Id.

        See Court of Appeals Rule 33 (a) (“If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.”). But see Muldrow v. State, 322 Ga. App. 190, 195 (3) n.29 (744 SE2d 413) (2013) (“This is not to say, however, that a party on appeal should shy away from citing physical precedent as persuasive authority. Indeed, some of the judges on this Court are of the view that our physical-precedent cases should be afforded greater consideration than decisions from appellate courts in other jurisdictions. Nevertheless, it is crucial that litigants explicitly designate physical precedent as such, and thoroughly explain why this Court should adopt the reasoning from that particular opinion.”).

        See Booker v. Older Ams. Council of Middle Ga., Inc., 278 Ga.App. 407, 409 (1) (629 SE2d 69) (2006) (“[Appellant] made no objection to the trial court’s instruction as given and did not move for a mistrial; he acquiesced to the trial court’s ruling. Thus, this allegation of error presents nothing for review.”); Carriage Hills Assocs., Inc. v. Mun. Elec. Auth., 264 Ga. App. 192, 195 (4) (590 SE2d 156) (2003) (rejecting argument that trial court erred in denying motion for mistrial during a heated exchange between the court and counsel when “appellants acquiesced and did not renew their motion for mistrial after the trial court gave the curative instruction requested by appellants”) .We also note that Endsley’s brief mentions the comments that Mason and GEC’s counsel made about the workers’ compensation lien during arguments to the jury. But in addition to failing to enumerate these instances as error, Endsley failed to object to any of these references at trial. See Kelley v. Purcell, 301 Ga. App. 88, 91 (686 SE2d 879) (2009) (holding that despite defense attorney’s violation of collateral source rule during closing arguments, issue was waived for appeal by failure to object at the time argument was made); see also Stolte v. Fagan, 291 Ga. 477, 482 (2) (b) (731 SE2d 653) (2012) (“The proper time to object to improper argument is when it occurs. We have held that such objections must be made at the time the offending remarks are made, rather than at the conclusion of the argument.” (citations and punctuation omitted)); Chhina Family P’ship, L.P v. S-K Grp. of Motels, Inc., 275 Ga. App. 811, 811-12 (1) (622 SE2d 40) (2005) (“Having failed to enumerate as error that the evidence did not support reformation, any such claim is deemed abandoned.”).

        See Willard v. Wilburn, 203 Ga.App. 393, 394 (2) (416 SE2d 798) (1992) (acknowledging that the Supreme Court of Georgia “undoubtedly was aware of our treatment of this issue before its decision in” Denton v. Con-Way S. Express, Inc., 261 Ga. 41 (402 SE2d 269) (1991), in which the Supreme Court held that statute authorizing admission of evidence of collateral source payments was unconstitutional, and explaining that “without a specific holding to the contrary we will not interpret [the Supreme Court’s] failure to address this issue as a rejection of the harmless error rule”), ceil, denied (Ga. May 8,1992). Cf. Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 479-80 (2) (722 SE2d 84) (2011) (addressing argument that trial court erred in denying motion for mistrial after defense counsel referred to workers’ compensation benefits during voir dire in order to “avoid any possible repetition at retrial,” and holding that the reference was “inherently prejudicial” and that the failure to grant motion for a new panel or provide a curative instruction “further compounded the error discussed” in prior division of opinion in which we held that reversal was necessary due to a separate error during voir dire).

        See, e.g., Henry v. Watkins, 219 Ga. App. 80, 81 (2) (464 SE2d 215) (1995), cert. denied (Ga. Feb. 9, 1996); Ratliff v. CSX Transp., Inc., 219 Ga. App. 53, 56 (5) (464 SE2d 1) (1995), cert. denied (Ga. Feb. 9, 1996); Bean v. Landers, 215 Ga. App. 366, 368 (2) (450 SE2d 699) (1994), cert. denied (Ga. Feb. 24,1995); Dietz v. Becker, 209 Ga. App. 678, 681 (3) (434 SE2d 103) (1993), cert. denied (Ga. Oct. 29, 1993); Willard, 203 Ga. App. at 394 (2), cert. denied (Ga. May 8, 1992); Pouncey v. Adams, 206 Ga. App. 126, 127 (1) (424 SE2d 376) (1992); Barnes v. Wall, 201 Ga. App. 228, 230 (3) (411 SE2d 270) (1991) (physical precedent only), cert. denied (Ga. Oct. 18, 1991); U.S. Indus., Inc. v. Austin, 197 Ga. App. 74, 75 (2) (397 SE2d 469) (1990), cert. denied (Ga. Oct. 24, 1990); Jet Air, Inc. v. Epps Air Serv., Inc., 194 Ga. App. 829, 831 (3) (392 SE2d 245) (1990), cert. denied (Ga. May 16, 1990); Steverson v. Eason, 194 Ga. App. 273, 273 (1) (390 SE2d 424) (1990); Malloy v. Elmore, 191 Ga. App. 564, 564 (382 SE2d 395) (1989); Whelchel v. Thomas Ford Tractor, Inc., 190 Ga. App. 156, 156 (1) (378 SE2d 510) (1989); Maloy v. Dixon, 127 Ga. App. 151, 155 (2) (b) (193 SE2d 19) (1972); Davis v. Atlanta Coca Cola Bottling Co., 119 Ga. App. 422, 423 (3) (167 SE2d231) (1969), cert. denied (Ga. April 24, 1969); see also OCGA § 9-11-61 (“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); OCGA § 24-1-103 (b) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . . . .”).

        See Henry, 219 Ga. App. at 80-81 (holding that defendant’s reference to HMO provider by name was harmless in light of verdict in favor of defendant on issue of liability); Willard, 203 Ga. App. at 394 (2) (holding that admission of evidence of plaintiff’s health insurance went to the issue of special damages and was harmless because jury “determined the question of liability in favor of the defendant”); Austin, 197 Ga. App. at 75 (2) (holding that admission of evidence of and charge to jury regarding workers’ compensation benefits did not warrant the grant of a new trial because ‘the giving of a charge or the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal [when] a verdict was returned in favor of the defendant” (punctuation omitted)); Malloy, 191 Ga. App. at 564 (holding that admission of evidence of and charge to jury regarding disability benefits was harmless error in light of verdict in favor of defendant on issue of liability); Whelchel, 190 Ga. App. at 156 (1) (holding that the admission of evidence of and charge to jury regarding social security and workers’ compensation benefits was harmless error in light of verdict in favor of defendant on issue of liability); Davis, 119 Ga. App. at 423 (3) (holding that admission of evidence of disability benefits related to damages was harmless because “the verdict was based on a determination that the defendant was not liable”). Cf. Anepohl v. Ferber, 202 Ga. App. 552, 552-53 (1), 568-69 (2) (415 SE2d 9) (1992) (reversing when plaintiff was granted a directed verdict on issue of defendant’s liability, but jury awarded no damages); Wilhelm v. Atlanta Gas Light Co., 190 Ga. App. 869 (1) (380 SE2d 276) (1989) (reversing “[i]n view of the probability that the improper admission of evidence regarding appellant’s collateral benefits directly influenced the jury into rendering a verdict that appellant recover nothing from appellee .. .” (emphasis supplied)); Moore v. Price, 158 Ga. App. 566, 566-68 (1), 568-69 (2) (281 SE2d 269) (1981) (reversing when jury found both defendant and plaintiff negligent but awarded no damages).

       261 Ga. 41 (402 SE2d 269) (1991), disapproved of on other grounds by Grissom v. Gleason , 262 Ga. 374, 376 (2) (418 SE2d 27) (1992) (“We disapprove of Denton v. Con-Way to the extent that it suggests a new equal protection analysis.”).

        Id. at 42-43 n.2 (emphasis supplied).

        Willard, 203 Ga. App. at 394 (2).

        Id.

       186 Ga. App. 192 (366 SE2d 769) (1988). Endsley also cites to Clemmons v. Smith, 246 Ga. App. 643 (540 SE2d 623) (2000), for this proposition. But a review of Clemmons shows that it is inapposite to the facts of this case and stands for only general evidentiary principles regarding collateral-source evidence. In Clem mons, the plaintiff appealed a verdict in favor of the defense and argued that the trial court erred in excluding collateral source evidence that his “medical expenses were not completely covered by insurance in order to dispel what he speculated was the jury’s ‘reasonable surmise’ that those expenses had already been paid.” Id. at 645 (3). We held that because the plaintiff “failed to make the requisite threshold showing of relevance, the trial court did not err in denying his motion to introduce inherently prejudicial collateral source evidence.” Id.

        Collins, 186 Ga. App. at 195 (1); see also Getz Exterminators of Ga., Inc. v. Towe, 193 Ga. App. 268, 271 (1) (387 SE2d 338) (1989) (noting that “[w]e reversed the verdict in Collins because under the ‘highly disputed and uncertain nature of the evidence relating to negligence’ it could not be said the verdict in favor of the defendant. . . was uninfluenced by evidence that the plaintiff had insurance” (citation omitted)).

        Collins, 186 Ga. App. at 192-93 (1).

        Id. at 193 (1).

        Id.

        Id. at 192.

        Id. at 195 (1).

       (Emphasis supplied).

        Cf. Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154-55 (1) (342 SE2d 352) (1986) (holding that the denial of plaintiff’s motion in limine and the erroneous admission of evidence as to plaintiff’s use of a seatbelt were harmless error when trial court instructed jury that it should limit use of that evidence to the question of damages, and jury returned a verdict in favor of defense).

        Cf. Allison v. Patel, 211 Ga. App. 376, 382 (1) (438 SE2d 920) (1993) (holding that erroneous admission of collateral source evidence was not harmless because “the verdict was general, neither party having requested that liability and damages be separate items in the verdict, [and thus] we do not know for certain whether the jury found defendant not liable because of lack of negligence or lack of proximate cause, or even whether it found him such but that plaintiff had been fully compensated”); Wages v. Sibran, Inc., 171 Ga. App. 14, 18 (3) (318 SE2d 679) (1984) (affirming trial court’s entry of judgment on a verdict in favor of defendant when, notwithstanding erroneous jury instruction on damages, “the wording of the verdict itself demonstrates that it was not the result of the trial court’s erroneous instruction regarding damages” because the jury found that the defendant was not liable); Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982) (reversing verdict entered on judgment in favor of defense after noting that the “error was prejudicial and reversible inasmuch as it is impossible to say the jury’s verdict was unaffected thereby”).

        See supra notes 31-32 & accompanying text.


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A16A1200, A16A1201.
    A16A1202, A16A1203.
    RUEMKER v. RUEMKER (two cases). STANLEY v. RUEMKER (two cases).
    (792 SE2d 727)
   DOYLE, Chief Judge.

Krystal D. Ruemker a/k/a Krystal D. Stanley (“mother”) and Raymond Ruemker (“father”), the biological parents of Leah Ruemker (“ward”), an incapacitated adult, are seeking appointment as her guardian and conservator. On December 21, 2015, the trial court entered an order requiring the mother and her husband, Gregory Stanley (“stepfather”), to appear in court the following morning and produce the ward for travel as directed by the emergency guardian appointed for the pendency of the case. The mother and stepfather failed to appear for the hearing, and on December 22, 2015, the trial court entered an order requiring their immediate incarceration. In Case No. A16A1200, the mother appeals the superior court’s December 21, 2015 order; in Case No. A16A1201, the mother appeals the court’s December 22, 2015 order; in Case No. A16A1202, the stepfather appeals the court’s December 21, 2015 order; and in Case No. A16A1203, the stepfather appeals the court’s December 22, 2015 order. We have consolidated these cases on appeal, and for the reasons that follow, we dismiss all four appeals.

Pursuant to a May 2010 Missouri family court order, the parents had joint physical and legal custody of the ward. On February 22, 2012, shortly before the ward’s eighteenth birthday, the mother filed a guardianship petition in the Probate Court of Houston County, and the father objected. The probate court appointed the parents as co-guardians and established a visitation schedule; the mother appealed that order to the Superior Court of Houston County

While the guardianship case proceeded, the superior court appointed an emergency guardian of the ward pursuant to OCGA §§ 29-4-70 (d) and 2 9-4-16. Following a jury trial, the court entered a final judgment appointing the parents as co-guardians and establishing alternating periods of visitation and domicile in accordance with the verdict. The mother filed a motion for new trial, and in November 2015, the court granted the motion because the ward was not represented by counsel at trial. On October 6, 2015, the superior court entered an order reappointing the same emergency guardian, giving the mother physical custody, and granting the father visitation as directed by the emergency guardian.

On December 21, 2015, the father filed a motion to show cause alleging that he arrived at the mother’s home on December 18, 2015, to retrieve the ward for his holiday visitation as directed by the emergency guardian. According to the father, the mother was home but refused to come to the door, and she ignored his attempts to schedule a time to pick up the ward the following day. On December

21, 2015, the superior court entered an order directing the mother and stepfather to appear in court the following day at 9:00 a.m. and to produce the ward, along with her clothing and belongings for travel to Missouri with the father. The order stated that “[fjailure to appear or to produce [the ward] shall result in an immediate order for incarceration of [the mother and stepfather],” and it scheduled a December 28, 2015 hearing to address whether the mother and stepfather should be held in contempt for their alleged failure to comply with the visitation directed by the emergency guardian.

On December 22, 2015, the mother and stepfather filed separate notices of appeal of the December 21, 2015 order. Also on December 22, the superior court entered an order finding that the mother and stepfather had failed to appear as ordered in the preceding show cause order and directing that the mother and stepfather “be found and immediately incarcerated for failing to produce the ward. . . .” The stepfather appeared before the trial court that same day, and he explained that the sheriff had picked him up from his home that morning. He was not permitted to take his cell phone with him, and he could not recall any of the mother’s phone numbers; the stepfather assured the court, however, that he would assist in locating the mother. That same day — December 22 — the trial court issued an order stating that the stepfather

shall be released to a member of the investigation division of the Houston County Sheriff’s Office. Said officer will transport [the stepfather] to his home where he will attempt to locate [the mother] and [the ward]. He will be released from custody on his own recognizance upon his good faith effort to assist law enforcement in locating [the ward].

The stepfather was released from custody that same day

Both the mother and stepfather filed notices of appeal of the December 22, 2015 order. On December 28,2015, the Superior Court of Houston County entered a kidnapping warrant for the mother, who was arrested on January 5, 2016, in Texas; she was later released from jail. Also on December 28, 2015, the trial court entered an order directing the mother and stepfather to appear before the court on January 14, 2016, “to show cause why they should not be held in contempt and confined to ... [j]ail for their failure to comply with the [c]ourt’s order to release the ward to her father’s care on Friday, December 18, 2015.” On January 19, 2016, the superior court in the instant case entered an order titled “ORDER DISMISSING CONTEMPT AND DENYING RAY REU[M]KER’S MOTION TO SHOW CAUSE.” Therein, after concluding that “there is no further action that the [c]ourt can take to ensure compliance with its December 21, 2015 and December 22, 2015 Orders” and noting that the ward was currently residing with the father, the court dismissed its “prior [o]rders finding [the mother and stepfather] in contempt.”

Case No. A16A1200

1. The mother appeals the superior court’s December 21, 2015 show cause order. We do not have jurisdiction to consider this appeal.

“Two Code sections determine the method for pursuing appeals to this Court: OCGA § 5-6-34, which describes the trial court’s judgments and orders that may be appealed directly, and OCGA § 5-6-35, which lists cases in which an application for appeal is required.” OCGA § 5-6-34 (a) (11) provides a right of direct appeal from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” OCGA § 5-6-34 (a) (2) provides that a direct appeal may be taken from “contempt cases.”

Here, the superior court’s December 21, 2015 show cause order did not include any decision as to custody, nor did it hold or decline to hold any party in contempt of a child custody or any other order. Thus, it is an interlocutory ruling and not directly appealable. Accordingly, this appeal is dismissed.

Case No. A16A1201

2. We also dismiss the mother’s appeal of the December 22, 2015 order. This case is not directly appealable under OCGA § 5-6-34 (a) (11) because the December 22, 2015 order did not include a decision as to custody, nor did it hold or decline to hold any party in contempt of a custody order. The mother, however, argues that the order constituted a contempt order pursuant to OCGA § 15-6-8 (5) and was therefore directly appealable under OCGA § 5-6-34 (a) (2). The father, in contrast, argues that the order was analogous to a bench warrant, the primary purpose of which “is to secure the presence of the defendant in court. [And o]nce the defendant appears in court, the bench warrant is no longer necessary, and has no force and effect.” In considering this argument, we recognize that “the appealability of an order is determined, not by its form or the name given to it by the trial court, but rather by its substance and effect.” Here, the December 22, 2015 order found that the mother and stepfather had failed to appear in court with the ward as required and ordered their immediate incarceration. The order did not, however, decide the penalty for the parties’ failure to appear as directed.

Pretermitting whether the December 22, 2015 order constituted a bench warrant to secure the appearance of the mother or a directly appealable contempt order, this appeal is moot. The mother has been released from custody for her actions in this case, no additional punishment was imposed by the instant court for her failure to appear as directed in the December 21, 2015 order, and, pursuant to the trial court’s subsequent order dismissing any contempt finding, the December 22, 2015 order no longer subjects the mother to jeopardy. Therefore, we dismiss this appeal.

Decided November 2, 2016

Reconsiderations denied November 28, 2016

Jerry A. Landers, Jr., for appellant (case nos. A16A1200, A16A1201).

Lyle & Levine, Alan J. Levine, Dawn R. Levine, for appellant (case nos. A16A1202, A16A1203).

Edwin S. Varner, Jr., for appellee.

Case No. A16A1202

3. For the same reasons set forth in Division 1, the stepfather’s appeal of the superior court’s December 21, 2015 order is dismissed.

Case No. A16A1203

4. For the same reasons set forth in Division 2, the stepfather’s appeal of the superior court’s December 22, 2015 order is dismissed as moot.

Appeals dismissed.

Andrews, P. J., and Ray, J., concur.

       The ward, who was born on March 6, 1994, is developmentally disabled, and it is undisputed that she is in need of a guardian.

       The father lives in Missouri, and the mother lives with the ward in Houston County, Georgia.

       In the order reappointing the guardian, the court noted that it had considered the affidavit of a physician, the deposition of a neuropsychologist, the parties’ stipulation that the ward was in need of a guardian, and the parties’ and witnesses’ testimony at trial.

       The superior court also concluded that the mother’s and stepfather’s notices of appeal of the December 21,2015 order were meritless and failed to divest the court of jurisdiction because the show cause order “in no way [found] the parties in contempt.”

       Thereafter, on January 6, 2016, the trial court entered a third emergency order of guardianship, reappointing the same guardian again and vesting her with decision-making authority regarding visitation, noting that the appointment met the statutory criteria set forth in OCGÁ §§ 29-4-70 and 29-4-16.

        Collins v. Davis, 318 Ga. App. 265, 266 (1) (733 SE2d 798) (2012).

       OCGA § 5-6-34 (a) (11). This Court has applied this Code section to a guardianship case involving custody of a 19-year-old woman requiring care and supervision for her life. See Brabant v. Patton, 315 Ga. App. 711, 712-713 (728 SE2d 244) (2012).

       See Hulsey v. Smith, 223 Ga. 522 (156 SE2d 353) (1967) (“a rule nisi ordering the appellant to show cause” is not a final judgment); Barfield v. Butterworth, 323 Ga. App. 156, 157 (1) (746 SE2d 819) (2013) (physical precedent only) (because “the trial court’s order is not an order ‘awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt’ of such an order, it is not subject to direct appeal”); Fagala v. Morrison, 161 Ga. App. 655, 656 (2) (289 SE2d 528) (1982) (“the order requiring the appellant’s attorney to show cause is not subject to direct appeal because it is not final”).

       We note that in this appeal (as in the other three appeals), the appellant challenges the trial court’s appointment of the emergency guardian and, in doing so, vesting her with decision-making authority regarding visitation, arguing that the trial court failed to ensure compliance with certain statutory requirements including OCGA §§ 29-4-14 (d); 29-4-15 (c) (3); 29-4-16; and 29-4-70 (d). But ÓCGA § 29-4-70 (d), which permits the appointment of an emergency guardian for a ward pending the appeal of a probate court’s final order to superior court, specifically provides that “[t] he appointment of an emergency guardian is not appeal-able.”

        See American Med. Security Group v. Parker, 284 Ga. 102, 104 (5) (663 SE2d 697) (2008) (“criminal contempt imposes unconditional punishment for prior acts of contumacy”); OCGA § 15-6-8 (5) (limiting a superior court’s power to impose fines not exceeding $1,000 or imprisonment not exceeding 20 days for contempt).

       OCGA § 5-6-34 (a) (2) provides a right of direct appeal from judgments “involving . . . contempt cases.”

       (Punctuation omitted.) Allen v. State, 244 Ga. App. 377, 379 (535 SE2d 347) (2000), quoting State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988). See also Martin v. Waters, 151 Ga. App. 149, 150 (2) (259 SE2d 153) (1979) (explaining that “[t]he normal procedure when a party or witness who has been ordered to appear does not do so is to arrest [her] under a bench warrant at which time the cause of the delay can be inquired into” and that sentencing the party to 20 days in jail without holding a contempt hearing is erroneous).

       (Punctuation omitted.) American Med. Security Group, 284 Ga. at 104 (4), quoting First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 885 (655 SE2d 605) (2008).

       See OCGA § 5-6-48 (b) (3) (an appeal shall be dismissed “[w]here the questions presented have become moot”); Higdon v. Higdon, 321 Ga. App. 260, 265 (2) (739 SE2d 498) (2013) (appeal moot where “there is nothing for this Court to review, because the activity sought to be enjoined has already ceased”) (punctuation omitted); Cagle v. PMC Dev. Co. of Ga., 233 Ga. 583, 584 (212 SE2d 765) (1975) (appeal from an order holding the appellant in contempt for trespass was dismissed as moot because “once a contempt judgment has been complied with, or has been vacated, or has been rendered moot in any other manner, there is no remaining case or controversy for adjudication in the appellate court”); Brochin v. Brochin, 294 Ga. App. 406, 407 (1) (669 SE2d 203) (2008).

       As aforementioned, the stepfather was released the same day he was taken into custody after he agreed to make a good faith effort to assist law enforcement in locating the mother and the ward.


author: PHIPPS, Presiding Judge.

text:
    A14A1960.
    BARKING HOUND VILLAGE, LLC et al. v. MONYAK et al.
    (794 SE2d 664)
   PHIPPS, Presiding Judge.

Appellees Robert and Elizabeth Monyak filed a complaint for damages after their dog (a mixed-breed dachshund) suffered acute renal failure following a ten-day stay in a kennel owned and operated by Appellant Barking Hound Village, LLC, and managed by Appellant William Furman. Appellants moved for summary judgment, arguing that because the Monyaks had not demonstrated that the dog had any market value, their claims were barred as a matter of law.

The trial court disagreed. It found that the Monyaks could introduce evidence at trial of the actual value of the dog to them, “as demonstrated by reasonable veterinary and other expenses incurred in treating [the dog’s] illness.” The Monyaks could also present evidence of “non-economic factors” demonstrating the dog’s intrinsic value.

On appeal, we reversed in part, holding that damages for the intrinsic value of the dog were not recoverable. We affirmed the trial court’s ruling that the Monyaks could present evidence of “the actual value of the dog to them as demonstrated by reasonable veterinary and other expenses incurred in treating the dog’s illness.” The Supreme Court granted certiorari, affirming in part and reversing in part our decision.

The Supreme Court held that “the proper measure of damages recoverable by the Monyaks for the negligent injury and death of their dog includes both the dog’s fair market value plus interest and any reasonable medical costs and other expenses they incurred in treating the animal for its injuries.” Although the Monyaks may not recover damages based on the sentimental value of the dog, they may introduce both qualitative and quantitative evidence of the dog’s particular attributes to describe its value. “The key is ensuring that such evidence relates to the value of the dog in a fair market, not the value of the dog solely to its owner.”

In addition to recovering the fair market value of their deceased dog plus interest, the Monyaks can “recover the reasonable veterinary and other expenses they reasonably incurred in trying to save her.” The Monyaks have the burden of establishing the reasonableness of any medical treatment, as well as the reasonableness of the cost of that treatment, in light of all attending circumstances. Accordingly, we remand this case to the trial court for further proceedings consistent with the opinion of the Supreme Court.

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

Ellington, P. J., and McMillian, J., concur.

Decided November 28, 2016.

Hall Booth Smith, Joel L. McKie, Andrew K. Hazen, Mary A. Battey, for appellants.

Peters & Monyak, Jonathan C. Peters, Robert P Monyak, for appellees.

Sutherland, Asbill & Brennan, Katherine M. Smallwood; Bryan Cave, Jennifer D. Odom, Ann W. Ferebee; Shook, Hardy & Bacon, Leonard Searcy II, amici curiae.

       The trial court also denied Appellants’ alternative request for partial summary judgment on the Monyaks’ punitive damages claim. Appellants did not challenge this ruling on appeal.

        Barking Hound Village v. Monyak, 331 Ga. App. 811, 815 (1) (771 SE2d 469) (2015) (physical precedent only), affirmed in part and reversed in part by Barking Hound Village v. Monyak, 299 Ga. 144 (787 SE2d 191) (2016).

       Id. at 814 (1) (punctuation omitted; emphasis supplied).

        Barking Hound Village, supra, 299 Ga. 144.

       Id. at 151 (2) (emphasis in original).

       Id. at 152 (4).

       Id. at 153 (4).

       Id.

       Id. at 153 (5).

       Id. at 154 (5).


text:
    A16A0912.
    O’NEAL v. CRAWFORD COUNTY.
    (792 SE2d 498)
   DOYLE, Chief Judge.

Crawford County Coroner David Allen O’Neal filed a declaratory judgment/mandamus action against Crawford County (the “County”). After granting summary judgment to the County, the trial court assessed attorney fees against O’Neal and his counsel pursuant to OCGA § 9-15-14 (a) and (b), awarding the County not only its attorney fees and expenses, but also requiring that O’Neal and his counsel repay the attorney fees he incurred and that were paid directly to his attorney by the County on his behalf. In this discretionary appeal, O’Neal argues that the trial court erred by requiring him to repay the County for the sums it paid to his attorney. For the reasons that follow, we affirm in part and reverse in part.

O’Neal is the long-time coroner for the County. The record shows that in 2013, he requested that the County increase his budget to allow for a County-owned vehicle, nicer office accommodations “as any other elected official,” and home Internet and phone service. The County took his requests under advisement, and in April 2014, O’Neal formally requested the County approve funding of an independent attorney, as he was considering bringing a cause of action against the County. The Board of Commissioners voted to approve his request for “funding of an independent attorney” and paid O’Neal’s legal fees directly to his attorney.

O’Neal then filed his petition for declaratory judgment, a writ of mandamus, injunctive relief, and judicial review, seeking to compel the County to provide him with certain items, including contingent expenses, a vehicle, a secure office, and Internet, telephone, and fax services at his home, citing a local act. The County moved for summary judgment, and the trial court granted the motion as to all counts, finding that O’Neal’s petition was “meritless and frivolous.” In its order, the trial court noted that “[mjandamus will issue against a public official only where the petitioner has demonstrated a clear legal right to relief or a gross abuse of discretion.” Because the County was vested with discretion in providing any supplies, the trial court found that O’Neal could prove neither a clear legal right nor an abuse of discretion. The court also found that O’Neal improperly brought the action against the County rather than its individual Board members. Further, the court castigated O’Neal for his “utter fail[ure]” to respond to the motion for summary judgment or to submit admissible evidence to prove his case, and it invited the County to seek attorney fees and costs as authorized by OCGA § 9-15-14.

Accepting the trial court’s invitation, the County moved for attorney fees under OCGA § 9-15-14 (a) and (b), seeking payment of its own attorney fees and recoupment of the payments it made to O’Neal’s attorney Following a hearing, the trial court entered a lengthy order requiring O’Neal to pay $106,670.68 in attorney fees pursuant to OCGA § 9-15-14 (a) and (b), including $36,183 to reimburse the County for money it paid to O’Neal’s attorney. The trial court noted that awarding the recoupment of such attorney fees as an expense of litigation was “a question of first impression,” but concluded that such an interpretation was consonant with the purpose of OCGA § 9-15-14 to punish or deter and also to recompense litigants.

O’Neal filed an application for discretionary review of the trial court’s ruling permitting the County to recoup the money it paid to O’Neal’s attorney. This Court granted the application, and this appeal followed.

1. In his appellate brief, O’Neal challenges the entire $106,670.68 attorney fee award, including both the portion the County paid for its own attorneys and that portion it paid directly to O’Neal’s attorney. In his application for discretionary review, however, O’Neal challenged only that portion of the award permitting the County to recoup the fees paid to his attorney. In discretionary appeals, review is “limited to the errors actually enumerated in the application.” Accordingly, we need address only that portion of the award requiring O’Neal to repay the County the attorney fees it paid directly to O’Neal’s attorney.

We note, however, even if O’Neal had not waived his argument that the trial court erred by requiring him to pay the County for the fees it paid to its own attorneys, his argument is premised on a contention that the County entered into an agreement to pay its own attorney fees. Because he has failed to provide any proof in the record showing such an agreement, and the record supports the trial court’s findings that O’Neal violated OCGA § 9-15-14 (a) and (b), and the fees and expenses incurred by the County were reasonable and necessary, this argument is without merit, and we affirm the trial court’s grant of summary judgment as to the award to the County encompassing its own attorney fees and expenses.

2. O’Neal contends that the trial court erred by permitting the County to recoup the attorney fees it paid directly to his attorney because he and the County entered into an agreement that it would do so, citing Rivergate Corp. v. McIntosh for the general principle that parties are free to contract about any subject matter, and courts will enforce the agreement as written unless it is prohibited by statute or public policy. O’Neal is correct that parties are free to contract about any subject matter and agreements to pay for another’s attorney fees and expenses of litigation are enforceable. The County, however, vehemently denies that it entered into any contract to pay legal fees, contending there was no consideration for any such agreement, and thus no contract as a matter of law.

Pretermitting whether there was sufficient consideration to form a valid contract, however, the trial court improperly allowed the County to recoup attorney fees paid to O’Neal’s attorney pursuant to County approval as an expense of litigation. OCGA § 9-15-14 provides, in relevant part:

(a) In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.
(b) The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

Not all money expended because of litigation can be recovered, however. Subsection (d) of OCGA § 9-15-14 provides: “Attorney’s fees and expenses of litigation awarded under this Code section shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party . .

Decided November 15, 2016

Reconsideration denied November 29, 2016

B. Michelle Smith, for appellant.

James Bates Brannan Groover, Duke R. Groover, Natalie D. Stroud, for appellee.

Here, the payments made to O’Neal’s attorney were not necessary for defending or asserting the County’s rights as required by OCGA § 9-15-14 (d). Accordingly, we reverse that portion of the attorney fee award allocated to reimbursing the County for the sums it paid directly to O’Neal’s attorney.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Miller, P. J., concur.

       In his appellate brief, O’Neal also argues that the fee award in favor of the County for its attorney fees and expenses of litigation it incurred should be reversed. But for the reasons set forth in Division 1, we decline to address this argument.

       O’Neal stated a “Cadillac would be nice.”

       According to the minutes of a hearing of the County Board of Commissioners, O’Neal formally requested the [Board] to approve funding of an independent attorney, as he considered bringing a “cause of action” against the Board. . . . [The] County Attorney... stated that the law was clear regarding action between County Officers and that in this instance the County Attorney had an absolute conflict of interest and that each side would need independent couns[e]l. . . . After some discussion[, a Board member] made the motion to approve the request [, which motion was] seconded[,] and the motion carried 5-0.

       House Bill 685 provides in relevant part that the County must furnish to the coroner, in its “sole discretion,” “[a]ll supplies, materials, furnishings, furniture, utilities, and equipment ... as may be reasonably required in discharging the official duties [.] Ga. L. 2001, p. 3737, §4.

       (Punctuation omitted.) City of Roswell v. Fellowship Christian School, 281 Ga. 767, 767 (1) (642 SE2d 824) (2007).

       The award was entered against O’Neal “and his attorney, jointly and severally.”

        Zekser v. Zekser, 293 Ga. 366, 369 (2) (744 SE2d 698) (2013).

       205 Ga. App. 189, 192 (421 SE2d 737) (1992).

       O’Neal also argues, for the first time on appeal that any judgment against him would be paid from his coroner budget because he filed the lawsuit in his official rather than his individual capacity. This issue is not properly before us, however, because it was not litigated below, and it is beyond the scope of O’Neal’s application.

       See Cheeley Investments v. Zambetti, 332 Ga. App. 115, 116-119 (1) (770 SE2d 350) (2015).

       See, e.g., Bankston v. Washington, 319 Ga. App. 821, 823 (3) (738 SE2d 656) (2013) (holding that “the purchase of airline tickets as a result of [a] visitation dispute . . . was not an expense of litigation recoverable in a sanction award pursuant to OCGA § 9-15-14 (b)”).

       See id. We note that pursuant to Gwinnett County v. Yates, 265 Ga. 504, 508-509 (2) (458 SE2d 791) (1995), the County could have elected not to pay to retain independent counsel at the outset and would only have been forced to pay the fees as an expense of government operation if O’Neal was successful in asserting his position.


author: McFADDEN, Judge.

text:
    A16A0811.
    McCLARTY v. TRIGILD INCORPORATED et al.
    (794 SE2d 408)
   McFADDEN, Judge.

This is the second appearance of this premises liability case before us. In McClarty v. Trigild, Inc., 333 Ga. App. 112 (775 SE2d 597) (2015), we vacated the trial court’s judgment on a jury verdict in favor of defendant Trigild Incorporated, and we remanded the case with direction for the trial court to determine the sufficiency of Trigild’s response to one of plaintiff Emma McClarty’s requests for admission and to conduct other proceedings consistent with that determination and not inconsistent with our opinion. Id. at 115-116 (2). McClarty now appeals from the trial court’s ruling on remand, in which the trial court decided that Trigild had made an admission but reentered the judgment on the prior jury verdict anyway, thereby preventing McClarty from presenting evidence of and argument about that admission to a jury Because the reentry of the judgment was not consistent with the trial court’s rulings on the admission, we reverse.

Our earlier opinion in this case sets forth the facts and procedural history in detail. See McClarty, 333 Ga. App. 112. Pertinently, McClarty brought an action alleging that she was injured when a ceiling in a motel operated by Trigild collapsed on top of her. In discovery, she propounded a request for admission upon Trigild, asking that it admit that “[t]he condition on the premises that led to the ceiling’s collapse and fall on Ms. Emma McClarty was a hazardous condition.” McClarty moved for the trial court to determine whether Trigild’s response to this request was sufficient, see OCGA § 9-11-36 (a) (3), but the trial court denied the motion on the ground that the request itself was inappropriate. The case proceeded to trial, where a jury returned a verdict for Trigild.

On appeal, we held that the trial court erred in finding the request for admission inappropriate and denying McClarty’s motion without determining the sufficiency of Trigild’s response. McClarty, 333 Ga. App. at 115 (2). We stated that “[t]he issues of whether the response was insufficient and, if so, what course of action should be taken were determinations for the trial court to make in his discretion.” Id. (citations omitted). We further stated that the trial court’s determinations on those issues “could have affected the evidence presented to the jury at trial on the key issue of the existence of a hazardous condition[.]” Id. Accordingly, we “vacate[d] the judgment that the trial court entered on the jury’s verdict and remand[ed] the case for the trial court to rule on the sufficiency of Trigild’s response to [the] request[.]” Id. at 115-116 (2). We directed:

If on remand the trial court rules that Trigild’s response was sufficient, then the court may reenter the judgment on the jury verdict and McClarty may appeal from that judgment. ... If the trial court rules that Trigild’s response was insufficient, however, he then “may order either that the matter is admitted or that an amended answer be served,” OCGA § 9-11-36 (a) (3), and conduct further proceedings consistent with his ruling and not inconsistent with this opinion.

Id. at 116 (2).

On remand, the trial court “asked the parties to brief how this matter should proceed upon the court’s determination of the sufficiency of Trigild’s response to [the] request[.]” Trigild did not file a brief. McClarty filed a brief in which she argued that if the trial court found Trigild’s response insufficient and ordered that the matter was admitted, then she should receive a new trial.

The trial court then ruled that Trigild’s response was insufficient and ordered that the matter was admitted under OCGA § 9-11-36, which governs requests for admissions and provides that “[a]ny matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b). Instead of granting McClarty a new trial, however, the trial court reentered judgment on the prior jury verdict for Trigild. As a result, McClarty had no opportunity to present evidence of Trigild’s admission or argue its conclusive effect to the jury that decided the case. McClarty argues that this was error, and we agree.

An admission under OCGA § 9-11-36 is substantive evidence and must be placed into evidence at trial in some form to be considered by the factfinder. Vis v. Harris, 329 Ga. App. 129, 134 (1) (a) (764 SE2d 156) (2014); Brooks v. Roley & Roley Engineers, 144 Ga. App. 101, 102 (1) (240 SE2d 596) (1977). Moreover, an admission under OCGA § 9-11-36 is “conclusively established as a matter of law.” Vis, 329 Ga. App. at 135 (1) (b). It is comparable to a judicial admission, rather than an evidentiary admission. See Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 771 (691 SE2d 653) (2010); Vaughn v. Metropolitan Property & Cas. Ins. Co., 260 Ga. App. 573, 574 (3) (580 SE2d 323) (2003); Pulte Home Corp. v. Woodland Nursery & Landscapes, 230 Ga. App. 455 (1) (496 SE2d 546) (1998); Britt v. West Coast Cycle, 198 Ga.App. 525, 526 (1) (402 SE2d 121) (1991). It is binding, Vaughn, 260 Ga. App. at 575 (3), and “relieves] the opposing party from the need of any evidence, as to th[e] matter [admitted].” Jabaley v. Jabaley, 208 Ga. App. 179 (1) (430 SE2d 119) (1993) (citation and punctuation omitted). Unless the trial court allows the admission to be withdrawn, seeOCGA § 9-11-36 (b), the admission is not subject to contradiction or explanation. Jackson, 302 Ga. App. at 771; Vaughn, 260 Ga. App. at 574 (3); Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) (1987). The factfinder cannot consider any evidence inconsistent with the binding effect of the admission. See Jackson, 302 Ga. App. at 771; Vaughn, 260 Ga. App. at 575 (3); Pulte Home Corp., 230 Ga.App. at 455 (1); Piedmont Aviation., 181 Ga. App. at 731 (2).

By reentering judgment on a verdict reached by a jury before the trial court ordered that Trigild had admitted a matter under OCGA § 9-11-36, the trial court essentially withdrew Trigild’s admission from the jury’s consideration. This was error. The trial court was not authorized to withdraw the admission when Trigild had not moved for withdrawal. See Vis, 329 Ga.App. at 135 (1) (b). Likewise, the trial court was not authorized to prevent McClarty from arguing the effect of the admission to the jury See id. at 136 (1) (c).

The trial court based his ruling on a determination that, under OCGA § 9-11-61, McClarty was not entitled to a new trial because she had not shown that she was harmed by her inability to present evidence of and argue the conclusive effect of Trigild’s admission to the jury that reached the verdict in her case. That Code section, entitled “Harmless error,” provides:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

OCGA § 9-11-61. For purposes of this analysis we pretermit the issue of whether OCGA § 9-11-61 applies to a trial court’s reentry of a previously-vacated judgment on a jury verdict reached in a case in which error had occurred. Even if OCGA § 9-11-61 applies to this case, the trial court’s error in reentering the judgment was harmful and must be reversed.

Error ordinarily is presumed harmful “unless it appears to have had no effect upon the result of the trial.” Foster v. Harmon , 145 Ga. App. 413, 415 (1) (243 SE2d 659) (1978) (citation omitted) (addressing predecessor to OCGA § 9-11-61). Trigild, however, offeredno rebuttal of this presumption to the trial court; it did not respond to the trial court’s request for briefs on the issue of how the matter should proceed.

Moreover, in Vis, 329 Ga. App. 129, we declined to find that a similar trial court error was harmless. In Vis, as in this case, the trial court erred in preventing the plaintiff from arguing to the jury the conclusive effect of the defendant’s admissions. Id. at 135 (1) (b), 136 (1) (c). The defendant argued that this error was harmless because evidence of the admissions had been put into the record. Id. at 135 (1) (b). We disagreed, holding that “while the trial court did not instruct the jury to disregard the admissions that had been entered into evidence, neither would it allow [the plaintiff] to argue their conclusive effect to the jury Thus, we cannot say that the trial court’s ruling on the admissions was harmless.” Id. In this case, Trigild’s assertion on appeal that the trial court’s ruling was harmless is even weaker than that in Vis, because the ruling also prevented McClarty from presenting evidence of the admission to the jury at all.

We are not persuaded by arguments that the error was harmless because the jury heard other evidence of the matter admitted — the existence of a hazardous condition — and because Trigild did not challenge that matter at trial. McClarty based her action against Trigild on a theory of premises liability To prevail on this cause of action, she bore the burden of proving, among other things, that a hazardous condition existed. See Taylor v. Thunderbird Lanes, 324 Ga. App. 167, 169-170 (1) (748 SE2d 308) (2013). Trigild’s counsel emphasized McClarty’s burden to the jury in his opening statement and closing argument.

Decided October 11, 2016

Reconsideration denied November 30, 2016.

Sanders Law Group, Julian L. Sanders, for appellant.

Dodson & Associates, Joseph D. Perrotta, for appellees.

Trigild’s admission that “[t]he condition on the premises that led to the ceiling’s collapse and fall on Ms. Emma McClarty was a hazardous condition” went straight to that essential element of McClarty’s claim. The conclusive nature of the admission relieved McClarty of any obligation to prove this fact to the jury, Jabaley, 208 Ga. App. at 179 (1), but the jury was not told of this exception to McClarty’s burden of proof. The conclusive nature of the admission also precluded the jury from disbelieving this fact based on other evidence, Piedmont Aviation, 181 Ga. App. at 732 (2), but again the jury was not informed of this restriction. While other evidence might have also addressed the admitted fact, that other evidence could not substitute for the admission because, unlike the admission, the other evidence was not conclusive in nature and the jury was free to disbelieve it. Compare Piedmont Aviation, 181 Ga. App. at 731 (2) (distinguishing between conclusive judicial admission, which relieves party from the need of any evidence, and other forms of evidence, which are “merely... item[s] in the mass of evidence”) with Travelers Ins. Co. v. Trans State, 172 Ga. App. 763, 765 (2) (324 SE2d 585) (1984) (finding exclusion of transcript of testimony, purportedly constituting admission, was not harmful where other evidence of same fact was presented to jury). Because the trial court’s ruling deprived McClarty of the opportunity to inform the jury that one of the essential elements of her action had been proven as a matter of law, “we cannot say that the trial court’s ruling . . . was harmless.” Vis, 329 Ga. App. at 135 (1) (b).

Judgment reversed.

Miller, P. J., and McMillian, J., concur.